1. MAXIMO CALALANG vs A.D.

WILLIAMS
MAXIMO CALALANG,
Petitioner,
-versusA.D. WILLIAMS, ET AL.,
Respondents.

G.R. No. 47800 December 2, 1940

x--------------------------------------------------x
DECISION
LAUREL, J.:
Maximo Calalang, in his capacity as a private citizen and as a taxpayer of Manila,
brought before this court this petition for a writ of prohibition against the
respondents, A. D. Williams, as Chairman of the National Traffic Commission;
Vicente Fragante, as Director of Public Works; Sergio Bayan, as Acting Secretary of
Public Works and Communications; Eulogio Rodriguez, as Mayor of the City of
Manila;
and Juan Dominguez, as Acting Chief of Police of Manila.
It is alleged in the petition that the National Traffic Commission, in its resolution of
July 17, 1940, resolved to recommend to the Director of Public Works and to the
Secretary of Public Works and Communications that animal-drawn vehicles be
prohibited from passing along Rosario Street extending from Plaza Calderon de la
Barca to Dasmarias Street, from 7:30 a.m. to 12:30 p.m. and from 1:30 p.m. to
5:30 p.m.; and along Rizal Avenue extending from the railroad crossing at Antipolo
Street to Echague Street, from 7 a.m. to 11 p.m., from a period of one year from
the date of the opening of the Colgante Bridge to traffic; that the Chairman of the
National Traffic Commission, on July 18, 1940 recommended to the Director of
Public Works the adoption of the measure proposed in the resolution
aforementioned, in pursuance of the provisions of Commonwealth Act No. 548
which authorizes said Director of Public Works, with the approval of the Secretary
of Public Works and Communications, to promulgate rules and regulations to
regulate and control the use of and traffic on national roads; that on August 2,
1940, the Director of Public Works, in his first indorsement to the Secretary of
Public Works and Communications, recommended to the latter the approval of the
recommendation made by the Chairman of the National Traffic Commission as
aforesaid, with the modification that the closing of Rizal Avenue to traffic to
animal-drawn vehicles be limited to the portion thereof extending from the
railroad crossing at Antipolo Street to Azcarraga Street; that on August 10, 1940,
the Secretary of Public Works and Communications, in his second indorsement
addressed to the Director of Public Works, approved the recommendation of the
latter that Rosario Street and Rizal Avenue be closed to traffic of animal-drawn
vehicles, between the points and during the hours as above indicated, for a period
of one year from the date of the opening of the Colgante Bridge to traffic; that the
Mayor of Manila and the Acting Chief of Police of Manila have enforced and caused
to be enforced the rules and regulations thus adopted; that as a consequence of
such enforcement, all animal-drawn vehicles are not allowed to pass and pick up
passengers in the places abovementioned to the detriment not only of their
owners but of the riding public as well.

It is contended by the petitioner that Commonwealth Act No. 548 by which the
Director of Public Works, with the approval of the Secretary of Public Works and
Communications, is authorized to promulgate rules and regulations for the
regulation and control of the use of and traffic on national roads and streets is
unconstitutional because it constitutes an undue delegation of legislative power.
This contention is untenable. As was observed by this court in Rubi vs. Provincial
Board of Mindoro (39 Phil, 660, 700), The rule has nowhere been better stated
than in the early Ohio case decided by Judge Ranney, and since followed in a
multitude of cases, namely: The true distinction therefore is between the
delegation of power to make the law, which necessarily involves a discretion as to
what it shall be, and conferring an authority or discretion as to its execution, to be
exercised under and in pursuance of the law. The first cannot be done; to the
latter no valid objection can be made. (Cincinnati, W. & Z. R. Co. vs. Commrs.
Clinton County, 1 Ohio St., 88.) Discretion, as held by Chief Justice Marshall in
Wayman vs. Southard (10 Wheat., 1) may be committed by the Legislature to an
executive department or official. The Legislature may make decisions of executive
departments or subordinate officials thereof, to whom it has committed the
execution of certain acts, final on questions of fact. (U.S. vs. Kinkead, 248 Fed.,
141.) The growing tendency in the decisions is to give
prominence to the necessity of the case.
Section 1 of Commonwealth Act No. 548 reads as follows:
SECTION 1. To promote safe transit upon, and avoid obstructions on, roads and
streets designated as national roads by acts of the National Assembly or by
executive orders of the President of the Philippines, the Director of Public Works,
with the approval of the Secretary of Public Works and Communications, shall
promulgate the necessary rules and regulations to regulate and control the use of
and traffic on such roads and streets. Such rules and regulations, with the
approval of the President, may contain provisions controlling or regulating the
construction of buildings or other structures within a reasonable distance from
along the national roads. Such roads may be temporarily closed to any or all
classes of traffic by the Director of Public Works and his duly authorized
representatives whenever the condition of the road or the traffic thereon makes
such action necessary or advisable in the public convenience and interest, or for a
specified period, with the approval of the Secretary of Public Works and
Communications.
The above provisions of law do not confer legislative power upon the Director of
Public Works and the Secretary of Public Works and Communications. The
authority therein conferred upon them and under which they promulgated the
rules and regulations now complained of is not to determine what public policy
demands but merely to carry out the legislative policy laid down by the National
Assembly in said Act, to wit, to promote safe transit upon and avoid obstructions
on, roads and streets designated as national roads by acts of the National
Assembly or by executive orders of the President of the Philippines and to close
them temporarily to any or all classes of traffic whenever the condition of the
road or the traffic makes such action necessary or advisable in the public
convenience and interest. The delegated power, if at all, therefore, is not the
determination of what the law shall be, but merely the ascertainment of the facts
and circumstances upon which the application of said law is to be predicated. To
promulgate rules and regulations on the use of national roads and to determine
when and how long a national road should be closed to traffic, in view of the

condition of the road or the traffic thereon and the requirements of public
convenience and interest, is an administrative function which cannot be directly
discharged by the National Assembly. It must depend on the discretion of some
other government official to whom is confided the duty of determining whether
the proper occasion exists for executing the law. But it cannot be said that the
exercise of such discretion is the making of the law. As was said in Lockes Appeal
(72 Pa. 491): To assert that a law is less than a law, because it is made to depend
on a future event or act, is to rob the Legislature of the power to act wisely for the
public welfare whenever a law is passed relating to a state of affairs not yet
developed, or to things future and impossible to fully know. The proper
distinction the court said was this: The Legislature cannot delegate its power to
make the law; but it can make a law to delegate a power to determine some fact
or state of things upon which the law makes, or intends to make, its own action
depend. To deny this would be to stop the wheels of government. There are many
things upon which wise and useful legislation must depend which cannot be
known to the law-making power, and, must, therefore, be a subject of inquiry and
determination outside of the halls of legislation. (Field vs. Clark, 143 U. S. 649,
694; 36 L. Ed. 294.)
In the case of People vs. Rosenthal and Osmea, G.R. Nos. 46076 and 46077,
promulgated June 12, 1939, and in Pangasinan Transportation vs. The Public
Service Commission, G.R. No. 47065, promulgated June 26, 1940, this Court had
occasion to observe that the principle of separation of powers has been made to
adapt itself to the complexities of modern governments, giving rise to the
adoption, within certain limits, of the principle of subordinate legislation, not
only in the United States and England but in practically all modern governments.
Accordingly, with the growing complexity of modern life, the multiplication of the
subjects of governmental regulations, and the increased difficulty of administering
the laws, the rigidity of the theory of separation of governmental powers has, to a
large extent, been relaxed by permitting the delegation of greater powers by the
legislative and vesting a larger amount of discretion in administrative and
executive officials, not only in the execution of the laws, but also in the
promulgation of certain rules and regulations calculated to promote public
interest.
The petitioner further contends that the rules and regulations promulgated by the
respondents pursuant to the provisions of Commonwealth Act No. 548 constitute
an unlawful interference with legitimate business or trade and abridge the right to
personal liberty and freedom of locomotion. Commonwealth Act No. 548 was
passed by the National Assembly in the exercise of the paramount police power of
the state.
Said Act, by virtue of which the rules and regulations complained of were
promulgated, aims to promote safe transit upon and avoid obstructions on
national roads, in the interest and convenience of the public. In enacting said law,
therefore, the National Assembly was prompted by considerations of public
convenience and welfare. It was inspired by a desire to relieve congestion of
traffic. which is, to say the least, a menace to public safety. 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 (U.S. vs. Gomez Jesus, 31 Phil., 218). 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. The
moment greater authority is conferred upon the government, logically so much is
withdrawn from the residuum of liberty which resides in the people. The paradox
lies in the fact that the apparent curtailment of liberty is precisely the very means
of insuring its preservation.
The scope of police power keeps expanding as civilization advances. As was said
in the case of Dobbins vs. Los Angeles (195 U.S. 223, 238; 49 L. ed. 169), the
right to exercise the police power is a continuing one, and a business lawful today
may in the future, because of the changed situation, the growth of population or
other causes, become a menace to the public health and welfare, and be required
to yield to the public good. And in People vs. Pomar (46 Phil., 440), it was
observed that advancing civilization is bringing within the police power of the
state today things which were not thought of as being within such power
yesterday. The development of civilization, the rapidly increasing population, the
growth of public opinion, with an increasing desire on the part of the masses and
of the government to look after and care for the interests of the individuals of the
state, have brought within the police power many questions for regulation
which formerly were not so considered.
The petitioner finally avers that the rules and regulations complained of infringe
upon the constitutional precept regarding the promotion of social justice to insure
the well-being and economic security of all the people. The promotion of social
justice, however, is to be achieved not through a mistaken sympathy towards any
given group. Social justice is neither communism, nor despotism, nor atomism,
nor anarchy, but the humanization of laws and the equalization of social and
economic forces by the State so that justice in its rational and objectively secular
conception may at least be approximated. Social justice means the promotion of
the welfare of all the people, the adoption by the Government of measures
calculated to insure economic stability of all the competent elements of society,
through the maintenance of a proper economic and social equilibrium in the
interrelations of the members of the community, constitutionally, through the
adoption of measures legally justifiable, or extraconstitutionally, through the
exercise of powers underlying the existence of all governments on the timehonored principle of salus populi est suprema lex. Social justice, therefore, must
be founded on the recognition of the necessity of interdependence among divers
and diverse units of a society and of the protection that should be equally and
evenly extended to all groups as a combined force in our social and economic life,
consistent with the fundamental and paramount objective of the state of
promoting the health, comfort, and quiet of all persons, and of bringing about the
greatest good to the greatest number.
IN VIEW OF THE FOREGOING, the Writ of Prohibition Prayed for is hereby denied,
with costs against the petitioner. So ordered.
Avancea,C.J., Imperial, Diaz and Horrilleno, JJ., concur.
2.
Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-5060

January 26, 1910

THE UNITED STATES, plaintiff-appellee,

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

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

dispose of them to others. But the usefulness of this elaborate and compulsory
system of identification, resting as it does on the official registry of the brands and
marks on each separate animal throughout the Islands, would be largely impaired,
if not totally destroyed, if such animals were requiring proof of ownership and the
production of certificates of registry by the person slaughtering or causing them
to be slaughtered, and this especially if the animals were slaughtered privately or
in a clandestine manner outside of a municipal slaughterhouse. Hence, as it would
appear, sections 30 and 33 prohibit and penalize the slaughter for human
consumption or killing for food at a municipal slaughterhouse of such animals
without a permit issued by the municipal treasurer, and section 32 provides for
the keeping of detailed records of all such permits in the office of the municipal
and also of the provincial treasurer.
If, however, the construction be placed on these sections which is contended for
by the appellant, it will readily be seen that all these carefully worked out
provisions for the registry and record of the brands and marks of identification of
all large cattle in the Islands would prove in large part abortion, since thieves and
persons unlawfully in possession of such cattle, and naturally would, evade the
provisions of the law by slaughtering them outside of municipal slaughterhouses,
and thus enjoy the fruits of their wrongdoing without exposing themselves to the
danger of detection incident to the bringing of the animals to the public
slaughterhouse, where the brands and other identification marks might be
scrutinized and proof of ownership required.
Where the language of a statute is fairly susceptible of two or more constructions,
that construction should be adopted which will most tend to give effect to the
manifest intent of the lawmaker and promote the object for which the statute was
enacted, and a construction should be rejected which would tend to render
abortive other provisions of the statute and to defeat the object which the
legislator sought to attain by its enactment. We are of opinion, therefore, that
sections 30 and 33 of the Act prohibit and penalize the slaughtering or causing to
be slaughtered for human consumption of large cattle at any place without the
permit provided for in section 30.
It is not essential that an explanation be found for the express prohibition in these
sections of the "killing for food at a municipal slaughterhouse" of such animals,
despite the fact that this prohibition is clearly included in the general prohibition
of the slaughter of such animals for human consumption anywhere; but it is not
improbable that the requirement for the issue of a permit in such cases was
expressly and specifically mentioned out of superabundance of precaution, and to
avoid all possibility of misunderstanding in the event that some of the
municipalities should be disposed to modify or vary the general provisions of the
law by the passage of local ordinances or regulations for the control of municipal
slaughterhouse.
Similar reasoning applied to the specific provisions of section 31 of the Act leads
to the same conclusion. One of the secondary purposes of the law, as set out in
that section, is to prevent the slaughter for food of carabaos fit for agricultural
and draft purposes, and of all animals unfit for human consumption. A
construction which would limit the prohibitions and penalties prescribed in the
statute to the killing of such animals in municipal slaughterhouses, leaving
unprohibited and unpenalized their slaughter outside of such establishments, so
manifestly tends to defeat the purpose and object of the legislator, that unless

imperatively demanded by the language of the statute it should be rejected; and,

as we have already indicated, the language of the statute is clearly susceptible of
the construction which we have placed upon it, which tends to make effective the
provisions of this as well as all the other sections of the Act.
It appears that the defendant did in fact apply for a permit to slaughter his
carabao, and that it was denied him on the ground that the animal was not unfit
"for agricultural work or for draft purposes." Counsel for appellant contends that
the statute, in so far as it undertakes to penalize the slaughter of carabaos for
human consumption as food, without first obtaining a permit which can not be
procured in the event that the animal is not unfit "for agricultural work or draft
purposes," is unconstitutional and in violation of the terms of section 5 of the
Philippine Bill (Act of Congress, July 1, 1902), which provides that "no law shall be
enacted which shall deprive any person of life, liberty, or property without due
process of law."
It is not quite clear from the argument of counsel whether his contention is that
this provision of the statute constitutes a taking of property for public use in the
exercise of the right of eminent domain without providing for the compensation of
the owners, or that it is an undue and unauthorized exercise of the police power
of the State. But whatever may be the basis of his contention, we are of opinion,
appropriating, with necessary modifications understood, the language of that
great jurist, Chief Justice Shaw (in the case of Com. vs. Tewksbury, 11 Met., 55,
where the question involved was the constitutionality of a statute prohibiting and
penalizing the taking or carrying away by any person, including the owner, of any
stones, gravel, or sand, from any of the beaches in the town of Chesea,) that the
law in question "is not a taking of the property for public use, within the meaning
of the constitution, but is a just and legitimate exercise of the power of the
legislature to regulate and restrain such particular use of the property as would be
inconsistent with or injurious to the rights of the public. All property is acquired
and held under the tacit condition that it shall not be so used as to injure the
equal rights of others or greatly impair the public rights and interest of the
community."
It may be conceded that the benificial use and exclusive enjoyment of the
property of all carabao owners in these Islands is to a greater or less degree
interfered with by the provisions of the statute; and that, without inquiring what
quantum of interest thus passes from the owners of such cattle, it is an interest
the deprivation of which detracts from their right and authority, and in some
degree interferes with their exclusive possession and control of their property, so
that if the regulations in question were enacted for purely private purpose, the
statute, in so far as these regulations are concerned, would be a violation of the
provisions of the Philippine Bill relied on be appellant; but we are satisfied that it
is not such a taking, such an interference with the right and title of the owners, as
is involved in the exercise by the State of the right of eminent domain, so as to
entitle these owners to compensation, and that it is no more than "a just restrain
of an injurious private use of the property, which the legislature had authority to
impose."
In the case of Com. vs. Alger (7 Cush., 53, 84), wherein the doctrine laid down in
Com. vs. Tewksbury (supra) was reviewed and affirmed, the same eminent jurist
who wrote the former opinion, in distinguishing the exercise of the right of

eminent domain from the exercise of the sovereign police powers of the State,
said:
We think it is settled principle, growing out of the nature of well-ordered civil
society, that every holder of property, however absolute and unqualified may be
his title, holds it under the implied liability that his use of it may be so regulated
that is shall not be injurious to the equal enjoyment of others having an equal
right to the enjoyment of their property, nor injurious to the rights of the
community. . . . Rights of property, like all other social and conventional rights, are
subject to such reasonable limitations in their enjoyment as shall prevent them
from being injurious, and to such reasonable restrain and regulations establish by
law, as the legislature, under the governing and controlling power vested in them
by the constitution, may think necessary and expedient.
This is very different from the right of eminent domain, the right of a government
to take and appropriate private property to public use, whenever the public
exigency requires it; which can be done only on condition of providing a
reasonable compensation therefor. The power we allude to is rather the police
power, the power vested in the legislature by the constitution, to make, ordain,
and establish all manner of wholesome and reasonable laws, statutes, and
ordinances, either with penalties or without, not repugnant to the constitution, as
they shall judge to be for the good and welfare of the commonwealth, and of the
subjects of the same.
It is much easier to perceive and realize the existence and sources of this power
than to mark its boundaries or prescribe limits to its exercise.
Applying these principles, we are opinion that the restrain placed by the law on
the slaughter for human consumption of carabaos fit for agricultural work and
draft purpose is not an appropriation of property interests to a "public use," and is
not, therefore, within the principle of the exercise by the State of the right of
eminent domain. It is fact a mere restriction or limitation upon a private use,
which the legislature deemed to be determental to the public welfare. And we
think that an examination of the general provisions of the statute in relation to the
public interest which it seeks to safeguard and the public necessities for which it
provides, leaves no room for doubt that the limitations and restraints imposed
upon the exercise of rights of ownership by the particular provisions of the statute
under consideration were imposed not for private purposes but, strictly, in the
promotion of the "general welfare" and "the public interest" in the exercise of the
sovereign police power which every State possesses for the general public welfare
and which "reaches to every species of property within the commonwealth."
For several years prior to the enactment of the statute a virulent contagious or
infectious disease had threatened the total extinction of carabaos in these Islands,
in many sections sweeping away seventy, eighty, and in some cases as much as
ninety and even one hundred per cent of these animals. Agriculture being the
principal occupation of the people, and the carabao being the work animal almost
exclusively in use in the fields as well as for draft purposes, the ravages of the
disease with which they were infected struck an almost vital blow at the material
welfare of the country. large areas of productive land lay waste for years, and the
production of rice, the staple food of the inhabitants of the Islands, fell off to such
an extent that the impoverished people were compelled to spend many millions of
pesos in its importation, notwithstanding the fact that with sufficient work animals

to cultivate the fields the arable rice lands of the country could easily be made to
produce a supply more that sufficient for its own needs. The drain upon the
resources of the Islands was such that famine soon began to make itself felt, hope
sank in the breast of the people, and in many provinces the energies of the
breadwinners seemed to be paralyzed by the apparently hopeless struggle for
existence with which they were confronted.
To meet these conditions, large sums of money were expended by the
Government in relieving the immediate needs of the starving people, three
millions of dollars were voted by the Congress of the United States as a relief or
famine fund, public works were undertaken to furnish employment in the
provinces where the need was most pressing, and every effort made to alleviate
the suffering incident to the widespread failure of the crops throughout the
Islands, due in large measure to the lack of animals fit for agricultural work and
draft purposes.
Such measures, however, could only temporarily relieve the situation, because in
an agricultural community material progress and permanent prosperity could
hardly be hoped for in the absence of the work animals upon which such a
community must necessarily rely for the cultivation of the fields and the
transportation of the products of the fields to market. Accordingly efforts were
made by the Government to increase the supply of these animals by importation,
but, as appears from the official reports on this subject, hope for the future
depended largely on the conservation of those animals which had been spared
from the ravages of the diseased, and their redistribution throughout the Islands
where the need for them was greatest.
At large expense, the services of experts were employed, with a view to the
discovery and applications of preventive and curative remedies, and it is hoped
that these measures have proved in some degree successful in protecting the
present inadequate supply of large cattle, and that the gradual increase and
redistribution of these animals throughout the Archipelago, in response to the
operation of the laws of supply and demand, will ultimately results in practically
relieving those sections which suffered most by the loss of their work animals.
As was to be expected under such conditions, the price of carabaos rapidly
increase from the three to five fold or more, and it may fairly be presumed that
even if the conservative measures now adopted prove entirely successful, the
scant supply will keep the price of these animals at a high figure until the natural
increase shall have more nearly equalized the supply to the demand.
Coincident with and probably intimately connected with this sudden rise in the
price of cattle, the crime of cattle stealing became extremely prevalent
throughout the Islands, necessitating the enactment of a special law penalizing
with the severest penalties the theft of carabaos and other personal property by
roving bands; and it must be assumed from the legislative authority found that
the general welfare of the Islands necessitated the enactment of special and
somewhat burdensome provisions for the branding and registration of large cattle,
and supervision and restriction of their slaughter for food. It will hardly be
questioned that the provisions of the statute touching the branding and
registration of such cattle, and prohibiting and penalizing the slaughter of
diseased cattle for food were enacted in the due and proper exercise of the police
power of the State; and we are of opinion that, under all the circumstances, the

provision of the statute prohibiting and penalizing the slaughter for human
consumption of carabaos fit for work were in like manner enacted in the due and
proper exercise of that power, justified by the exigent necessities of existing
conditions, and the right of the State to protect itself against the overwhelming
disaster incident to the further reduction of the supply of animals fit for
agricultural work or draft purposes.
It is, we think, a fact of common knowledge in these Islands, and disclosed by the
official reports and records of the administrative and legislative departments of
the Government, that not merely the material welfare and future prosperity of this
agricultural community were threatened by the ravages of the disease which
swept away the work animals during the years prior to the enactment of the law
under consideration, but that the very life and existence of the inhabitants of
these Islands as a civilized people would be more or less imperiled by the
continued destruction of large cattle by disease or otherwise. Confronted by such
conditions, there can be no doubt of the right of the Legislature to adopt
reasonable measures for the preservation of work animals, even to the extent of
prohibiting and penalizing what would, under ordinary conditions, be a perfectly
legitimate and proper exercise of rights of ownership and control of the private
property of the citizen. The police power rests upon necessity and the right of selfprotection and if ever the invasion of private property by police regulation can be
justified, we think that the reasonable restriction placed upon the use of carabaos
by the provision of the law under discussion must be held to be authorized as a
reasonable and proper exercise of that power.
As stated by Mr. Justice Brown in his opinion in the case of Lawton vs. Steele (152
U.S., 133, 136):
The extent and limits of what is known as the police power have been a fruitful
subject of discussion in the appellate courts of nearly every State in the Union. It
is universally conceded to include everything essential to the public safely,
health, and morals, and to justify the destruction or abatement, by summary
proceedings, of whatever may be regarded as a public nuisance. Under this power
it has been held that the State may order the destruction of a house falling to
decay or otherwise endangering the lives of passers-by; the demolition of such as
are in the path of a conflagration; the slaughter of diseased cattle; the destruction
of decayed or unwholesome food; the prohibition of wooden buildings in cities;
the regulation of railways and other means of public conveyance, and of
interments in burial grounds; the restriction of objectionable trades to certain
localities; the compulsary vaccination of children; the confinement of the insane
or those afficted with contagious deceases; the restraint of vagrants, beggars,
and habitual drunkards; the suppression of obscene publications and houses of ill
fame; and the prohibition of gambling houses and places where intoxicating
liquors are sold. Beyond this, however, the State may interfere wherever the
public interests demand it, and in this particular a large discretion is necessarily
vested in the legislature to determine, not only what the interests of the public
require, but what measures are necessary for the protection of such interests.
(Barbier vs. Connolly, 113 U. S., 27; Kidd vs. Pearson, 128 U. S., 1.) To justify the
State in thus interposing its authority in behalf of the public, it must appear, first,
that the interests of the public generally, as distinguished from those of a
particular class, require such interference; and, second, that the means are
reasonably necessary for the accomplishment of the purpose, and not unduly
oppressive upon individuals. The legislature may not, under the guise of

protecting the public interests, arbitrarily interfere with private business, or

impose unusual and unnecessary restrictions upon lawful occupations. In other
words, its determination as to what is a proper exercise of its police powers is not
final or conclusive, but is subject to the supervision of the court.
From what has been said, we think it is clear that the enactment of the provisions
of the statute under consideration was required by "the interests of the public
generally, as distinguished from those of a particular class;" and that the
prohibition of the slaughter of carabaos for human consumption, so long as these
animals are fit for agricultural work or draft purposes was a "reasonably
necessary" limitation on private ownership, to protect the community from the
loss of the services of such animals by their slaughter by improvident owners,
tempted either by greed of momentary gain, or by a desire to enjoy the luxury of
animal food, even when by so doing the productive power of the community may
be measurably and dangerously affected.
Chief Justice Redfield, in Thorpe vs. Rutland & Burlington R. R. Co. (27 Vt., 140),
said (p. 149) that by this "general police power of the State, persons and property
are subjected to all kinds of restraints and burdens, in order to secure the general
comfort, health, and prosperity of the State; of the perfect right in the legislature
to do which no question ever was, or, upon acknowledge and general principles,
ever can be made, so far as natural persons are concerned."
And Cooley in his "Constitutional Limitations" (6th ed., p. 738) says:
It would be quite impossible to enumerate all the instances in which the police
power is or may be exercised, because the various cases in which the exercise by
one individual of his rights may conflict with a similar exercise by others, or may
be detrimental to the public order or safety, are infinite in number and in variety.
And there are other cases where it becomes necessary for the public authorities
to interfere with the control by individuals of their property, and even to destroy
it, where the owners themselves have fully observed all their duties to their
fellows and to the State, but where, nevertheless, some controlling public
necessity demands the interference or destruction. A strong instance of this
description is where it becomes necessary to take, use, or destroy the private
property of individuals to prevent the spreading of a fire, the ravages of a
pestilence, the advance of a hostile army, or any other great public calamity. Here
the individual is in no degree in fault, but his interest must yield to that
"necessity" which "knows no law." The establishment of limits within the denser
portions of cities and villages within which buildings constructed of inflammable
materials shall not be erected or repaired may also, in some cases, be equivalent
to a destruction of private property; but regulations for this purpose have been
sustained notwithstanding this result. Wharf lines may also be established for the
general good, even though they prevent the owners of water-fronts from building
out on soil which constitutes private property. And, whenever the legislature deem
it necessary to the protection of a harbor to forbid the removal of stones, gravel,
or sand from the beach, they may establish regulations to that effect under
penalties, and make them applicable to the owners of the soil equally with other
persons. Such regulations are only "a just restraint of an injurious use of property,
which the legislature have authority" to impose.
So a particular use of property may sometimes be forbidden, where, by a change
of circumstances, and without the fault of the power, that which was once lawful,

proper, and unobjectionable has now become a public nuisance, endangering the
public health or the public safety. Milldams are sometimes destroyed upon this
grounds; and churchyards which prove, in the advance of urban population, to be
detrimental to the public health, or in danger of becoming so, are liable to be
closed against further use for cemetery purposes.
These citations from some of the highest judicial and text-book authorities in the
United States clearly indicate the wide scope and extent which has there been
given to the doctrine us in our opinion that the provision of the statute in question
being a proper exercise of that power is not in violation of the terms of section 5
of the Philippine Bill, which provide that "no law shall be enacted which shall
deprive any person of life, liberty, or property without due process of law," a
provision which itself is adopted from the Constitution of the United States, and is
found in substance in the constitution of most if not all of the States of the Union.
The judgment of conviction and the sentence imposed by the trial court should be
affirmed with the costs of this instance against the appellant. So ordered.
Arellano, C.J., Torres, Johnson, Moreland and Elliott, JJ., concur.

3.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
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. (Hannewinkle vs. Mayor, etc., of Georgetown, 82 U.S., 547;
Indiana Mfg. Co. vs. Koehne, 188 U.S., 681; Ohio Tax cases, 232 U. S., 576, 587;
Pittsburgh C. C. & St. L. R. Co. vs. Board of Public Works, 172 U. S., 32; Shelton vs.
Plat, 139 U.S., 591; State Railroad Tax Cases, 92 U. S., 575.) Therefore, this branch
of the case must be controlled by sections 139 and 140, unless the same be held
unconstitutional, and consequently, null and void.
The right and power of judicial tribunals to declare whether enactments of the
legislature exceed the constitutional limitations and are invalid has always been
considered a grave responsibility, as well as a solemn duty. The courts invariably
give the most careful consideration to questions involving the interpretation and
application of the Constitution, and approach constitutional questions with great
deliberation, exercising their power in this respect with the greatest possible
caution and even reluctance; and they should never declare a statute void, unless
its invalidity is, in their judgment, beyond reasonable doubt. To justify a court in
pronouncing a legislative act unconstitutional, or a provision of a state
constitution to be in contravention of the Constitution of the United States, the
case must be so clear to be free from doubt, and the conflict of the statute with
the constitution must be irreconcilable, because it is but a decent respect to the
wisdom, the integrity, and the patriotism of the legislative body by which any law
is passed to presume in favor of its validity until the contrary is shown beyond
reasonable doubt. Therefore, in no doubtful case will the judiciary pronounce a
legislative act to be contrary to the constitution. To doubt the constitutionality of a
law is to resolve the doubt in favor of its validity. (6 Ruling Case Law, secs. 71, 72,
and 73, and cases cited therein.)
It is also the settled law in the United States that "due process of law" does not
always require, in respect to the Government, the same process that is required
between citizens, though it generally implies and includes regular allegations,
opportunity to answer, and a trial according to some well settled course of judicial
proceedings. The case with which we are dealing is in point. A citizen's property,
both real and personal, may be taken, and usually is taken, by the government in
payment of its taxes without any judicial proceedings whatever. In this country, as
well as in the United States, the officer charged with the collection of taxes is
authorized to seize and sell the property of delinquent taxpayers without applying
to the courts for assistance, and the constitutionality of the law authorizing this
procedure never has been seriously questioned. (City of Philadelphia vs. [Diehl]
The Collector, 5 Wall., 720; Nicholl vs. U.S., 7 Wall., 122, and cases cited.) This
must necessarily be the course, because it is upon taxation that the Government
chiefly relies to obtain the means to carry on its operations, and it is of the utmost
importance that the modes adopted to enforce the collection of the taxes levied

should be summary and interfered with as little as possible. No government could

exist if every litigious 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, supersede as, 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.

4.
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," "ParisParis," "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 AttorneysGeneral, 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 ofpanguingue 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 bylaws 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 wellregulation, 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.

5. U.S. Supreme Court

JACOBSON v. COM. OF MASSACHUSETTS, 197 U.S. 11 (1905)
197 U.S. 11
HENNING JACOBSON, Plff. in Err.,
v.
COMMONWEALTH OF MASSACHUSETTS.
No. 70.
Argued December 6, 1904.
Decided February 20, 1905.
[197 U.S. 11, 12] This case involves the validity, under the Constitution of the
United States, of certain provisions in the statutes of Massachusetts relating to
vaccination.
The Revised Laws of that commonwealth, chap. 75, 137, provide that 'the board
of health of a city or town, if, in its opinion, it is necessary for the public health or
safety, shall require and enforce the vaccination and revaccination of all the
inhabitants thereof, and shall provide them with the means of free vaccination.
Whoever, being over twenty-one years of age and not under guardianship, refuses
or neglects to comply with such requirement shall forfeit $5.'
An exception is made in favor of 'children who present a certificate, signed by a
registered physician, that they are unfit subjects for vaccination.' 139.
Proceeding under the above statutes, the board of health of the city of
Cambridge, Massachusetts, on the 27th day of February, 1902, adopted the
following regulation: 'Whereas, smallpox has been prevalent to some extent in the
city of Cambridge, and still continues to increase; and whereas, it is necessary for
the speedy extermination of the disease that all persons not protected by
vaccination should be vaccinated; and whereas, in the opinion of the board, the
public health and safety require the vaccination or revaccination of all the
inhabitants of Cambridge; be it ordered, that [197 U.S. 11, 13] all the inhabitants
habitants of the city who have not been successfully vaccinated since March 1st,
1897, be vaccinated or revaccinated.'
Subsequently, the board adopted an additional regulation empowering a named
physician to enforce the vaccination of persons as directed by the board at its
special meeting of February 27th.

The above regulations being in force, the plaintiff in error, Jacobson, was
proceeded against by a criminal complaint in one of the inferior courts of
Massachusetts. The complaint charged that on the 17th day of July, 1902, the
board of health of Cambridge, being of the opinion that it was necessary for the
public health and safety, required the vaccination and revaccination of all the
inhabitants thereof who had not been successfully vaccinated since the 1st day of
March, 1897, and provided them with the means of free vaccination; and that the
defendant, being over twenty-one years of age and not under guardianship,
refused and neglected to comply with such requirement.
The defendant, having been arraigned, pleaded not guilty. The government put in
evidence the above regulations adopted by the board of health, and made proof
tending to show that its chairman informed the defendant that, by refusing to be
vaccinated, he would incur the penalty provided by the statute, and would be
prosecuted therefor; that he offered to vaccinate the defendant without expense
to him; and that the offer was declined, and defendant refused to be vaccinated.
The prosecution having introduced no other evidence, the defendant made
numerous offers of proof. But the trial court ruled that each and all of the facts
offered to be proved by the defendant were immaterial, and excluded all proof of
them.
The defendant, standing upon his offers of proof, and introducing no evidence,
asked numerous instructions to the jury, among which were the following:
That 137 of chapter 75 of the Revised Laws of Massachusetts was in derogation of
the rights secured to the defendant by the preamble to the Constitution of the
United [197 U.S. 11, 14] States, and tended to subvert and defeat the purposes
of the Constitution as declared in its preamble;
That the section referred to was in derogation of the rights secured to the
defendant by the 14th Amendment of the Constitution of the United States, and
especially of the clauses of that amendment providing that no state shall make or
enforce any law abridging the privileges or immunities of citizens of the United
States, nor deprive any person of life, liberty, or property without due process of
law, nor deny to any person within its jurisdiction the equal protection of the laws;
and
That said section was opposed to the spirit of the Constitution.
Each of defendant's prayers for instructions was rejected, and he duly excepted.
The defendant requested the court, but the court refused, to instruct the jury to
return a verdict of not guilty. And the court instructed structed the jury, in
substance, that, if they believed the evidence introduced by the commonwealth,
and were satisfied beyond a reasonable doubt that the defendant was guilty of
the offense charged in the complaint, they would be warranted in finding a verdict
of guilty. A verdict of guilty was thereupon returned.
The case was then continued for the opinion of the supreme judicial court of
Massachusetts. Santa F e Pacific Railroad Company, the exceptions, sustained the
action of the trial court, and thereafter, pursuant to the verdict of the jury, he was
sentenced by the court to pay a fine of $5. And the court ordered that he stand
committed until the fine was paid.

Messrs. George Fred Williams and James A. Halloran for plaintiff in error.
[197 U.S. 11, 18] Messrs. Frederick H. Nash and Herbert Parker for defendant in
error.
[197 U.S. 11, 22]
Mr. Justice Harlan delivered the opinion of the court:
We pass without extended discussion the suggestion that the particular section of
the statute of Massachusetts now in question ( 137, chap. 75) is in derogation of
rights secured by the preamble of the Constitution of the United States. Although
that preamble indicates the general purposes for which the people ordained and
established the Constitution, it has never been regarded as the source of any
substantive power conferred on the government of the United States, or on any of
its departments. Such powers embrace only those expressly granted in the body
of the Constitution, and such as may be implied from those so granted. Although,
therefore, one of the declared objects of the Constitution was to secure the
blessings of liberty to all under the sovereign jurisdiction and authority of the
United States, no power can be exerted to that end by the United States, unless,
apart from the preamble, it be found in some express delegation of power, or in
some power to be properly implied therefrom. 1 Story, Const. 462.
We also pass without discussion the suggestion that the above section of the
statute is opposed to the spirit of the Constitution. Undoubtedly, as observed by
Chief Justice Marshall, speaking for the court in Sturges v. Crowninshield, 4 Wheat.
122, 202, 4 L. ed. 529, 550, 'the spirit of an instrument, especially of a
constitution, is to be respected not less than its letter; yet the spirit is to be
collected chiefly from its words.' We have no need in this case to go beyond the
plain, obvious meaning of the words in those provisions of the Constitution which,
it is contended, must control our decision.
What, according to the judgment of the state court, are the [197 U.S. 11, 23]
scope and effect of the statute? What results were intended to be accomplished
by it? These questions must be answered.
The supreme judicial court of Massachusetts said in the present case: 'Let us
consider the offer of evidence which was made by the defendant Jacobson. The
ninth of the propositions which he offered to prove, as to what vaccination
consists of, is nothing more than a fact of common knowledge, upon which the
statute is founded, and proof of it was unnecessary and immaterial. The thirteenth
and fourteenth involved matters depending upon his personal opinion, which
could not be taken as correct, or given effect, merely because he made it a
ground of refusal to comply with the requirement. Moreover, his views could not
affect the validity of the statute, nor entitle him to be excepted from its
provisions. Com. v. Connolly, 163 Mass. 539, 40 N. E. 862; Com. v. Has, 122 Mass.
40; Reynolds v. United States, 98 U.S. 145 , 25 L. ed. 244; Reg. v. Downes, 13 Cox,
C. C. 111. The other eleven propositions all relate to alleged injurious or
dangerous effects of vaccination. The defendant 'offered to prove and show be
competent evidence' these socalled facts. Each of them, in its nature, is such that
it cannot be stated as a truth, otherwise than as a matter of opinion. The only
'competent evidence' that could be presented to the court to prove these

propositions was the testimony of experts, giving their opinions. It would not have
been competent to introduce the medical history of individual cases. Assuming
that medical experts could have been found who would have testified in support
of these propositions, and that it had become the duty of the judge, in accordance
with the law as stated in Com. v. Anthes, 5 Gray, 185, to instruct the jury as to
whether or not the statute is constitutional, he would have been obliged to
consider the evidence in connection with facts of common knowledge, which the
court will always regard in passing upon the constitutionality of a statute. He
would have considered this testimony of experts in connection with the facts that
for nearly a century most of the members of the medical profession [197 U.S. 11,
24] have regarded vaccination, repeated after intervals, as a preventive of
smallpox; that, while they have recognized the possibility of injury to an individual
from carelessness in the performance of it, or even in a conceivable case without
carelessness, they generally have considered the risk of such an injury too small
to be seriously weighed as against the benefits coming from the discreet and
proper use of the preventive; and that not only the medical profession and the
people generally have for a long time entertained these opinions, but legislatures
and courts have acted upon them with general unanimity. If the defendant had
been permitted to introduce such expert testimony as he had in support of these
several propositions, it could not have changed the result. It would not have
justified the court in holding that the legislature had transcended its power in
enacting this statute on their judgment of what the welfare of the people
demands.' Com. v. Jacobson, 183 Mass. 242, 66 N. E. 719.
While the mere rejection of defendant's offers of proof does not strictly present a
Federal question, we may properly regard the exclusion of evidence upon the
ground of its incompetency or immateriality under the statute as showing what, in
the opinion of the state court, are the scope and meaning of the statute. Taking
the above observations of the state court as indicating the scope of the statute,and such is our duty. Leffingwell v. Warren, 2 Black, 599, 603, 17 L. ed. 261. 262;
Morley v. Lake Shore & M. S. R. Co. 146 U.S. 162, 167 , 36 S. L. ed. 925, 928, 13
Sup. Ct. Rep. 54; Tullis v. Lake Erie & W. R. Co. 175 U.S. 348 , 44 L. ed. 192, 20
Sup. Ct. Rep. 136; W. W. Cargill Co. v. Minnesota, 180 U.S. 452, 466 , 45 S. L. ed.
619, 625, 21 Sup. Ct. Rep. 423,-we assume, for the purposes of the present
inquiry, that its provisions require, at least as a general rule, that adults not under
the guardianship and remaining within the limits of the city of Cambridge must
submit to the regulation adopted by the board of health. Is the statute, so
construed, therefore, inconsistent with the liberty which the Constitution of the
United States secures to every person against deprivation by the state?
The authority of the state to enact this statute is to be [197 U.S. 11, 25] referred
to what is commonly called the police power,-a power which the state did not
surrender when becoming a member of the Union under the Constitution.
Although this court has refrained frained from any attempt to define the limits of
that power, yet it has distinctly recognized the authority of a state to enact
quarantine laws and 'health laws of every description;' indeed, all laws that relate
to matters completely within its territory and which do not by their necessary
operation affect the people of other states. According to settled principles, the
police power of a state must be held to embrace, at least, such reasonable
regulations established directly by legislative enactment as will protect the public
health and the public safety. Gibbons v. Ogden, 9 Wheat. 1, 203, 6 L. ed. 23, 71;
Hannibal & St. J. R. Co. v. Husen, 95 U.S. 465, 470 , 24 S. L. ed. 527, 530; Boston
Beer Co. v. Massachusetts, 97 U.S. 25 , 24 L. ed. 989;New Orleans Gaslight Co. v.

Louisiana Light & H. P. & Mfg. Co. 115 U.S. 650, 661 , 29 S. L. ed. 516, 520, 6 Sup.
Ct. Rep. 252; Lawson v. Stecle, 152 U.S. 133 , 38 L. ed. 385, 14 Sup. Ct. Rep. 499.
It is equally true that the state may invest local bodies called into existence for
purposes of local administration with authority in some appropriate way to
safeguard the public health and the public safety. The mode or manner in which
those results are to be accomplished is within the discretion of the state, subject,
of course, so far as Federal power is concerned, only to the condition that no rule
prescribed by a state, nor any regulation adopted by a local governmental agency
acting under the sanction of state legislation, shall contravene the Constitution of
the United States, nor infringe any right granted or secured by that instrument. A
local enactment or regulation, even if based on the acknowledged police powers
of a state, must always yield in case of conflict with the exercise by the general
government of any power it possesses under the Constitution, or with any right
which that instrument gives or secures. Gibbons v. Ogden, 9 Wheat. 1, 210, 6 L.
ed. 23, 73; Sinnot v. Davenport, 22 How. 227, 243, 16 L. ed. 243, 247; Missouri, K.
& T. R. Co. v. Haber, 169 U.S. 613, 626 , 42 S. L. ed. 878, 882, 18 Sup. Ct. Rep.
488.
We come, then, to inquire whether any right given or secured by the Constitution
is invaded by the statute as [197 U.S. 11, 26] interpreted by the state court. The
defendant insists that his liberty is invaded when the state subjects him to fine or
imprisonment for neglecting or refusing to submit to vaccination; that a
compulsory vaccination law is unreasonable, arbitrary, and oppressive, and,
therefore, hostile to the inherent right of every freeman to care for his own body
and health in such way as to him seems best; and that the execution of such a
law against one who objects to vaccination, no matter for what reason, is nothing
short of an assault upon his person. But the liberty secured by the Constitution of
the United States to every person within its jurisdiction does not import an
absolute right in each person to be, at all times and in all circumstances, wholly
freed from restraint. There are manifold restraints to which every person is
necessarily subject for the common good. On any other basis organized society
could not exist with safety to its members. Society based on the rule that each
one is a law unto himself would soon be confronted with disorder and anarchy.
Real liberty for all could not exist under the operation of a principle which
recognizes the right of each individual person to use his own, whether in respect
of his person or his property, regardless of the injury that may be done to others.
This court has more than once recognized it as a fundamental principle that
'persons and property are subjected to all kinds of restraints and burdens in order
to secure the general comfort, health, and prosperity of the state; of the perfect
right of the legislature to do which no question ever was, or upon acknowledged
general principles ever can be, made, so far as natural persons are concerned.'
Hannibal & St. J. R. Co. v. Husen, 95 U.S. 465, 471 , 24 S. L. ed. 527, 530; Missouri,
K. & T. R. Co. v. Haber, 169 U.S. 613, 628 , 629 S., 42 L. ed. 878- 883, 18 Sup. Ct.
Rep. 488; Thorpe v. Rutland & B. R. Co. 27 Vt. 148, 62 Am. Dec. 625. In Crowley v.
Christensen, 137 U.S. 86, 89 , 34 S. L. ed. 620, 621, 11 Sup. Ct. Rep. 13, we said:
'The possession and enjoyment of all rights are subject to such reasonable
conditions as may be deemed by the governing authority of the country essential
to the safety, health, peace, good order, and morals of the community. Even
liberty [197 U.S. 11, 27] itself, the greatest of all rights, is not unrestricted
license to act according to one's own will. It is only freedom from restraint under
conditions essential to the equal enjoyment of the same right by others. It is,
then, liberty regulated by law.' In the Constitution of Massachusetts adopted in
1780 it was laid down as a fundamental principle of the social compact that the

whole people covenants with each citizen, and each citizen with the whole people,
that all shall be governed by certain laws for 'the common good,' and that
government is instituted 'for the common good, for the protection, safety,
prosperity, and happiness of the people, and not for the profit, honor, or private
interests of any one man, family, or class of men.' The good and welfare of the
commonwealth, of which the legislature is primarily the judge, is the basis on
which the police power rests in Massachusetts. Com. v. Alger, 7 Cush. 84.
Applying these principles to the present case, it is to be observed that the
legislature of Massachusetts required the inhabitants of a city or town to be
vaccinated only when, in the opinion of the board of health, that was necessary
for the public health or the public safety. The authority to determine for all what
ought to be done in such an emergency must have been lodged somewhere or in
some body; and surely it was appropriate for the legislature to refer that question,
in the first instance, to a board of health composed of persons residing in the
locality affected, and appointed, presumably, because of their fitness to
determine such questions. To invest such a body with authority over such matters
was not an unusual, nor an unreasonable or arbitrary, requirement. Upon the
principle of self-defense, of paramount necessity, a community has the right to
protect itself against an epidemic of disease which threatens the safety of its
members. It is to be observed that when the regulation in question was adopted
smallpox, according to the recitals in the regulation adopted by the board of
health, was prevalent to some extent in the city of Cambridge, and the disease
was increasing. If such was [197 U.S. 11, 28] the situation,-and nothing is
asserted or appears in the record to the contrary,-if we are to attach, any value
whatever to the knowledge which, it is safe to affirm, in common to all civilized
peoples touching smallpox and the methods most usually employed to eradicate
that disease, it cannot be adjudged that the present regulation of the board of
health was not necessary in order to protect the public health and secure the
public safety. Smallpox being prevalent and increasing at Cambridge, the court
would usurp the functions of another branch of government if it adjudged, as
matter of law, that the mode adopted under the sanction of the state, to protect
the people at large was arbitrary, and not justified by the necessities of the case.
We say necessities of the case, because it might be that an acknowledged power
of a local community to protect itself against an epidemic threatening the safety
of all might be exercised in particular circumstances and in reference to particular
persons in such an arbitrary, unreasonable manner, or might go so far beyond
what was reasonably required for the safety of the public, as to authorize or
compel the courts to interfere for the protection of such persons. Wisconsin, M. &
P. R. Co. v. Jacobson, 179 U.S. 287, 301 , 45 S. L. ed. 194, 201, 21 Sup. Ct. Rep.
115; 1 Dill. Mun. Corp. 4th ed. 319-325, and authorities in notes; Freurid, Police
Power, 63 et seq. In Hannibal & St. J. R. Co. v. Husen, 95 U.S. 465 , 471-473, 24 L.
ed. 527, 530, 531, this court recognized the right of a state to pass sanitary laws,
laws for the protection of life, liberty, health, or property within its limits, laws to
prevent persons and animals suffering under contagious or infectious diseases, or
convicts, from coming within its borders. But, as the laws there involved went
beyond the necessity of the case, and, under the guise of exerting a police power,
invaded the domain of Federal authority, and violated rights secured by the
Constitution, this court deemed it to be its duty to hold such laws invalid. If the
mode adopted by the commonwealth of Massachusetts for the protection of its
local communities against smallpox proved to be distressing, inconvenient, or
objectionable to some,-if nothing more could be reasonably [197 U.S. 11, 29]
affirmed of the statute in question,-the answer is that it was the duty of the

constituted authorities primarily to keep in view the welfare, comfort, and safety
of the many, and not permit the interests of the many to be subordinated to the
wishes or convenience of the few. There is, of course, a sphere within which the
individual may assert the supremacy of his own will, and rightfully dispute the
authority of any human government,- especially of any free government existing
under a written constitution, to interfere with the exercise of that will. But it is
equally true that in every well-ordered society charged with the duty of
conserving the safety of its members the rights of the individual in respect of his
liberty may at times, under the pressure of great dangers, be subjected to such
restraint, to be enforced by reasonable regulations, as the safety of the general
public may demand. An American citizen arriving at an American port on a vessel
in which, during the voyage, there had been cases of yellow fever or Asiatic
cholera, he, although apparently free from disease himself, may yet, in some
circumstances, be held in quarantine against his will on board of such vessel or in
a quarantine station, until it be ascertained by inspection, conducted with due
diligence, that the danger of the spread of the disease among the community at
large has disappeared. The liberty secured by the 14th Amendment, this court has
said, consists, in part, in the right of a person 'to live and work where he will'
( Allgeyer v. Louisiana, 165 U.S. 578 , 41 L. ed. 832, 17 Sup. Ct. Rep. 427); and yet
he may be compelled, by force if need be, against his will and without regard to
his personal wishes or his pecuniary interests, or even his religious or political
convictions, to take his place in the ranks of the army of his country, and risk the
chance of being shot down in its defense. It is not, therefore, true that the power
of the public to guard itself against imminent danger depends in every case
involving the control of one's body upon his willingness to submit to reasonable
regulations established by the constituted authorities, under the [197 U.S. 11, 30]
sanction of the state, for the purpose of protecting the public collectively against
such danger.
It is said, however, that the statute, as interpreted by the state court, although
making an exception in favor of children certified by a registered physician to be
unfit subjects for vaccination, makes no exception in case of adults in like
condition. But this cannot be deemed a denial of the equal protection of the laws
to adults; for the statute is applicable equally to all in like condition, and there are
obviously reasons why regulations may be appropriate for adults which could not
be safely applied to persons of tender years.
Looking at the propositions embodied in the defendant's rejected offers of proof, it
is clear that they are more formidable by their number than by their inherent
value. Those offers in the main seem to have had no purpose except to state the
general theory of those of the medical profession who attach little or no value to
vaccination as a means of preventing the spread of smallpox, or who think that
vaccination causes other diseases of the body. What everybody knows the court
must know, and therefore the state court judicially knew, as this court knows, that
an opposite theory accords with the common belief, and is maintained by high
medical authority. We must assume that, when the statute in question was
passed, the legislature of Massachusetts was not unaware of these opposing
theories, and was compelled, of necessity, to choose between them. It was not
compelled to commit a matter involving the public health and safety to the final
decision of a court or jury. It is no part of the function of a court or a jury to
determine which one of two modes was likely to be the most effective for the
protection of the public against disease. That was for the legislative department
to determine in the light of all the information it had or could obtain. It could not

properly abdicate its function to guard the public health and safety. The state
legislature proceeded upon the theory which recognized vaccination as at least an
effective, if not the best-known, way in which to meet and suppress the [197 U.S.
11, 31] evils of a smallpox epidemic that imperiled an entire population. Upon
what sound principles as to the relations existing between the different
departments of government can the court review this action of the legislature? If
there is any such power in the judiciary to review legislative action in respect of a
matter affecting the general welfare, it can only be when that which the
legislature has done comes within the rule that, if a statute purporting to have
been enacted to protect the public health, the public morals, or the public safety,
has no real or substantial relation to those objects, or is, beyond all question, a
plain, palpable invasion of rights secured by the fundamental law, it is the duty of
the courts to so adjudge, and thereby give effect to the Constitution. Mugler v.
Kansas, 123 U.S. 623, 661 , 31 S. L. ed. 205, 210, 8 Sup. Ct. Rep. 273; Minnesota
v. Barber, 136 U.S. 313, 320 , 34 S. L. ed. 455, 458, 3 Inters. Com. Rep. 185, 10
Sup. Ct. Rep. 862; Atkin v. Kansas, 191 U.S. 207, 223 , 48 S. L. ed. 148, 158, 24
Sup. Ct. Rep. 124.
Whatever may be thought of the expediency of this statute, it cannot be affirmed
to be, beyond question, in palpable conflict with the Constitution. Nor, in view of
the methods employed to stamp out the disease of smallpox, can anyone
confidently assert that the means prescribed by the state to that end has no real
or substantial relation to the protection of the public health and the public safety.
Such an assertion would not be consistent with the experience of this and other
countries whose authorities have dealt with the disease of smallpox. And the
principle of vaccination as a means to [197 U.S. 11, 32] prevent the spread of
smallpox has been enforced in many states by statutes making the vaccination of
children a condition of their right to enter or remain in public schools. Blue v.
Beach, 155 Ind. 121, 50 L. R. A. 64, 80 Am. St. Rep. 195, 56 N. E. 89; Morris v.
Columbus, 102 [197 U.S. 11, 33] Ga. 792, 42 L. R. A. 175, 66 Am. St. Rep. 243,
30 S. E. 850; State v. Hay, 126 N. C. 999, 49 L. R. A. 588, 78 Am. St. Rep. 691, 35
S. E. 459; Abeel v. Clark, 84 Cal. 226, 24 Pac. 383; Bissell v. Davison, 65 Conn.
183, 29 L. R. A. 251, 32 Atl. 348; Hazen v. Strong, 2 Vt. 427; Duffield v.
Williamsport School District, 162 Pa. 476, 25 L. R. A. 152, 29 Atl. 742. [197 U.S.
11, 34] The latest case upon the subject of which we are aware is Viemester v.
White, decided very recently by the court of appeals of New York. That case
involved the validity of a statute excluding from the public schools all children
who had not been vacinated. One contention was that the statute and the
regulation adopted in exercise of its provisions was inconsistent with the rights,
privileges, and liberties of the citizen. The contention was overruled, the court
saying, among other things: 'Smallpox is known of all to be a dangerous and
contagious disease. If vaccination strongly tends to prevent the transmission or
spread of this disease, it logically follows that children may be refused admission
to the public schools until they have been vaccinated. The appellant claims that
vaccination does not tend to prevent smallpox, but tends to bring about other
diseases, and that it does much harm, with no good. It must be conceded that
some laymen, both learned and unlearned, and some physicians of great skill and
repute, do not believe that vaccination is a preventive of smallpox. The common
belief, however, is that it has a decided tendency to prevent the spread of this
fearful disease, and to render it less dangerous to those who contract it. While not
accepted by all, it is accepted by the mass of the people, as well as by most
members of the medical profession. It has been general in our state, and in most
civilized nations for generations. It is [197 U.S. 11, 35] generally accepted in

theory, and generally applied in practice, both by the voluntary action of the
people, and in obedience to the command of law. Nearly every state in the Union
has statutes to encourage, or directly or indirectly to require, vaccination; and this
is true of most nations of Europe. . . . A common belief, like common knowledge,
does not require evidence to establish its existence, but may be acted upon
without proof by the legislature and the courts.. . . The fact that the belief is not
universal is not controlling, for there is scarcely any belief that is accepted by
everyone. The possibility that the belief may be wrong, and that science may yet
show it to be wrong, is not conclusive; for the legislature has the right to pass
laws which, according to the common belief of the people, are adapted to prevent
the spread of contagious diseases. In a free country, where the government is by
the people, through their chosen representatives, practical legislation admits of
no other standard of action, for what the people believe is for the common welfare
must be accepted as tending to promote the common welfare, whether it does in
fact or not. Any other basis would conflict with the spirit of the Constitution, and
would sanction measures opposed to a Republican form of government. While we
do not decide, and cannot decide, that vaccination is a preventive of smallpox, we
take judicial notice of the fact that this is the common belief of the people of the
state, and, with this fact as a foundation, we hold that the statute in question is a
health law, enacted in a reasonable and proper exercise of the police power.' 179
N. Y. 235, 72 N. E. 97.
Since, then, vaccination, as a means of protecting a community against smallpox,
finds strong support in the experience of this and other countries, no court, much
less a jury, is justified in disregarding the action of the legislature simply because
in its or their opinion that particular method was-perhaps, or possibly-not the best
either for children or adults.
Did the offers of proof made by the defendant present a case which entitled him,
while remaining in Cambridge, to [197 U.S. 11, 36] claim exemption from the
operation of the statute and of the regulation adopted by the board of health? We
have already said that his rejected offers, in the main, only set forth the theory of
those who had no faith in vaccination as a means of preventing the spread of
smallpox, or who thought that vaccination, without benefiting the public, put in
peril the health of the person vaccinated. But there were some offers which it is
contended embodied distinct facts that might properly have been considered. Let
us see how this is.
The defendant offered to prove that vaccination 'quite often' caused serious and
permanent injury to the health of the person vaccinated; that the operation
'occasionally' resulted in death; that it was 'impossible' to tell 'in any particular
case' what the results of vaccination would be, or whether it would injure the
health or result in death; that 'quite often' one's blood is in a certain condition of
impurity when it is not prudent or safe to vaccinate him; that there is no practical
test by which to determine 'with any degree of certainty' whether one's blood is in
such condition of impurity as to render vaccination necessarily unsafe or
dangerous; that vaccine matter is 'quite often' impure and dangerous to be used,
but whether impure or not cannot be ascertained by any known practical test;
that the defendant refused to submit to vaccination for the reason that he had,
'when a child,' been caused great and extreme suffering for a long period by a
disease produced by vaccination; and that he had witnessed a similar result of
vaccination, not only in the case of his son, but in the cases of others.

These offers, in effect, invited the court and jury to go over the whole ground
gone over by the legislature when it enacted the statute in question. The
legislature assumed that some children, by reason of their condition at the time,
might not be fit subjects of vaccination; and it is suggested-and we will not say
without reason-that such is the case with some adults. But the defendant did not
offer to prove that, by reason of his then condition, he was in fact not a fit subject
of vaccination [197 U.S. 11, 37] at the time he was informed of the requirement
of the regulation adopted by the board of health. It is entirely consistent with his
offer of proof that, after reaching full age, he had become, so far as medical skill
could discover, and when informed of the regulation of the board of health was, a
fit subject of vaccination, and that the vaccine matter to be used in his case was
such as any medical practitioner of good standing would regard as proper to be
used. The matured opinions of medical men everywhere, and the experience of
mankind, as all must know, negative the suggestion that it is not possible in any
case to determine whether vaccination is safe. Was defendant exempted from the
operation of the statute simply because of his dread of the same evil results
experienced by him when a child, and which he had observed in the cases of his
son and other children? Could he reasonably claim such an exemption because
'quite often,' or 'occasionally,' injury had resulted from vaccination, or because it
was impossible, in the opinion of some, by any practical test, to determine with
absolute certainty whether a particular person could be safely vaccinated?
It seems to the court that an affirmative answer to these questions would
practically strip the legislative department of its function to care for the public
health and the public safety when endangered by epidemics of disease. Such an
answer would mean that compulsory vaccination could not, in any conceivable
case, be legally enforced in a community, even at the command of the legislature,
however widespread the epidemic of smallpox, and however deep and universal
was the belief of the community and of its medical advisers that a system of
general vaccination was vital to the safety of all.
We are not prepared to hold that a minority, residing or remaining in any city or
town where smallpox is prevalent, and enjoying the general protection afforded by
an organized local government, may thus defy the will of its constituted
authorities, acting in good faith for all, under the legislative sanction of the state.
If such be the privilege of a minority, [197 U.S. 11, 38] then a like privilege would
belong to each individual of the community, and the spectacle would be
presented of the welfare and safety of an entire population being subordinated to
the notions of a single individual who chooses to remain a part of that population.
We are unwilling to hold it to be an element in the liberty secured by the
Constitution of the United States that one person, or a minority of persons,
residing in any community and enjoying the benefits of its local government,
should have the power thus to dominate the majority when supported in their
action by the authority of the state. While this court should guard with firmness
every right appertaining to life, liberty, or property as secured to the individual by
the supreme law of the land, it is of the last importance that it should not invade
the domain of local authority except when it is plainly necessary to do so in order
to enforce that law. The safety and the health of the people of Massachusetts are,
in the first instance, for that commonwealth to guard and protect. They are
matters that do not ordinarily concern the national government. So far as they
can be reached by any government, they depend, primarily, upon such action as
the state, in its wisdom, may take; and we do not perceive that this legislation has
invaded any right secured by the Federal Constitution.

Before closing this opinion we deem it appropriate, in order to prevent

misapprehension as to our views, to observe-perhaps to repeat a thought already
sufficiently expressed, namely-that the police power of a state, whether exercised
directly by the legislature, or by a local body acting under its authority, may be
exerted in such circumstances, or by regulations so arbitrary and oppressive in
particular cases, as to justify the interference of the courts to prevent wrong and
oppression. Extreme cases can be readily suggested. Ordinarily such cases are
not safe guides in the administration of the law. It is easy, for instance, to suppose
the case of an adult who is embraced by the mere words of the act, but yet to
subject whom to vaccination in a particular condition of his health [197 U.S. 11,
39] or body would be cruel and inhuman in the last degree. We are not to be
understood as holding that the statute was intended to be applied to such a case,
or, if it was so intended, that the judiciary would not be competent to interfere
and protect the health and life of the individual concerned. 'All laws,' this court
has said, 'should receive a sensible construction. General terms should be so
limited in their application as not to lead to injustice, oppression, or an absurd
consequence. It will always, therefore, be presumed that the legislature intended
exceptions to its language which would avoid results of this character. The reason
of the law in such cases should prevail over its letter.' United States v. Kirby, 7
Wall. 482, 19 L. ed. 278; Lau Ow Bew v. United States, 144 U.S. 47, 58 , 36 S. L.
ed. 340, 344, 12 Sup. Ct. Rep. 517. Until otherwise informed by the highest court
of Massachusetts, we are not inclined to hold that the statute establishes the
absolute rule that an adult must be vaccinated if it be apparent or can be shown
with reasonable certainty that he is not at the time a fit subject of vaccination, or
that vaccination, by reason of his then condition, would seriously impair his
health, or probably cause his death. No such case is here presented. It is the
cause of an adult who, for aught that appears, was himself in perfect health and a
fit subject of vaccination, and yet, while remaining in the community, refused to
obey the statute and the regulation adopted in execution of its provisions for the
protection of the public health and the public safety, confessedly endangered by
the presence of a dangerous disease.
We now decide only that the statute covers the present case, and that nothing
clearly appears that would justify this court in holding it to be unconstitutional and
inoperative in its application to the plaintiff in error.
The judgment of the court below must be affirmed.
It is so ordered.
Mr. Justice Brewer and Mr. Justice Peckham dissent.
Footnotes
'State-supported facilities for vaccination began in England in 1808 with the
National Vaccine Establishment. In 1840 vaccination fees were made payable out
of the rates. The first compulsory act was passed in 1853, the guardians of the
poor being intrusted with the carrying out of the law; in 1854 the public
vacinations under one year of age were 408,824 as against an average of
180,960 for several years before. In 1867 a new act was passed, rather to remove
some technical difficulties than to enlarge the scope of the former act; and in
1871 the act was passed which compelled the boards of guardians to appoint
vaccination officers. The guardians also appoint a public vaccinator, who must be

duly qualified to practise medicine, and whose duty it is to vaccinate (for a fee of
one shilling and sixpence) any child resident within his district brought to him for
that purpose, to examine the same a week after, to give a certificate, and to
certify to the vaccination officer the fact of vaccination or of insusceptibility. . . .
Vaccination was made compulsory in Bavarla in 1807, and subsequently in the
following countries: Denmark (1810), Sweden (1814), W urttemberg, Hesse, and
other German states (1818), Prussia (1835), Roumania (1874), Hungary (1876),
and Servia (1881). It is compulsory by cantonal law in 10 out of the 22 Swiss
cantons; an attempt to pass a Federal compulsory law was defeated by a
plebiscite in 1881. In the following countries there is no compulsory law, but
governmental facilities and compulsion on various classes more or less directly
under governmental control, such as soldiers, state employees, apprentices,
school pupils, etc.: France, Italy, Spain, Portugal, Belgium. Norway, Austria, Turkey.
. . . Vaccination has been compulsory in South Australia since 1872, in Victoria
since 1874, and in Western Australia since 1878. In Tasmania a compulsory act
was passed in 1882. In New South Wales there is no compulsion, but free facilities
for vaccination. Compulsion was adopted at Calcutta in 1880, and since then at
80 other towns of Bengal, at Madras in 1884, and at Bombay and elsewhere in the
presidency a few years earlier. Revaccination was made compulsory in Denmark
in 1871, and in Roumania in 1874; in Holland it was enacted for all school pupils in
1872. The various laws and administrative orders which had been for many years
in force as to vaccination and revaccination in the several German states were
consolidated in an imperial statute of 1874.' 24 Encyclopaedia Britannica (1894),
Vaccination.
'In 1857 the British Parliament received answers from 552 physicians to questions
which were asked them in reference to the utility of vaccination, and only two of
these spoke against it. Nothing proves this utility more clearly than the statistics
obtained. Especially instructive are those which Flinzer compiled respecting the
epidemic in Chemnitz which prevailed in 1870-71. At this time in the town there
were 64,255 inhabitants, of whom 53,891, or 83.87 per cent, were vaccinated,
5,712, or 8.89 per cent were unvaccinated, and 4,652, or 7.24 per cent, had had
the smallpox before. Of those vaccinated 953, or 1.77 per cent, became affected
with smallpox, and of the uninocculated 2,643, or 46.3 per cent, had the disease.
In the vaccinated the mortality from the disease was 0.73 per cent, and in the
unprotected it was 9.16 per cent. In general, the danger of infection is six times
as great, and the mortality 68 times as great, in the unvaccinated, as in the
vaccinated. Statistics derived from the civil population are in general not so
instructive as those derived from armies, where vaccination is usually more
carefully performed, and where statistics can be more accurately collected.
During the Franco- German war (1870-71) there was in France a widespread
epidemic of smallpox, but the German army lost
during the campaign only 450 cases, or 58 men to the 100,000; in the French
army, however, where vaccination was not carefully carried out, the number of
deaths from smallpox was 23,400.' , Johnson's Universal Cyclopaedia (1897),
Vaccination.
'The degree of protection afforded by vaccination thus became a question of great
interest. Its extreme value was easily demonstrated by statistical researches. In
England, in the last half of the eighteenth century, out of every 1,000 deaths, 96
occurred from smallpox; in the first half of the present century, out of every 1,000
deaths, but 35 were caused by that disease. The amount of mortality in a country
by smallpox seems to bear a fixed relation to the extent to which vaccination is

carried out In all England and Wales, for some years previous to 1853, the
proportional mortality by smallpox was 21.9 to 1,000 deaths from all causes; in
London it was but 16 to 1,000; in Ireland, where vaccination was much less
general, it was 49 to 1,000, while in Connaught it was 60 to 1,000. On the other
hand, in a number of European countries where vaccination was more or less
compulsory, the proportionate number of deaths from smallpox about the same
time varied from 2 per 1,000 of all causes in Bohemia, Lombardy, Venice, and
Sweden, to 8.33 per 1,000 in Saxony. Although in many instances persons who
had been vaccinated were attacked with smallpox in a more or less modified form,
it was noticed that the persons so attacked had been commonly vaccinated many
years previously. 16 American Cyclopedia, Vaccination (1883).
'Dr Buchanan, the medical officer of the London Government Board, reported [197
U.S. 11, 1881] as the result of statistics that the smallpox death rate among
adult persons vaccinated was 90 to a million; whereas among those unvaccinated
it was 3,350 to a million; whereas among vaccinated children under five years of
age, 42 1/2 per million; whereas among unvaccinated children of the same age it
was 5,950 per million.' Hardway, Essentials of Vaccination (1882). The same
author reports that, among other conclusions reached by the Academie de
Medicine of France, was one that, 'without vaccination, hygienic measures
(isolation, disinfection, etc.) are of themselves insufficient for preservation from
smallpox.' Ibid.
The Belgian Academy of Medicine appointed a committee to make an exhaustive
examination of the whole subject, and among the conclusions reported by them
were: 1. 'Without vaccination, hygienic measures and means, whether public or
private, are powerless in preserving mankind from smallpox. . . . 3. Vaccination is
always an inoffensive operation when
practised with proper care on healthy subjects. . . . 4. It is highly desirable, in the
interests of the health and lives of our countrymen, that vaccination should be
rendered compulsory.' Edwards, Vaccination ( 1882.)
The English Royal Commission, appointed with Lord Herschell, the Lord Chancellor
of England, at its head, to inquire, among other things, as to the effect of
vaccination in reducing the prevalence of, and mortality from, smallpox, reported,
after several years of investigation: 'We think that it diminishes the liability to be
attacked by the disease; that it modifies the character of the disease and renders
it less fatal,-of a milder and less severe type; that the protection it affords against
attacks of the disease is greatest during the years immediately succeeding the
operation of vaccination.'

6. Buck v. Bell :: 274 U.S. 200 (1927) (MISSING)

7.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-49112 February 2, 1979
LEOVILLO C. AGUSTIN, petitioner,
vs.
HON. ROMEO F. EDU, in his capacity as Land Transportation
Commissioner; HON. JUAN PONCE ENRILE, in his capacity as Minister of
National Defense; HON. ALFREDO L. JUINIO, in his capacity as Minister Of
Public Works, Transportation and Communications; and HON: BALTAZAR
AQUINO, in his capacity as Minister of Public Highways, respondents.
Leovillo C. Agustin Law Office for petitioner.
Solicitor General Estelito P. Mendoza, Assistant Solicitor General Ruben E. Agpalo
and Solicitor Amado D. Aquino for respondents.
FERNANDO, J.:
The validity of a letter of Instruction 1 providing for an early seaming device for
motor vehicles is assailed in this prohibition proceeding as being violative of the
constitutional guarantee of due process and, insofar as the rules and regulations
for its implementation are concerned, for transgressing the fundamental principle
of non- delegation of legislative power. The Letter of Instruction is stigmatized by
petitioner who is possessed of the requisite standing, as being arbitrary and
oppressive. A temporary restraining order as issued and respondents Romeo F.
Edu, Land Transportation Commissioner Juan Ponce Enrile, Minister of National
Defense; Alfredo L. Juinio, Minister of Public Works, Transportation and
Communications; and Baltazar Aquino, Minister of Public Highways; were to
answer. That they did in a pleading submitted by Solicitor General Estelito P.
Mendoza. 2 Impressed with a highly persuasive quality, it makes devoid clear that
the imputation of a constitutional infirmity is devoid of justification The Letter of
Instruction on is a valid police power measure. Nor could the implementing rules
and regulations issued by respondent Edu be considered as amounting to an
exercise of legislative power. Accordingly, the petition must be dismissed.
The facts are undisputed. The assailed Letter of Instruction No. 229 of President
Marcos, issued on December 2, 1974, reads in full: "[Whereas], statistics show
that one of the major causes of fatal or serious accidents in land transportation is
the presence of disabled, stalled or parked motor vehicles along streets or
highways without any appropriate early warning device to signal approaching
motorists of their presence; [Whereas], the hazards posed by such obstructions to
traffic have been recognized by international bodies concerned with traffic safety,
the 1968 Vienna Convention on Road Signs and Signals and the United Nations
Organization (U.N.); [Whereas], the said Vienna Convention which was ratified by
the Philippine Government under P.D. No. 207, recommended the enactment of
local legislation for the installation of road safety signs and devices; [Now,
therefore, I, Ferdinand E. Marcos], President of the Philippines, in the interest of
safety on all streets and highways, including expressways or limited access roads,
do hereby direct: 1. That all owners, users or drivers of motor vehicles shall have
at all times in their motor vehicles at least one (1) pair of early warning device
consisting of triangular, collapsible reflectorized plates in red and yellow colors at
least 15 cms. at the base and 40 cms. at the sides. 2. Whenever any motor

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

to buy a set of the so-called early warning device at the rate of P 56.00 to P72.00
per set." 14are unlawful and unconstitutional and contrary to the precepts of a
compassionate New Society [as being] compulsory and confiscatory on the part of
the motorists who could very well provide a practical alternative road safety
device, or a better substitute to the specified set of EWD's." 15 He therefore
prayed for a judgment both the assailed Letters of Instructions and Memorandum
Circular void and unconstitutional and for a restraining order in the meanwhile.
A resolution to this effect was handed down by this Court on October 19, 1978: "L49112 (Leovillo C. Agustin v. Hon. Romeo F. Edu, etc., et al.) Considering the
allegations contained, the issues raised and the arguments adduced in the
petition for prohibition with writ of p prohibitory and/or mandatory injunction, the
Court Resolved to (require) the respondents to file an answer thereto within ton
(10) days from notice and not to move to dismiss the petition. The Court further
Resolved to [issue] a [temporary restraining order] effective as of this date and
continuing until otherwise ordered by this Court. 16
Two motions for extension were filed by the Office of the Solicitor General and
granted. Then on November 15, 1978, he Answer for respondents was submitted.
After admitting the factual allegations and stating that they lacked knowledge or
information sufficient to form a belief as to petitioner owning a Volkswagen Beetle
car," they "specifically deny the allegations and stating they lacked knowledge or
information sufficient to form a belief as to petitioner owning a Volkswagen Beetle
Car, 17 they specifically deny the allegations in paragraphs X and XI (including its
subparagraphs 1, 2, 3, 4) of Petition to the effect that Letter of Instruction No. 229
as amended by Letters of Instructions Nos. 479 and 716 as well as Land
transportation Commission Administrative Order No. 1 and its Memorandum
Circular No. 32 violates the constitutional provisions on due process of law, equal
protection of law and undue delegation of police power, and that the same are
likewise oppressive, arbitrary, confiscatory, one-sided, onerous, immoral
unreasonable and illegal the truth being that said allegations are without legal
and factual basis and for the reasons alleged in the Special and Affirmative
Defenses of this Answer." 18 Unlike petitioner who contented himself with a
rhetorical recital of his litany of grievances and merely invoked the sacramental
phrases of constitutional litigation, the Answer, in demonstrating that the assailed
Letter of Instruction was a valid exercise of the police power and implementing
rules and regulations of respondent Edu not susceptible to the charge that there
was unlawful delegation of legislative power, there was in the portion captioned
Special and Affirmative Defenses, a citation of what respondents believed to be
the authoritative decisions of this Tribunal calling for application. They
are Calalang v. Williams, 19 Morfe v. Mutuc, 20 and Edu v. Ericta. 21 Reference was
likewise made to the 1968 Vienna Conventions of the United Nations on road
traffic, road signs, and signals, of which the Philippines was a signatory and which
was duly ratified. 22 Solicitor General Mendoza took pains to refute in detail, in
language calm and dispassionate, the vigorous, at times intemperate, accusation
of petitioner that the assailed Letter of Instruction and the implementing rules and
regulations cannot survive the test of rigorous scrutiny. To repeat, its highlypersuasive quality cannot be denied.
This Court thus considered the petition submitted for decision, the issues being
clearly joined. As noted at the outset, it is far from meritorious and must be
dismissed.
1. The Letter of Instruction in question was issued in the exercise of the police
power. That is conceded by petitioner and is the main reliance of respondents. It is
the submission of the former, however, that while embraced in such a category, it
has offended against the due process and equal protection safeguards of the

Constitution, although the latter point was mentioned only in passing. The broad
and expansive scope of the police power which was originally Identified by Chief
Justice Taney of the American Supreme Court in an 1847 decision as "nothing
more or less than the powers of government inherent in every sovereignty" 23 was
stressed in the aforementioned case of Edu v. Ericta thus: "Justice Laurel, in the
first leading decision after the Constitution came into force, Calalang v. Williams,
Identified police power with state authority to enact legislation that may interfere
with personal liberty or property in order to promote the general welfare. Persons
and property could thus 'be subjected to all kinds of restraints and burdens in
order to we the general comfort, health and prosperity of the state.' Shortly after
independence in 1948, Primicias v. Fugoso reiterated the doctrine, such a
competence being referred to as 'the power to prescribe regulations to promote
the health, morals, peace, education, good order or safety, and general welfare of
the people. The concept was set forth in negative terms by Justice Malcolm in a
pre-Commonwealth decision as 'that inherent and plenary power in the State
which enables it to prohibit all things hurtful to the comfort, safety and welfare of
society. In that sense it could be hardly distinguishable as noted by this Court in
Morfe v. Mutuc with the totality of legislative power. It is in the above sense the
greatest and most powerful at. tribute of government. It is, to quote Justice
Malcolm anew, 'the most essential, insistent, and at least table powers, I
extending as Justice Holmes aptly pointed out 'to all the great public needs.' Its
scope, ever-expanding to meet the exigencies of the times, even to anticipate the
future where it could be done, provides enough room for an efficient and flexible
response to conditions and circumstances thus assuring the greatest benefits. In
the language of Justice Cardozo: 'Needs that were narrow or parochial in the past
may be interwoven in the present with the well-being of the nation. What is
critical or urgent changes with the time.' The police power is thus a dynamic
agency, suitably vague and far from precisely defined, rooted in the conception
that men in organizing the state and imposing upon its government limitations to
safeguard constitutional rights did not intend thereby to enable an individual
citizen or a group of citizens to obstruct unreasonably the enactment of such
salutary measures calculated to communal peace, safety, good order, and
welfare." 24
2. It was thus a heavy burden to be shouldered by petitioner, compounded by the
fact that the particular police power measure challenged was clearly intended to
promote public safety. It would be a rare occurrence indeed for this Court to
invalidate a legislative or executive act of that character. None has been called to
our attention, an indication of its being non-existent. The latest decision in point,
Edu v. Ericta, sustained the validity of the Reflector Law, 25 an enactment
conceived with the same end in view. Calalang v. Williams found nothing
objectionable in a statute, the purpose of which was: "To promote safe transit
upon, and. avoid obstruction on roads and streets designated as national roads * *
*. 26 As a matter of fact, the first law sought to be nullified after the effectivity of
the 1935 Constitution, the National Defense Act, 27 with petitioner failing in his
quest, was likewise prompted by the imperative demands of public safety.
3. The futility of petitioner's effort to nullify both the Letter of Instruction and the
implementing rules and regulations becomes even more apparent considering his
failure to lay the necessary factual foundation to rebut the presumption of validity.
So it was held in Ermita-Malate Hotel and Motel Operators Association, Inc. v. City
Mayor of Manila. 28 The rationale was clearly set forth in an excerpt from a
decision of Justice Branders of the American Supreme Court, quoted in the
opinion: "The statute here questioned deals with a subject clearly within the scope
of the police power. We are asked to declare it void on the ground that the specific
method of regulation prescribed is unreasonable and hence deprives the plaintiff
of due process of law. As underlying questions of fact may condition the

constitutionality of legislation of this character, the presumption of

constitutionality must prevail in the absence of some factual foundation of record
in overthrowing the statute. 29
4. Nor did the Solicitor General as he very well could, rely solely on such rebutted
presumption of validity. As was pointed out in his Answer "The President certainly
had in his possession the necessary statistical information and data at the time he
issued said letter of instructions, and such factual foundation cannot be defeated
by petitioner's naked assertion that early warning devices 'are not too vital to the
prevention of nighttime vehicular accidents' because allegedly only 390 or 1.5 per
cent of the supposed 26,000 motor vehicle accidents that in 1976 involved rearend collisions (p. 12 of petition). Petitioner's statistics is not backed up by
demonstrable data on record. As aptly stated by this Honorable Court: Further: "It
admits of no doubt therefore that there being a presumption of validity, the
necessity for evidence to rebut it is unavoidable, unless the statute or ordinance
is void on its face, which is not the case here"' * * *. But even as g the verity of
petitioner's statistics, is that not reason enough to require the installation of early
warning devices to prevent another 390 rear-end collisions that could mean the
death of 390 or more Filipinos and the deaths that could likewise result from headon or frontal collisions with stalled vehicles?" 30 It is quite manifest then that the
issuance of such Letter of Instruction is encased in the armor of prior, careful
study by the Executive Department. To set it aside for alleged repugnancy to the
due process clause is to give sanction to conjectural claims that exceeded even
the broadest permissible limits of a pleader's well known penchant for
exaggeration.
5. The rather wild and fantastic nature of the charge of oppressiveness of this
Letter of Instruction was exposed in the Answer of the Solicitor General thus:
"Such early warning device requirement is not an expensive redundancy, nor
oppressive, for car owners whose cars are already equipped with 1) blinking lights
in the fore and aft of said motor vehicles,' 2) "battery-powered blinking lights
inside motor vehicles," 3) "built-in reflectorized tapes on front and rear bumpers
of motor vehicles," or 4) "well-lighted two (2) petroleum lamps (the Kinke) * * *
because: Being universal among the signatory countries to the said 1968 Vienna
Conventions, and visible even under adverse conditions at a distance of at least
400 meters, any motorist from this country or from any part of the world, who
sees a reflectorized rectangular early seaming device installed on the roads,
highways or expressways, will conclude, without thinking, that somewhere along
the travelled portion of that road, highway, or expressway, there is a motor
vehicle which is stationary, stalled or disabled which obstructs or endangers
passing traffic. On the other hand, a motorist who sees any of the aforementioned
other built in warning devices or the petroleum lamps will not immediately get
adequate advance warning because he will still think what that blinking light is all
about. Is it an emergency vehicle? Is it a law enforcement car? Is it an ambulance?
Such confusion or uncertainty in the mind of the motorist will thus increase, rather
than decrease, the danger of collision. 31
6. Nor did the other extravagant assertions of constitutional deficiency go
unrefuted in the Answer of the Solicitor General "There is nothing in the
questioned Letter of Instruction No. 229, as amended, or in Administrative Order
No. 1, which requires or compels motor vehicle owners to purchase the early
warning device prescribed thereby. All that is required is for motor vehicle owners
concerned like petitioner, to equip their motor vehicles with a pair of this early
warning device in question, procuring or obtaining the same from whatever
source. In fact, with a little of industry and practical ingenuity, motor vehicle
owners can even personally make or produce this early warning device so long as
the same substantially conforms with the specifications laid down in said letter of

instruction and administrative order. Accordingly the early warning device

requirement can neither be oppressive, onerous, immoral, nor confiscatory, much
less does it make manufacturers and dealers of said devices 'instant millionaires
at the expense of car owners' as petitioner so sweepingly concludes * * *.
Petitioner's fear that with the early warning device requirement 'a more subtle
racket may be committed by those called upon to enforce it * * * is an unfounded
speculation. Besides, that unscrupulous officials may try to enforce said
requirement in an unreasonable manner or to an unreasonable degree, does not
render the same illegal or immoral where, as in the instant case, the challenged
Letter of Instruction No. 229 and implementing order disclose none of the
constitutional defects alleged against it. 32
7 It does appear clearly that petitioner's objection to this Letter of Instruction is
not premised on lack of power, the justification for a finding of unconstitutionality,
but on the pessimistic, not to say negative, view he entertains as to its wisdom.
That approach, it put it at its mildest, is distinguished, if that is the appropriate
word, by its unorthodoxy. It bears repeating "that this Court, in the language of
Justice Laurel, 'does not pass upon questions of wisdom justice or expediency of
legislation.' As expressed by Justice Tuason: 'It is not the province of the courts to
supervise legislation and keep it within the bounds of propriety and common
sense. That is primarily and exclusively a legislative concern.' There can be no
possible objection then to the observation of Justice Montemayor. 'As long as laws
do not violate any Constitutional provision, the Courts merely interpret and apply
them regardless of whether or not they are wise or salutary. For they, according to
Justice Labrador, 'are not supposed to override legitimate policy and * * * never
inquire into the wisdom of the law.' It is thus settled, to paraphrase Chief Justice
Concepcion in Gonzales v. Commission on Elections, that only congressional
power or competence, not the wisdom of the action taken, may be the basis for
declaring a statute invalid. This is as it ought to be. The principle of separation of
powers has in the main wisely allocated the respective authority of each
department and confined its jurisdiction to such a sphere. There would then be
intrusion not allowable under the Constitution if on a matter left to the discretion
of a coordinate branch, the judiciary would substitute its own. If there be
adherence to the rule of law, as there ought to be, the last offender should be
courts of justice, to which rightly litigants submit their controversy precisely to
maintain unimpaired the supremacy of legal norms and prescriptions. The attack
on the validity of the challenged provision likewise insofar as there may be
objections, even if valid and cogent on is wisdom cannot be sustained. 33
8. The alleged infringement of the fundamental principle of non-delegation of
legislative power is equally without any support well-settled legal doctrines. Had
petitioner taken the trouble to acquaint himself with authoritative
pronouncements from this Tribunal, he would not have the temerity to make such
an assertion. An exempt from the aforecited decision of Edu v. Ericta sheds light
on the matter: "To avoid the taint of unlawful delegation, there must be a
standard, which implies at the very least that the legislature itself determines
matters of principle and lays down fundamental policy. Otherwise, the charge of
complete abdication may be hard to repel A standard thus defines legislative
policy, marks its maps out its boundaries and specifies the public agency to apply
it. It indicates the circumstances under which the legislative command is to be
effected. It is the criterion by which legislative purpose may be carried out.
Thereafter, the executive or administrative office designated may in pursuance of
the above guidelines promulgate supplemental rules and regulations. The
standard may be either express or implied. If the former, the non-delegation
objection is easily met. The standard though does not have to be spelled out
specifically. It could be implied from the policy and purpose of the act considered
as a whole. In the Reflector Law clearly, the legislative objective is public safety.

What is sought to be attained as in Calalang v. Williams is "safe transit upon the

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

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

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

attitudes that can be carried out for much less than the P 50 million burden that
would be imposed by the challenged order.
I do feel that a greater "degree of receptivity and sympathy" could be extended to
the petitioner for his civic mindedness in having filed the present petition g as
capricious and unreasonable the "all pervading police power" of the State instead
of throwing the case out of court and leaving the wrong impression that the
exercise of police power insofar as it may affect the life, liberty and property of
any person is no longer subject to judicial inquiry.

8.
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION

G.R. No. L-34915 June 24, 1983

CITY GOVERNMENT OF QUEZON CITY and CITY COUNCIL OF QUEZON
CITY, petitioners,
vs.
HON. JUDGE VICENTE G. ERICTA as Judge of the Court of First Instance of
Rizal, Quezon City, Branch XVIII; HIMLAYANG PILIPINO, INC., respondents.
City Fiscal for petitioners.
Manuel Villaruel, Jr. and Feliciano Tumale for respondents.

GUTIERREZ, JR., J.:

This is a petition for review which seeks the reversal of the decision of the Court
of First Instance of Rizal, Branch XVIII declaring Section 9 of Ordinance No. 6118,
S-64, of the Quezon City Council null and void.
Section 9 of Ordinance No. 6118, S-64, entitled "ORDINANCE REGULATING THE
ESTABLISHMENT, MAINTENANCE AND OPERATION OF PRIVATE MEMORIAL TYPE
CEMETERY OR BURIAL GROUND WITHIN THE JURISDICTION OF QUEZON CITY AND
PROVIDING PENALTIES FOR THE VIOLATION THEREOF" provides:
Sec. 9. At least six (6) percent of the total area of the memorial park
cemetery shall be set aside for charity burial of deceased persons who are
paupers and have been residents of Quezon City for at least 5 years prior to
their death, to be determined by competent City Authorities. The area so
designated shall immediately be developed and should be open for
operation not later than six months from the date of approval of the
application.
For several years, the aforequoted section of the Ordinance was not enforced by
city authorities but seven years after the enactment of the ordinance, the Quezon
City Council passed the following resolution:
RESOLVED by the council of Quezon assembled, to request, as it does
hereby request the City Engineer, Quezon City, to stop any further selling
and/or transaction of memorial park lots in Quezon City where the owners
thereof have failed to donate the required 6% space intended for paupers
burial.
Pursuant to this petition, the Quezon City Engineer notified respondent
Himlayang Pilipino, Inc. in writing that Section 9 of Ordinance No. 6118, S-64
would be enforced
Respondent Himlayang Pilipino reacted by filing with the Court of First
Instance of Rizal Branch XVIII at Quezon City, a petition for declaratory relief,
prohibition and mandamus with preliminary injunction (Sp. Proc. No. Q16002) seeking to annul Section 9 of the Ordinance in question The
respondent alleged that the same is contrary to the Constitution, the Quezon
City Charter, the Local Autonomy Act, and the Revised Administrative Code.
There being no issue of fact and the questions raised being purely legal both
petitioners and respondent agreed to the rendition of a judgment on the
pleadings. The respondent court, therefore, rendered the decision declaring
Section 9 of Ordinance No. 6118, S-64 null and void.

A motion for reconsideration having been denied, the City Government and City
Council filed the instant petition.
Petitioners argue that the taking of the respondent's property is a valid and
reasonable exercise of police power and that the land is taken for a public use as
it is intended for the burial ground of paupers. They further argue that the Quezon
City Council is authorized under its charter, in the exercise of local police power, "
to make such further ordinances and resolutions not repugnant to law as may be
necessary to carry into effect and discharge the powers and duties conferred by
this Act and such as it shall deem necessary and proper to provide for the health
and safety, promote the prosperity, improve the morals, peace, good order,
comfort and convenience of the city and the inhabitants thereof, and for the
protection of property therein."
On the other hand, respondent Himlayang Pilipino, Inc. contends that the taking or
confiscation of property is obvious because the questioned ordinance
permanently restricts the use of the property such that it cannot be used for any
reasonable purpose and deprives the owner of all beneficial use of his property.
The respondent also stresses that the general welfare clause is not available as a
source of power for the taking of the property in this case because it refers to "the
power of promoting the public welfare by restraining and regulating the use of
liberty and property." The respondent points out that if an owner is deprived of his
property outright under the State's police power, the property is generally not
taken for public use but is urgently and summarily destroyed in order to promote
the general welfare. The respondent cites the case of a nuisance per se or the
destruction of a house to prevent the spread of a conflagration.
We find the stand of the private respondent as well as the decision of the
respondent Judge to be well-founded. We quote with approval the lower court's
ruling which declared null and void Section 9 of the questioned city ordinance:
The issue is: Is Section 9 of the ordinance in question a valid exercise of the
police power?
An examination of the Charter of Quezon City (Rep. Act No. 537), does not
reveal any provision that would justify the ordinance in question except the
provision granting police power to the City. Section 9 cannot be justified
under the power granted to Quezon City to tax, fix the license fee,
and regulatesuch other business, trades, and occupation as may be
established or practised in the City.' (Subsections 'C', Sec. 12, R.A. 537).
The power to regulate does not include the power to prohibit (People vs.
Esguerra, 81 PhiL 33, Vega vs. Municipal Board of Iloilo, L-6765, May 12,
1954; 39 N.J. Law, 70, Mich. 396). A fortiori, the power to regulate does not
include the power to confiscate. The ordinance in question not only
confiscates but also prohibits the operation of a memorial park cemetery,
because under Section 13 of said ordinance, 'Violation of the provision
thereof is punishable with a fine and/or imprisonment and that upon
conviction thereof the permit to operate and maintain a private cemetery
shall be revoked or cancelled.' The confiscatory clause and the penal
provision in effect deter one from operating a memorial park cemetery.
Neither can the ordinance in question be justified under sub- section "t",
Section 12 of Republic Act 537 which authorizes the City Council to-'prohibit
the burial of the dead within the center of population of the city and provide
for their burial in such proper place and in such manner as the council may
determine, subject to the provisions of the general law regulating burial

grounds and cemeteries and governing funerals and disposal of the dead.'
(Sub-sec. (t), Sec. 12, Rep. Act No. 537).
There is nothing in the above provision which authorizes confiscation or as
euphemistically termed by the respondents, 'donation'
We now come to the question whether or not Section 9 of the ordinance in
question is a valid exercise of police power. The police power of Quezon City
is defined in sub-section 00, Sec. 12, Rep. Act 537 which reads as follows:
(00) To make such further ordinance and regulations not repugnant to
law as may be necessary to carry into effect and discharge the powers
and duties conferred by this act and such as it shall deem necessary
and proper to provide for the health and safety, promote, the
prosperity, improve the morals, peace, good order, comfort and
convenience of the city and the inhabitants thereof, and for the
protection of property therein; and enforce obedience thereto with
such lawful fines or penalties as the City Council may prescribe under
the provisions of subsection (jj) of this section.
We start the discussion with a restatement of certain basic principles.
Occupying the forefront in the bill of rights is the provision which states
that 'no person shall be deprived of life, liberty or property without due
process of law' (Art. Ill, Section 1 subparagraph 1, Constitution).
On the other hand, there are three inherent powers of government by
which the state interferes with the property rights, namely-. (1) police
power, (2) eminent domain, (3) taxation. These are said to exist
independently of the Constitution as necessary attributes of
sovereignty.
Police power is defined by Freund as 'the power of promoting the public
welfare by restraining and regulating the use of liberty and property'
(Quoted in Political Law by Tanada and Carreon, V-11, p. 50). It is
usually exerted in order to merely regulate the use and enjoyment of
property of the owner. If he is deprived of his property outright, it is not
taken for public use but rather to destroy in order to promote the
general welfare. In police power, the owner does not recover from the
government for injury sustained in consequence thereof (12 C.J. 623).
It has been said that police power is the most essential of government
powers, at times the most insistent, and always one of the least
limitable of the powers of government (Ruby vs. Provincial Board, 39
PhiL 660; Ichong vs. Hernandez, 1,7995, May 31, 1957). This power
embraces the whole system of public regulation (U.S. vs. Linsuya Fan,
10 PhiL 104). The Supreme Court has said that police power is so farreaching in scope that it has almost become impossible to limit its
sweep. As it derives its existence from the very existence of the state
itself, it does not need to be expressed or defined in its scope. Being
coextensive with self-preservation and survival itself, it is the most
positive and active of all governmental processes, the most essential
insistent and illimitable Especially it is so under the modern democratic
framework where the demands of society and nations have multiplied
to almost unimaginable proportions. The field and scope of police
power have become almost boundless, just as the fields of public
interest and public welfare have become almost all embracing and
have transcended human foresight. Since the Courts cannot foresee
the needs and demands of public interest and welfare, they cannot

delimit beforehand the extent or scope of the police power by which

and through which the state seeks to attain or achieve public interest
and welfare. (Ichong vs. Hernandez, L-7995, May 31, 1957).
The police power being the most active power of the government and
the due process clause being the broadest station on governmental
power, the conflict between this power of government and the due
process clause of the Constitution is oftentimes inevitable.
It will be seen from the foregoing authorities that police power is
usually exercised in the form of mere regulation or restriction in the
use of liberty or property for the promotion of the general welfare. It
does not involve the taking or confiscation of property with the
exception of a few cases where there is a necessity to confiscate
private property in order to destroy it for the purpose of protecting the
peace and order and of promoting the general welfare as for instance,
the confiscation of an illegally possessed article, such as opium and
firearms.
It seems to the court that Section 9 of Ordinance No. 6118, Series of
1964 of Quezon City is not a mere police regulation but an outright
confiscation. It deprives a person of his private property without due
process of law, nay, even without compensation.
In sustaining the decision of the respondent court, we are not unmindful of the
heavy burden shouldered by whoever challenges the validity of duly enacted
legislation whether national or local As early as 1913, this Court ruled in Case v.
Board of Health (24 PhiL 250) that the courts resolve every presumption in favor
of validity and, more so, where the ma corporation asserts that the ordinance was
enacted to promote the common good and general welfare.
In the leading case of Ermita-Malate Hotel and Motel Operators Association Inc. v.
City Mayor of Manila (20 SCRA 849) the Court speaking through the then
Associate Justice and now Chief Justice Enrique M. Fernando stated
Primarily what calls for a reversal of such a decision is the a of any
evidence to offset the presumption of validity that attaches to a statute
or ordinance. As was expressed categorically by Justice Malcolm 'The
presumption is all in favor of validity. ... The action of the elected
representatives of the people cannot be lightly set aside. The
councilors must, in the very nature of things, be familiar with the
necessities of their particular ... municipality and with all the facts and
lances 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. ...
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. (U.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 Ebona v.
Daet, [1950]85 Phil. 369.)
We have likewise considered the principles earlier stated in Case v.
Board of Health supra :
... Under the provisions of municipal charters which are known as the
general welfare clauses, a city, by virtue of its police power, may adopt

ordinances to the peace, safety, health, morals and the best and
highest interests of the municipality. It is a well-settled principle,
growing out of the nature of well-ordered and society, that every
holder of property, however absolute and may be his title, holds it
under the implied liability that his use of it shall not be injurious to the
equal enjoyment of others having an equal right to the enjoyment of
their property, nor injurious to the rights of the community. An property
in the state is held subject to its general regulations, which are
necessary to the common good and general welfare. 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. The state, under the police power, is
possessed with plenary power to deal with all matters relating to the
general health, morals, and safety of the people, so long as it does not
contravene any positive inhibition of the organic law and providing that
such power is not exercised in such a manner as to justify the
interference of the courts to prevent positive wrong and oppression.
But find them not applicable to the facts of this case.
There is no reasonable relation between the setting aside of at least six (6)
percent of the total area of an private cemeteries for charity burial grounds of
deceased paupers and the promotion of health, morals, good order, safety, or the
general welfare of the people. The ordinance is actually a taking without
compensation of a certain area from a private cemetery to benefit paupers who
are charges of the municipal corporation. Instead of building or maintaining a
public cemetery for this purpose, the city passes the burden to private
cemeteries.
The expropriation without compensation of a portion of private cemeteries is not
covered by Section 12(t) of Republic Act 537, the Revised Charter of Quezon City
which empowers the city council to prohibit the burial of the dead within the
center of population of the city and to provide for their burial in a proper place
subject to the provisions of general law regulating burial grounds and cemeteries.
When the Local Government Code, Batas Pambansa Blg. 337 provides in Section
177 (q) that a Sangguniang panlungsod may "provide for the burial of the dead in
such place and in such manner as prescribed by law or ordinance" it simply
authorizes the city to provide its own city owned land or to buy or expropriate
private properties to construct public cemeteries. This has been the law and
practise in the past. It continues to the present. Expropriation, however, requires
payment of just compensation. The questioned ordinance is different from laws
and regulations requiring owners of subdivisions to set aside certain areas for
streets, parks, playgrounds, and other public facilities from the land they sell to
buyers of subdivision lots. The necessities of public safety, health, and
convenience are very clear from said requirements which are intended to insure
the development of communities with salubrious and wholesome environments.
The beneficiaries of the regulation, in turn, are made to pay by the subdivision
developer when individual lots are sold to home-owners.
As a matter of fact, the petitioners rely solely on the general welfare clause or on
implied powers of the municipal corporation, not on any express provision of law
as statutory basis of their exercise of power. The clause has always received broad
and liberal interpretation but we cannot stretch it to cover this particular taking.
Moreover, the questioned ordinance was passed after Himlayang Pilipino, Inc. had
incorporated. received necessary licenses and permits and commenced operating.

The sequestration of six percent of the cemetery cannot even be considered as

having been impliedly acknowledged by the private respondent when it accepted
the permits to commence operations.
WHEREFORE, the petition for review is hereby DISMISSED. The decision of the
respondent court is affirmed.
SO ORDERED.
Teehankee (Chairman), Melencio-Herrera, Plana, Vasquez and Relova, JJ., concur.

9.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 74457 March 20, 1987
RESTITUTO YNOT, petitioner,
vs.
INTERMEDIATE APPELLATE COURT, THE STATION COMMANDER,
INTEGRATED NATIONAL POLICE, BAROTAC NUEVO, ILOILO and THE

REGIONAL DIRECTOR, BUREAU OF ANIMAL INDUSTRY, REGION IV, ILOILO

CITY, respondents.
Ramon A. Gonzales for petitioner.
CRUZ, J.:
The essence of due process is distilled in the immortal cry of Themistocles to
Alcibiades "Strike but hear me first!" It is this cry that the petitioner in effect
repeats here as he challenges the constitutionality of Executive Order No. 626-A.
The said executive order reads in full as follows:
WHEREAS, the President has given orders prohibiting the interprovincial
movement of carabaos and the slaughtering of carabaos not complying with
the requirements of Executive Order No. 626 particularly with respect to
age;
WHEREAS, it has been observed that despite such orders the violators still
manage to circumvent the prohibition against inter-provincial movement of
carabaos by transporting carabeef instead; and
WHEREAS, in order to achieve the purposes and objectives of Executive
Order No. 626 and the prohibition against interprovincial movement of
carabaos, it is necessary to strengthen the said Executive Order and provide
for the disposition of the carabaos and carabeef subject of the violation;
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by
virtue of the powers vested in me by the Constitution, do hereby promulgate
the following:
SECTION 1. Executive Order No. 626 is hereby amended such that
henceforth, no carabao regardless of age, sex, physical condition or purpose
and no carabeef shall be transported from one province to another. The
carabao or carabeef transported in violation of this Executive Order as
amended shall be subject to confiscation and forfeiture by the government,
to be distributed to charitable institutions and other similar institutions as
the Chairman of the National Meat Inspection Commission may ay see fit, in
the case of carabeef, and to deserving farmers through dispersal as the
Director of Animal Industry may see fit, in the case of carabaos.
SECTION 2. This Executive Order shall take effect immediately.
Done in the City of Manila, this 25th day of October, in the year of Our Lord,
nineteen hundred and eighty.
(SGD.) FERDINAND E. MARCOS (President Republic of the Philippines)
The petitioner had transported six carabaos in a pump boat from Masbate to Iloilo
on January 13, 1984, when they were confiscated by the police station
commander of Barotac Nuevo, Iloilo, for violation of the above measure. 1 The
petitioner sued for recovery, and the Regional Trial Court of Iloilo City issued a writ
of replevin upon his filing of a supersedeas bond of P12,000.00. After considering
the merits of the case, the court sustained the confiscation of the carabaos and,
since they could no longer be produced, ordered the confiscation of the bond. The
court also declined to rule on the constitutionality of the executive order, as raise
by the petitioner, for lack of authority and also for its presumed validity. 2

The petitioner appealed the decision to the Intermediate Appellate Court,* 3 which
upheld the trial court, ** and he has now come before us in this petition for review
on certiorari.
The thrust of his petition is that the executive order is unconstitutional insofar as
it authorizes outright confiscation of the carabao or carabeef being transported
across provincial boundaries. His claim is that the penalty is invalid because it is
imposed without according the owner a right to be heard before a competent and
impartial court as guaranteed by due process. He complains that the measure
should not have been presumed, and so sustained, as constitutional. There is also
a challenge to the improper exercise of the legislative power by the former
President under Amendment No. 6 of the 1973 Constitution. 4
While also involving the same executive order, the case of Pesigan v. Angeles 5 is
not applicable here. The question raised there was the necessity of the previous
publication of the measure in the Official Gazette before it could be considered
enforceable. We imposed the requirement then on the basis of due process of law.
In doing so, however, this Court did not, as contended by the Solicitor General,
impliedly affirm the constitutionality of Executive Order No. 626-A. That is an
entirely different matter.
This Court has declared that while lower courts should observe a becoming
modesty in examining constitutional questions, they are nonetheless not
prevented from resolving the same whenever warranted, subject only to review by
the highest tribunal. 6 We have jurisdiction under the Constitution to "review,
revise, reverse, modify or affirm on appeal or certiorari, as the law or rules of
court may provide," final judgments and orders of lower courts in, among others,
all cases involving the constitutionality of certain measures. 7 This simply means
that the resolution of such cases may be made in the first instance by these lower
courts.
And while it is true that laws are presumed to be constitutional, that presumption
is not by any means conclusive and in fact may be rebutted. Indeed, if there be a
clear showing of their invalidity, and of the need to declare them so, then "will be
the time to make the hammer fall, and heavily," 8 to recall Justice Laurel's
trenchant warning. Stated otherwise, courts should not follow the path of least
resistance by simply presuming the constitutionality of a law when it is
questioned. On the contrary, they should probe the issue more deeply, to relieve
the abscess, paraphrasing another distinguished jurist, 9 and so heal the wound or
excise the affliction.
Judicial power authorizes this; and when the exercise is demanded, there should
be no shirking of the task for fear of retaliation, or loss of favor, or popular
censure, or any other similar inhibition unworthy of the bench, especially this
Court.
The challenged measure is denominated an executive order but it is really
presidential decree, promulgating a new rule instead of merely implementing an
existing law. It was issued by President Marcos not for the purpose of taking care
that the laws were faithfully executed but in the exercise of his legislative
authority under Amendment No. 6. It was provided thereunder that whenever in
his judgment there existed a grave emergency or a threat or imminence thereof
or whenever the legislature failed or was unable to act adequately on any matter
that in his judgment required immediate action, he could, in order to meet the
exigency, issue decrees, orders or letters of instruction that were to have the
force and effect of law. As there is no showing of any exigency to justify the
exercise of that extraordinary power then, the petitioner has reason, indeed, to

question the validity of the executive order. Nevertheless, since the determination
of the grounds was supposed to have been made by the President "in his
judgment, " a phrase that will lead to protracted discussion not really necessary at
this time, we reserve resolution of this matter until a more appropriate occasion.
For the nonce, we confine ourselves to the more fundamental question of due
process.
It is part of the art of constitution-making that the provisions of the charter be
cast in precise and unmistakable language to avoid controversies that might arise
on their correct interpretation. That is the Ideal. In the case of the due process
clause, however, this rule was deliberately not followed and the wording was
purposely kept ambiguous. In fact, a proposal to delineate it more clearly was
submitted in the Constitutional Convention of 1934, but it was rejected by
Delegate Jose P. Laurel, Chairman of the Committee on the Bill of Rights, who
forcefully argued against it. He was sustained by the body. 10
The due process clause was kept intentionally vague so it would remain also
conveniently resilient. This was felt necessary because due process is not, like
some provisions of the fundamental law, an "iron rule" laying down an implacable
and immutable command for all seasons and all persons. Flexibility must be the
best virtue of the guaranty. The very elasticity of the due process clause was
meant to make it adapt easily to every situation, enlarging or constricting its
protection as the changing times and circumstances may require.
Aware of this, the courts have also hesitated to adopt their own specific
description of due process lest they confine themselves in a legal straitjacket that
will deprive them of the elbow room they may need to vary the meaning of the
clause whenever indicated. Instead, they have preferred to leave the import of the
protection open-ended, as it were, to be "gradually ascertained by the process of
inclusion and exclusion in the course of the decision of cases as they
arise." 11 Thus, Justice Felix Frankfurter of the U.S. Supreme Court, for example,
would go no farther than to define due process and in so doing sums it all up
as nothing more and nothing less than "the embodiment of the sporting Idea of
fair play." 12
When the barons of England extracted from their sovereign liege the reluctant
promise that that Crown would thenceforth not proceed against the life liberty or
property of any of its subjects except by the lawful judgment of his peers or the
law of the land, they thereby won for themselves and their progeny that splendid
guaranty of fairness that is now the hallmark of the free society. The solemn vow
that King John made at Runnymede in 1215 has since then resounded through the
ages, as a ringing reminder to all rulers, benevolent or base, that every person,
when confronted by the stern visage of the law, is entitled to have his say in a fair
and open hearing of his cause.
The closed mind has no place in the open society. It is part of the sporting Idea of
fair play to hear "the other side" before an opinion is formed or a decision is made
by those who sit in judgment. Obviously, one side is only one-half of the question;
the other half must also be considered if an impartial verdict is to be reached
based on an informed appreciation of the issues in contention. It is indispensable
that the two sides complement each other, as unto the bow the arrow, in leading
to the correct ruling after examination of the problem not from one or the other
perspective only but in its totality. A judgment based on less that this full
appraisal, on the pretext that a hearing is unnecessary or useless, is tainted with
the vice of bias or intolerance or ignorance, or worst of all, in repressive regimes,
the insolence of power.

The minimum requirements of due process are notice and hearing 13 which,
generally speaking, may not be dispensed with because they are intended as a
safeguard against official arbitrariness. It is a gratifying commentary on our
judicial system that the jurisprudence of this country is rich with applications of
this guaranty as proof of our fealty to the rule of law and the ancient rudiments of
fair play. We have consistently declared that every person, faced by the awesome
power of the State, is entitled to "the law of the land," which Daniel Webster
described almost two hundred years ago in the famous Dartmouth College
Case, 14 as "the law which hears before it condemns, which proceeds upon
inquiry and renders judgment only after trial." It has to be so if the rights of every
person are to be secured beyond the reach of officials who, out of mistaken zeal
or plain arrogance, would degrade the due process clause into a worn and empty
catchword.
This is not to say that notice and hearing are imperative in every case for, to be
sure, there are a number of admitted exceptions. The conclusive presumption, for
example, bars the admission of contrary evidence as long as such presumption is
based on human experience or there is a rational connection between the fact
proved and the fact ultimately presumed therefrom. 15 There are instances when
the need for expeditions action will justify omission of these requisites, as in the
summary abatement of a nuisance per se, like a mad dog on the loose, which may
be killed on sight because of the immediate danger it poses to the safety and
lives of the people. Pornographic materials, contaminated meat and narcotic
drugs are inherently pernicious and may be summarily destroyed. The passport of
a person sought for a criminal offense may be cancelled without hearing, to
compel his return to the country he has fled. 16Filthy restaurants may be
summarily padlocked in the interest of the public health and bawdy houses to
protect the public morals. 17 In such instances, previous judicial hearing may be
omitted without violation of due process in view of the nature of the property
involved or the urgency of the need to protect the general welfare from a clear
and present danger.
The protection of the general welfare is the particular function of the police power
which both restraints and is restrained by due process. The police power is simply
defined as the power inherent in the State to regulate liberty and property for the
promotion of the general welfare. 18 By reason of its function, it extends to all the
great public needs and is described as the most pervasive, the least limitable and
the most demanding of the three inherent powers of the State, far outpacing
taxation and eminent domain. The individual, as a member of society, is hemmed
in by the police power, which affects him even before he is born and follows him
still after he is dead from the womb to beyond the tomb in practically
everything he does or owns. Its reach is virtually limitless. It is a ubiquitous and
often unwelcome intrusion. Even so, as long as the activity or the property has
some relevance to the public welfare, its regulation under the police power is not
only proper but necessary. And the justification is found in the venerable Latin
maxims, Salus populi est suprema lex and Sic utere tuo ut alienum non
laedas, which call for the subordination of individual interests to the benefit of the
greater number.
It is this power that is now invoked by the government to justify Executive Order
No. 626-A, amending the basic rule in Executive Order No. 626, prohibiting the
slaughter of carabaos except under certain conditions. The original measure was
issued for the reason, as expressed in one of its Whereases, that "present
conditions demand that the carabaos and the buffaloes be conserved for the
benefit of the small farmers who rely on them for energy needs." We affirm at the
outset the need for such a measure. In the face of the worsening energy crisis and
the increased dependence of our farms on these traditional beasts of burden, the

government would have been remiss, indeed, if it had not taken steps to protect
and preserve them.
A similar prohibition was challenged in United States v. Toribio, 19 where a law
regulating the registration, branding and slaughter of large cattle was claimed to
be a deprivation of property without due process of law. The defendant had been
convicted thereunder for having slaughtered his own carabao without the required
permit, and he appealed to the Supreme Court. The conviction was affirmed. The
law was sustained as a valid police measure to prevent the indiscriminate killing
of carabaos, which were then badly needed by farmers. An epidemic had stricken
many of these animals and the reduction of their number had resulted in an acute
decline in agricultural output, which in turn had caused an incipient famine.
Furthermore, because of the scarcity of the animals and the consequent increase
in their price, cattle-rustling had spread alarmingly, necessitating more effective
measures for the registration and branding of these animals. The Court held that
the questioned statute was a valid exercise of the police power and declared in
part as follows:
To justify the State in thus interposing its authority in behalf of the
public, it must appear, first, that the interests of the public generally,
as distinguished from those of a particular class, require such
interference; and second, that the means are reasonably necessary for
the accomplishment of the purpose, and not unduly oppressive upon
individuals. ...
From what has been said, we think it is clear that the enactment of the
provisions of the statute under consideration was required by "the
interests of the public generally, as distinguished from those of a
particular class" and that the prohibition of the slaughter of carabaos
for human consumption, so long as these animals are fit for
agricultural work or draft purposes was a "reasonably necessary"
limitation on private ownership, to protect the community from the loss
of the services of such animals by their slaughter by improvident
owners, tempted either by greed of momentary gain, or by a desire to
enjoy the luxury of animal food, even when by so doing the productive
power of the community may be measurably and dangerously affected.
In the light of the tests mentioned above, we hold with the Toribio Case that the
carabao, as the poor man's tractor, so to speak, has a direct relevance to the
public welfare and so is a lawful subject of Executive Order No. 626. The method
chosen in the basic measure is also reasonably necessary for the purpose sought
to be achieved and not unduly oppressive upon individuals, again following the
above-cited doctrine. There is no doubt that by banning the slaughter of these
animals except where they are at least seven years old if male and eleven years
old if female upon issuance of the necessary permit, the executive order will be
conserving those still fit for farm work or breeding and preventing their
improvident depletion.
But while conceding that the amendatory measure has the same lawful subject as
the original executive order, we cannot say with equal certainty that it complies
with the second requirement, viz., that there be a lawful method. We note that to
strengthen the original measure, Executive Order No. 626-A imposes an absolute
ban not on theslaughter of the carabaos but on their movement, providing that
"no carabao regardless of age, sex, physical condition or purpose (sic) and no
carabeef shall be transported from one province to another." The object of the
prohibition escapes us. The reasonable connection between the means employed
and the purpose sought to be achieved by the questioned measure is missing

We do not see how the prohibition of the inter-provincial transport of carabaos can
prevent their indiscriminate slaughter, considering that they can be killed
anywhere, with no less difficulty in one province than in another. Obviously,
retaining the carabaos in one province will not prevent their slaughter there, any
more than moving them to another province will make it easier to kill them there.
As for the carabeef, the prohibition is made to apply to it as otherwise, so says
executive order, it could be easily circumvented by simply killing the animal.
Perhaps so. However, if the movement of the live animals for the purpose of
preventing their slaughter cannot be prohibited, it should follow that there is no
reason either to prohibit their transfer as, not to be flippant dead meat.
Even if a reasonable relation between the means and the end were to be
assumed, we would still have to reckon with the sanction that the measure applies
for violation of the prohibition. The penalty is outright confiscation of the carabao
or carabeef being transported, to be meted out by the executive authorities,
usually the police only. In the Toribio Case, the statute was sustained because the
penalty prescribed was fine and imprisonment, to be imposed by the court after
trial and conviction of the accused. Under the challenged measure, significantly,
no such trial is prescribed, and the property being transported is immediately
impounded by the police and declared, by the measure itself, as forfeited to the
government.
In the instant case, the carabaos were arbitrarily confiscated by the police station
commander, were returned to the petitioner only after he had filed a complaint for
recovery and given a supersedeas bond of P12,000.00, which was ordered
confiscated upon his failure to produce the carabaos when ordered by the trial
court. The executive order defined the prohibition, convicted the petitioner and
immediately imposed punishment, which was carried out forthright. The measure
struck at once and pounced upon the petitioner without giving him a chance to be
heard, thus denying him the centuries-old guaranty of elementary fair play.
It has already been remarked that there are occasions when notice and hearing
may be validly dispensed with notwithstanding the usual requirement for these
minimum guarantees of due process. It is also conceded that summary action
may be validly taken in administrative proceedings as procedural due process is
not necessarily judicial only. 20 In the exceptional cases accepted, however. there
is a justification for the omission of the right to a previous hearing, to wit,
the immediacy of the problem sought to be corrected and the urgency of the need
to correct it.
In the case before us, there was no such pressure of time or action calling for the
petitioner's peremptory treatment. The properties involved were not even
inimical per se as to require their instant destruction. There certainly was no
reason why the offense prohibited by the executive order should not have been
proved first in a court of justice, with the accused being accorded all the rights
safeguarded to him under the Constitution. Considering that, as we held
in Pesigan v. Angeles, 21 Executive Order No. 626-A is penal in nature, the violation
thereof should have been pronounced not by the police only but by a court of
justice, which alone would have had the authority to impose the prescribed
penalty, and only after trial and conviction of the accused.
We also mark, on top of all this, the questionable manner of the disposition of the
confiscated property as prescribed in the questioned executive order. It is there
authorized that the seized property shall "be distributed to charitable institutions
and other similar institutions as the Chairman of the National Meat Inspection
Commissionmay see fit, in the case of carabeef, and to deserving farmers through
dispersal as the Director of Animal Industrymay see fit, in the case of carabaos."

(Emphasis supplied.) The phrase "may see fit" is an extremely generous and
dangerous condition, if condition it is. It is laden with perilous opportunities for
partiality and abuse, and even corruption. One searches in vain for the usual
standard and the reasonable guidelines, or better still, the limitations that the said
officers must observe when they make their distribution. There is none. Their
options are apparently boundless. Who shall be the fortunate beneficiaries of their
generosity and by what criteria shall they be chosen? Only the officers named can
supply the answer, they and they alone may choose the grantee as they see fit,
and in their own exclusive discretion. Definitely, there is here a "roving
commission," a wide and sweeping authority that is not "canalized within banks
that keep it from overflowing," in short, a clearly profligate and therefore invalid
delegation of legislative powers.
To sum up then, we find that the challenged measure is an invalid exercise of the
police power because the method employed to conserve the carabaos is not
reasonably necessary to the purpose of the law and, worse, is unduly oppressive.
Due process is violated because the owner of the property confiscated is denied
the right to be heard in his defense and is immediately condemned and punished.
The conferment on the administrative authorities of the power to adjudge the
guilt of the supposed offender is a clear encroachment on judicial functions and
militates against the doctrine of separation of powers. There is, finally, also an
invalid delegation of legislative powers to the officers mentioned therein who are
granted unlimited discretion in the distribution of the properties arbitrarily taken.
For these reasons, we hereby declare Executive Order No. 626-A unconstitutional.
We agree with the respondent court, however, that the police station commander
who confiscated the petitioner's carabaos is not liable in damages for enforcing
the executive order in accordance with its mandate. The law was at that time
presumptively valid, and it was his obligation, as a member of the police, to
enforce it. It would have been impertinent of him, being a mere subordinate of the
President, to declare the executive order unconstitutional and, on his own
responsibility alone, refuse to execute it. Even the trial court, in fact, and the
Court of Appeals itself did not feel they had the competence, for all their superior
authority, to question the order we now annul.
The Court notes that if the petitioner had not seen fit to assert and protect his
rights as he saw them, this case would never have reached us and the taking of
his property under the challenged measure would have become
afait accompli despite its invalidity. We commend him for his spirit. Without the
present challenge, the matter would have ended in that pump boat in Masbate
and another violation of the Constitution, for all its obviousness, would have been
perpetrated, allowed without protest, and soon forgotten in the limbo of
relinquished rights.
The strength of democracy lies not in the rights it guarantees but in the courage
of the people to invoke them whenever they are ignored or violated. Rights are
but weapons on the wall if, like expensive tapestry, all they do is embellish and
impress. Rights, as weapons, must be a promise of protection. They become truly
meaningful, and fulfill the role assigned to them in the free society, if they are
kept bright and sharp with use by those who are not afraid to assert them.
WHEREFORE, Executive Order No. 626-A is hereby declared unconstitutional.
Except as affirmed above, the decision of the Court of Appeals is reversed.
The supersedeas bond is cancelled and the amount thereof is ordered restored to
the petitioner. No costs.
SO ORDERED.

Teehankee, C.J., Yap, Fernan, Narvasa, Gutierrez, Jr., Paras, Gancayco, Padilla
Bidin Sarmiento and Cortes, JJ., concur.
Melencio-Herrera and Feliciano, JJ., are on leave.

10.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-75697 June 18, 1987
VALENTIN TIO doing business under the name and style of OMI
ENTERPRISES, petitioner,
vs.
VIDEOGRAM REGULATORY BOARD, MINISTER OF FINANCE, METRO
MANILA COMMISSION, CITY MAYOR and CITY TREASURER OF
MANILA, respondents.
Nelson Y. Ng for petitioner.

The City Legal Officer for respondents City Mayor and City Treasurer.
MELENCIO-HERRERA, J.:
This petition was filed on September 1, 1986 by petitioner on his own behalf and
purportedly on behalf of other videogram operators adversely affected. It assails
the constitutionality of Presidential Decree No. 1987 entitled "An Act Creating the
Videogram Regulatory Board" with broad powers to regulate and supervise the
videogram industry (hereinafter briefly referred to as the BOARD). The Decree was
promulgated on October 5, 1985 and took effect on April 10, 1986, fifteen (15)
days after completion of its publication in the Official Gazette.
On November 5, 1985, a month after the promulgation of the abovementioned
decree, Presidential Decree No. 1994 amended the National Internal Revenue
Code providing, inter alia:
SEC. 134. Video Tapes. There shall be collected on each processed videotape cassette, ready for playback, regardless of length, an annual tax of five
pesos; Provided, That locally manufactured or imported blank video tapes
shall be subject to sales tax.
On October 23, 1986, the Greater Manila Theaters Association, Integrated Movie
Producers, Importers and Distributors Association of the Philippines, and Philippine
Motion Pictures Producers Association, hereinafter collectively referred to as the
Intervenors, were permitted by the Court to intervene in the case, over
petitioner's opposition, upon the allegations that intervention was necessary for
the complete protection of their rights and that their "survival and very existence
is threatened by the unregulated proliferation of film piracy." The Intervenors were
thereafter allowed to file their Comment in Intervention.
The rationale behind the enactment of the DECREE, is set out in its preambular
clauses as follows:
1. WHEREAS, the proliferation and unregulated circulation of videograms
including, among others, videotapes, discs, cassettes or any technical
improvement or variation thereof, have greatly prejudiced the operations of
moviehouses and theaters, and have caused a sharp decline in theatrical
attendance by at least forty percent (40%) and a tremendous drop in the
collection of sales, contractor's specific, amusement and other taxes,
thereby resulting in substantial losses estimated at P450 Million annually in
government revenues;
2. WHEREAS, videogram(s) establishments collectively earn around P600
Million per annum from rentals, sales and disposition of videograms, and
such earnings have not been subjected to tax, thereby depriving the
Government of approximately P180 Million in taxes each year;
3. WHEREAS, the unregulated activities of videogram establishments have
also affected the viability of the movie industry, particularly the more than
1,200 movie houses and theaters throughout the country, and occasioned
industry-wide displacement and unemployment due to the shutdown of
numerous moviehouses and theaters;
4. "WHEREAS, in order to ensure national economic recovery, it is imperative
for the Government to create an environment conducive to growth and
development of all business industries, including the movie industry which
has an accumulated investment of about P3 Billion;

5. WHEREAS, proper taxation of the activities of videogram establishments

will not only alleviate the dire financial condition of the movie industry upon
which more than 75,000 families and 500,000 workers depend for their
livelihood, but also provide an additional source of revenue for the
Government, and at the same time rationalize the heretofore uncontrolled
distribution of videograms;
6. WHEREAS, the rampant and unregulated showing of obscene videogram
features constitutes a clear and present danger to the moral and spiritual
well-being of the youth, and impairs the mandate of the Constitution for the
State to support the rearing of the youth for civic efficiency and the
development of moral character and promote their physical, intellectual, and
social well-being;
7. WHEREAS, civic-minded citizens and groups have called for remedial
measures to curb these blatant malpractices which have flaunted our
censorship and copyright laws;
8. WHEREAS, in the face of these grave emergencies corroding the moral
values of the people and betraying the national economic recovery program,
bold emergency measures must be adopted with dispatch; ... (Numbering of
paragraphs supplied).
Petitioner's attack on the constitutionality of the DECREE rests on the following
grounds:
1. Section 10 thereof, which imposes a tax of 30% on the gross receipts
payable to the local government is a RIDER and the same is not germane to
the subject matter thereof;
2. The tax imposed is harsh, confiscatory, oppressive and/or in unlawful
restraint of trade in violation of the due process clause of the Constitution;
3. There is no factual nor legal basis for the exercise by the President of the
vast powers conferred upon him by Amendment No. 6;
4. There is undue delegation of power and authority;
5. The Decree is an ex-post facto law; and
6. There is over regulation of the video industry as if it were a nuisance,
which it is not.
We shall consider the foregoing objections in seriatim.
1. The Constitutional requirement that "every bill shall embrace only one subject
which shall be expressed in the title thereof" 1 is sufficiently complied with if the
title be comprehensive enough to include the general purpose which a statute
seeks to achieve. It is not necessary that the title express each and every end
that the statute wishes to accomplish. The requirement is satisfied if all the parts
of the statute are related, and are germane to the subject matter expressed in the
title, or as long as they are not inconsistent with or foreign to the general subject
and title.2 An act having a single general subject, indicated in the title, may
contain any number of provisions, no matter how diverse they may be, so long as
they are not inconsistent with or foreign to the general subject, and may be
considered in furtherance of such subject by providing for the method and means
of carrying out the general object." 3 The rule also is that the constitutional

requirement as to the title of a bill should not be so narrowly construed as to

cripple or impede the power of legislation. 4 It should be given practical rather
than technical construction. 5
Tested by the foregoing criteria, petitioner's contention that the tax provision of
the DECREE is a rider is without merit. That section reads, inter alia:
Section 10. Tax on Sale, Lease or Disposition of Videograms.
Notwithstanding any provision of law to the contrary, the province shall
collect a tax of thirty percent (30%) of the purchase price or rental rate, as
the case may be, for every sale, lease or disposition of a videogram
containing a reproduction of any motion picture or audiovisual program. Fifty
percent (50%) of the proceeds of the tax collected shall accrue to the
province, and the other fifty percent (50%) shall acrrue to the municipality
where the tax is collected; PROVIDED, That in Metropolitan Manila, the tax
shall be shared equally by the City/Municipality and the Metropolitan Manila
Commission.
xxx xxx xxx
The foregoing provision is allied and germane to, and is reasonably necessary for
the accomplishment of, the general object of the DECREE, which is the regulation
of the video industry through the Videogram Regulatory Board as expressed in its
title. The tax provision is not inconsistent with, nor foreign to that general subject
and title. As a tool for regulation 6 it is simply one of the regulatory and control
mechanisms scattered throughout the DECREE. The express purpose of the
DECREE to include taxation of the video industry in order to regulate and
rationalize the heretofore uncontrolled distribution of videograms is evident from
Preambles 2 and 5, supra. Those preambles explain the motives of the lawmaker
in presenting the measure. The title of the DECREE, which is the creation of the
Videogram Regulatory Board, is comprehensive enough to include the purposes
expressed in its Preamble and reasonably covers all its provisions. It is
unnecessary to express all those objectives in the title or that the latter be an
index to the body of the DECREE. 7
2. Petitioner also submits that the thirty percent (30%) tax imposed is harsh and
oppressive, confiscatory, and in restraint of trade. However, it is beyond serious
question that a tax does not cease to be valid merely because it regulates,
discourages, or even definitely deters the activities taxed. 8 The power to impose
taxes is one so unlimited in force and so searching in extent, that the courts
scarcely venture to declare that it is subject to any restrictions whatever, except
such as rest in the discretion of the authority which exercises it. 9 In imposing a
tax, the legislature acts upon its constituents. This is, in general, a sufficient
security against erroneous and oppressive taxation. 10
The tax imposed by the DECREE is not only a regulatory but also a revenue
measure prompted by the realization that earnings of videogram establishments
of around P600 million per annum have not been subjected to tax, thereby
depriving the Government of an additional source of revenue. It is an end-user
tax, imposed on retailers for every videogram they make available for public
viewing. It is similar to the 30% amusement tax imposed or borne by the movie
industry which the theater-owners pay to the government, but which is passed on
to the entire cost of the admission ticket, thus shifting the tax burden on the
buying or the viewing public. It is a tax that is imposed uniformly on all videogram
operators.

The levy of the 30% tax is for a public purpose. It was imposed primarily to
answer the need for regulating the video industry, particularly because of the
rampant film piracy, the flagrant violation of intellectual property rights, and the
proliferation of pornographic video tapes. And while it was also an objective of the
DECREE to protect the movie industry, the tax remains a valid imposition.
The public purpose of a tax may legally exist even if the motive which
impelled the legislature to impose the tax was to favor one industry over
another. 11
It is inherent in the power to tax that a state be free to select the subjects of
taxation, and it has been repeatedly held that "inequities which result from a
singling out of one particular class for taxation or exemption infringe no
constitutional limitation". 12 Taxation has been made the implement of the
state's police power. 13
At bottom, the rate of tax is a matter better addressed to the taxing legislature.
3. Petitioner argues that there was no legal nor factual basis for the promulgation
of the DECREE by the former President under Amendment No. 6 of the 1973
Constitution providing that "whenever in the judgment of the President ... , there
exists a grave emergency or a threat or imminence thereof, or whenever the
interim Batasang Pambansa or the regular National Assembly fails or is unable to
act adequately on any matter for any reason that in his judgment requires
immediate action, he may, in order to meet the exigency, issue the necessary
decrees, orders, or letters of instructions, which shall form part of the law of the
land."
In refutation, the Intervenors and the Solicitor General's Office aver that the 8th
"whereas" clause sufficiently summarizes the justification in that grave
emergencies corroding the moral values of the people and betraying the national
economic recovery program necessitated bold emergency measures to be
adopted with dispatch. Whatever the reasons "in the judgment" of the then
President, considering that the issue of the validity of the exercise of legislative
power under the said Amendment still pends resolution in several other cases, we
reserve resolution of the question raised at the proper time.
4. Neither can it be successfully argued that the DECREE contains an undue
delegation of legislative power. The grant in Section 11 of the DECREE of authority
to the BOARD to "solicit the direct assistance of other agencies and units of the
government and deputize, for a fixed and limited period, the heads or personnel
of such agencies and units to perform enforcement functions for the Board" is not
a delegation of the power to legislate but merely a conferment of authority or
discretion as to its execution, enforcement, and implementation. "The true
distinction is between the delegation of power to make the law, which necessarily
involves a discretion as to what it shall be, and conferring authority or discretion
as to its execution to be exercised under and in pursuance of the law. The first
cannot be done; to the latter, no valid objection can be made." 14 Besides, in the
very language of the decree, the authority of the BOARD to solicit such assistance
is for a "fixed and limited period" with the deputized agencies concerned being
"subject to the direction and control of the BOARD." That the grant of such
authority might be the source of graft and corruption would not stigmatize the
DECREE as unconstitutional. Should the eventuality occur, the aggrieved parties
will not be without adequate remedy in law.
5. The DECREE is not violative of the ex post facto principle. An ex post facto law
is, among other categories, one which "alters the legal rules of evidence, and

authorizes conviction upon less or different testimony than the law required at the
time of the commission of the offense." It is petitioner's position that Section 15 of
the DECREE in providing that:
All videogram establishments in the Philippines are hereby given a period of
forty-five (45) days after the effectivity of this Decree within which to
register with and secure a permit from the BOARD to engage in the
videogram business and to register with the BOARD all their inventories of
videograms, including videotapes, discs, cassettes or other technical
improvements or variations thereof, before they could be sold, leased, or
otherwise disposed of. Thereafter any videogram found in the possession of
any person engaged in the videogram business without the required proof of
registration by the BOARD, shall be prima facie evidence of violation of the
Decree, whether the possession of such videogram be for private showing
and/or public exhibition.
raises immediately a prima facie evidence of violation of the DECREE when the
required proof of registration of any videogram cannot be presented and thus
partakes of the nature of an ex post facto law.
The argument is untenable. As this Court held in the recent case of Vallarta vs.
Court of Appeals, et al. 15
... it is now well settled that "there is no constitutional objection to the
passage of a law providing that the presumption of innocence may be
overcome by a contrary presumption founded upon the experience of
human conduct, and enacting what evidence shall be sufficient to overcome
such presumption of innocence" (People vs. Mingoa 92 Phil. 856 [1953] at
858-59, citing 1 COOLEY, A TREATISE ON THE CONSTITUTIONAL
LIMITATIONS, 639-641). And the "legislature may enact that when certain
facts have been proved that they shall be prima facie evidence of the
existence of the guilt of the accused and shift the burden of proof provided
there be a rational connection between the facts proved and the ultimate
facts presumed so that the inference of the one from proof of the others is
not unreasonable and arbitrary because of lack of connection between the
two in common experience". 16
Applied to the challenged provision, there is no question that there is a rational
connection between the fact proved, which is non-registration, and the ultimate
fact presumed which is violation of the DECREE, besides the fact that the prima
facie presumption of violation of the DECREE attaches only after a forty-five-day
period counted from its effectivity and is, therefore, neither retrospective in
character.
6. We do not share petitioner's fears that the video industry is being overregulated and being eased out of existence as if it were a nuisance. Being a
relatively new industry, the need for its regulation was apparent. While the
underlying objective of the DECREE is to protect the moribund movie industry,
there is no question that public welfare is at bottom of its enactment, considering
"the unfair competition posed by rampant film piracy; the erosion of the moral
fiber of the viewing public brought about by the availability of unclassified and
unreviewed video tapes containing pornographic films and films with brutally
violent sequences; and losses in government revenues due to the drop in
theatrical attendance, not to mention the fact that the activities of video
establishments are virtually untaxed since mere payment of Mayor's permit and
municipal license fees are required to engage in business. 17

The enactment of the Decree since April 10, 1986 has not brought about the
"demise" of the video industry. On the contrary, video establishments are seen to
have proliferated in many places notwithstanding the 30% tax imposed.
In the last analysis, what petitioner basically questions is the necessity, wisdom
and expediency of the DECREE. These considerations, however, are primarily and
exclusively a matter of legislative concern.
Only congressional power or competence, not the wisdom of the action
taken, may be the basis for declaring a statute invalid. This is as it ought to
be. The principle of separation of powers has in the main wisely allocated
the respective authority of each department and confined its jurisdiction to
such a sphere. There would then be intrusion not allowable under the
Constitution if on a matter left to the discretion of a coordinate branch, the
judiciary would substitute its own. If there be adherence to the rule of law,
as there ought to be, the last offender should be courts of justice, to which
rightly litigants submit their controversy precisely to maintain unimpaired
the supremacy of legal norms and prescriptions. The attack on the validity of
the challenged provision likewise insofar as there may be objections, even if
valid and cogent on its wisdom cannot be sustained. 18
In fine, petitioner has not overcome the presumption of validity which attaches to
a challenged statute. We find no clear violation of the Constitution which would
justify us in pronouncing Presidential Decree No. 1987 as unconstitutional and
void.
WHEREFORE, the instant Petition is hereby dismissed.
No costs.
SO ORDERED.
Teehankee, (C.J.), Yap, Fernan, Narvasa, Gutierrez, Jr., Cruz, Paras, Feliciano,
Gancayco, Padilla, Bidin, Sarmiento and Cortes, JJ., concur.

11.
Lozano v. Martinez [GR L-63419, 18 December 1986]
En Banc, Yap (J): 9 concur
Facts: Batas Pambansa 22 (BP22; Bouncing Check Law) was approved on 3 April
1979. The petitions arose from cases involving prosecution of offenses under
BP22. (Florentina A. Lozano vs. RTC Judge Antonio M. Martinez [Manila, Branch
XX] in GR L-63419, Luzviminda F. Lobaton vs. RTC Executive Judge Glicerio L. Cruz
[Lemery Batangas, Branch V] in GR L-66839-42, Antonio and Susan Datuin vs.
RTC Judge Ernani C.
Pano [Quezon City, Branch LXXVIII] in GR 71654, Oscar Violago vs. RTC Judge
Ernani C. Pano [Quezon
City, Branch LXXVIII] in GR 74524-25, Elinor Abad vs. RTC Judge Nicolad A.
Gerochi Jr. [Makati, Branch

139] in GR 75122-49, Amable and Sylvia Aguiluz vs. Presiding Judge of Branch
154 of Pasig in GR 7581213, Luis M. Hojas vs. RTC Judge Senen Penaranda
[Cagayan de Oro, Branch XX] in GR 72565-67, and
People vs. RTC Judge David Nitafan [Manila, Branch 52] and Thelma Sarmiento in
GR 75789]. Lozano, Lobaton, Datuin, Violago, Abad, Aguiluz, Hojas and Sarmiento
moved seasonably to quash the informations on the ground that the acts charged
did not constitute an offense, the statute being unconstitutional. The motions
were denied by the trial courts, except in one case, which is the subject of GR
75789 (People vs. Nitafan), wherein the trial court declared the law
unconstitutional and dismissed the case. The parties adversely affected have
come to the Supreme Court for relief.
Issue: Whether BP 22 is a valid legislative act.
Held: Yes. It is within the authority of the legislature to enact such a law in the
exercise of the police power. It is within the prerogative of the lawmaking body to
proscribe certain acts deemed pernicious and inimical to public welfare. Acts
mala in se are not the only acts which the law can punish. An act may not be
considered by society as inherently wrong, hence, not malum in se, but because
of the harm that it inflicts on the community, it can be outlawed and criminally
punished as malum prohibitum. BP 22 is aimed at putting a stop to or curbing the
practice of issuing checks that are worthless, i.e. checks that end up being
rejected or dishonored for payment. The thrust of the law is to prohibit, under
pain of penal sanctions, the making of worthless checks and putting them in
circulation. The law punishes the act not as an offense against property, but an
offense against public order. It is not the non-payment of an obligation which the
law punishes, nor is it intended or designed to coerce a debtor to pay his debt.
Further, a statute is presumed to be valid. Every presumption must be indulged in
favor of its constitutionality. Where it is clear that the legislature has overstepped
the limits of its authority under the constitution, the Court should not hesitate to
wield the axe and let it fall heavily on the offending statute.

12.
Republic of the Philippines
SUPREME COURT
Baguio City
EN BANC

G.R. No. 132922 April 21, 1998

TELECOMMUNICATIONS AND BROADCAST ATTORNEYS OF THE
PHILIPPINES, INC. and GMA NETWORK, INC., petitioners,
vs.
THE COMMISSION ON ELECTIONS, respondent.

MENDOZA, J.:
In Osmea v. COMELEC, G.R. No. 132231, decided March 31, 1998, 1 we upheld
the validity of 11(b) of R.A. No. 6646 which prohibits the sale or donation of print
space or air time for political ads, except to the Commission on Elections under
90, of B.P. No. 881, the Omnibus Election Code, with respect to print media, and
92, with respect to broadcast media. In the present case, we consider the validity
of 92 of B.P. Blg. No. 881 against claims that the requirement that radio and
television time be given free takes property without due process of law; that it
violates the eminent domain clause of the Constitution which provides for the
payment of just compensation; that it denies broadcast media the equal
protection of the laws; and that, in any event, it violates the terms of the franchise
of petitioner GMA Network, Inc.
Petitioner Telecommunications and Broadcast Attorneys of the Philippines, Inc. is
an organization of lawyers of radio and television broadcasting companies. They
are suing as citizens, taxpayers, and registered voters. The other petitioner, GMA
Network, Inc., operates radio and television broadcasting stations throughout the
Philippines under a franchise granted by Congress.
Petitioners challenge the validity of 92 on the ground (1) that it takes property
without due process of law and without just compensation; (2) that it denies radio
and television broadcast companies the equal protection of the laws; and (3) that
it is in excess of the power given to the COMELEC to supervise or regulate the
operation of media of communication or information during the period of election.
The Question of Standing
At the threshold of this suit is the question of standing of petitioner
Telecommunications and Broadcast Attorneys of the Philippines, Inc. (TELEBAP).
As already noted, its members assert an interest as lawyers of radio and
television broadcasting companies and as citizens, taxpayers, and registered
voters.
In those cases 2 in which citizens were authorized to sue, this Court upheld their
standing in view of the "transcendental importance" of the constitutional question
raised which justified the granting of relief. In contrast, in the case at bar, as will
presently be shown, petitioner's substantive claim is without merit. To the extent,
therefore, that a party's standing is determined by the substantive merit of his
case or preliminary estimate thereof, petitioner TELEBAP must be held to be
without standing. Indeed, a citizen will be allowed to raise a constitutional
question only when he can show that he has personally suffered some actual or
threatened injury as a result of the allegedly illegal conduct of the government;
the injury fairly is fairly traceable to the challenged action; and the injury is likely
to be redressed by a favorable action. 3 Members of petitioner have not shown
that they have suffered harm as a result of the operation of 92 of B.P. Blg. 881.
Nor do members of petitioner TELEBAP have an interest as registered voters since
this case does not concern their right of suffrage. Their interest in 92 of B.P. Blg.
881 should be precisely in upholding its validity.
Much less do they have an interest as taxpayers since this case does not involve
the exercise by Congress of its taxing or spending power. 4 A party suing as a
taxpayer must specifically show that he has a sufficient interest in preventing the
illegal expenditure of money raised by taxation and that he will sustain a direct
injury as a result of the enforcement of the questioned statute.

Nor indeed as a corporate entity does TELEBAP have standing to assert the rights
of radio and television broadcasting companies. Standing jus tertii will be
recognized only if it can be shown that the party suing has some substantial
relation to the third party, or that the third party cannot assert his constitutional
right, or that the eight of the third party will be diluted unless the party in court is
allowed to espouse the third party's constitutional claim. None of these
circumstances is here present. The mere fact that TELEBAP is composed of
lawyers in the broadcast industry does not entitle them to bring this suit in their
name as representatives of the affected companies.
Nevertheless, we have decided to take this case since the other petitioner, GMA
Network, Inc., appears to have the requisite standing to bring this constitutional
challenge. Petitioner operates radio and television broadcast stations in the
Philippines affected by the enforcement of 92 of B.P. Blg. 881 requiring radio and
television broadcast companies to provide free air time to the COMELEC for the
use of candidates for campaign and other political purposes.
Petitioner claims that it suffered losses running to several million pesos in
providing COMELEC Time in connection with the 1992 presidential election and
the 1995 senatorial election and that it stands to suffer even more should it be
required to do so again this year. Petitioner's allegation that it will suffer losses
again because it is required to provide free air time is sufficient to give it standing
to question the validity of 92. 5
Airing of COMELEC Time, a
Reasonable Condition for
Grant of Petitioner's
Franchise
As pointed out in our decision in Osmea v. COMELEC, 11(b) of R.A. No. 6646 and
90 and 92 of the B.P. Blg. 881 are part and parcel of a regulatory scheme
designed to equalize the opportunity of candidates in an election in regard to the
use of mass media for political campaigns. These statutory provisions state in
relevant parts:
R.A. No. 6646
Sec. 11. Prohibited Forms of Election Propaganda. In addition to the forms
of election propaganda prohibited under Section 85 of Batas Pambansa Blg.
881, it shall be unlawful:
xxx xxx xxx
(b) for any newspapers, radio broadcasting or television station, or other
mass media, or any person making use of the mass media to sell or to give
free of charge print space or air time for campaign or other political
purposes except to the Commission as provided under Section 90 and 92 of
Batas Pambansa Blg. 881. Any mass media columnist, commentator,
announcer or personality who is a candidate for any elective public office
shall take a leave of absence from his work as such during the campaign
period.
B.P. Blg. 881, (Omnibus Election Code)

Sec. 90. Comelec space. The Commission shall procure space in at least
one newspaper of general circulation in every province or city; Provided,
however, That in the absence of said newspaper, publication shall be done in
any other magazine or periodical in said province or city, which shall be
known as "Comelec Space" wherein candidates can announce their
candidacy. Said space shall be allocated, free of charge, equally and
impartially by the Commission among all candidates within the area in which
the newspaper is circulated. (Sec. 45, 1978 EC).
Sec. 92. Comelec time. The commission shall procure radio and television
time to be known as "Comelec Time" which shall be allocated equally and
impartially among the candidates within the area of coverage of all radio
and television stations. For this purpose, the franchise of all radio
broadcasting and television stations are hereby amended so as to provide
radio or television time, free of charge, during the period of the campaign.
(Sec. 46, 1978 EC)
Thus, the law prohibits mass media from selling or donating print space and air
time to the candidates and requires the COMELEC instead to procure print space
and air time for allocation to the candidates. It will be noted that while 90 of B.P.
Blg. 881 requires the COMELEC to procure print space which, as we have held,
should be paid for, 92 states that air time shall be procured by the COMELEC free
of charge.
Petitioners contend that 92 of BP Blg. 881 violates the due process clause 6 and
the eminent domain provision 7 of the Constitution by taking air time from radio
and television broadcasting stations without payment of just compensation.
Petitioners claim that the primary source of revenue of the radio and television
stations is the sale of air time to advertisers and that to require these stations to
provide free air time is to authorize a taking which is not "a de minimis temporary
limitation or restraint upon the use of private property." According to petitioners,
in 1992, the GMA Network, Inc. lost P22,498,560.00 in providing free air time of
one (1) hour every morning from Mondays to Fridays and one (1) hour on
Tuesdays and Thursday from 7:00 to 8:00 p.m. (prime time) and, in this year's
elections, it stands to lose P58,980,850.00 in view of COMELEC'S requirement that
radio and television stations provide at least 30 minutes of prime time daily for
the COMELEC Time. 8
Petitioners' argument is without merit, All broadcasting, whether by radio or by
television stations, is licensed by the government. Airwave frequencies have to be
allocated as there are more individuals who want to broadcast than there are
frequencies to assign. 9 A franchise is thus a privilege subject, among other things,
to amended by Congress in accordance with the constitutional provision that "any
such franchise or right granted . . . shall be subject to amendment, alteration or
repeal by the Congress when the common good so requires." 10
The idea that broadcast stations may be required to provide COMELEC Time free
of charge is not new. It goes back to the Election Code of 1971 (R.A. No. 6388),
which provided:
Sec. 49. Regulation of election propaganda through mass media. (a) The
franchise of all radio broadcasting and television stations are hereby
amended so as to require each such station to furnish free of charge, upon
request of the Commission [on Elections], during the period of sixty days
before the election not more than fifteen minutes of prime time once a week
which shall be known as "Comelec Time" and which shall be used exclusively
by the Commission to disseminate vital election information. Said "Comelec

Time" shall be considered as part of the public service time said stations are
required to furnish the Government for the dissemination of public
information and education under their respective franchises or permits.
The provision was carried over with slight modification by the 1978 Election Code
(P.D. No. 1296), which provided:
Sec. 46. COMELEC Time. The Commission [on Elections] shall procure
radio and television time to be known as "COMELEC Time" which shall be
allocated equally and impartially among the candidates within the area of
coverage of said radio and television stations. For this purpose, the
franchises of all radio broadcasting and television stations are hereby
amended so as to require such stations to furnish the Commission radio or
television time, free of charge, during the period of the campaign, at least
once but not oftener than every other day.
Substantially the same provision is now embodied in 92 of B.P. Blg. 881.
Indeed, provisions for COMELEC Tima have been made by amendment of the
franchises of radio and television broadcast stations and, until the present case
was brought, such provisions had not been thought of as taking property without
just compensation. Art. XII, 11 of the Constitution authorizes the amendment of
franchises for "the common good." What better measure can be conceived for the
common good than one for free air time for the benefit not only of candidates but
even more of the public, particularly the voters, so that they will be fully informed
of the issues in an election? "[I]t is the right of the viewers and listeners, not the
right of the broadcasters, which is paramount." 11
Nor indeed can there be any constitutional objection to the requirement that
broadcast stations give free air time. Even in the United States, there are
responsible scholars who believe that government controls on broadcast media
can constitutionally be instituted to ensure diversity of views and attention to
public affairs to further the system of free expression. For this purpose, broadcast
stations may be required to give free air time to candidates in an election. 12 Thus,
Professor Cass R. Sunstein of the University of Chicago Law School, in urging
reforms in regulations affecting the broadcast industry, writes:
Elections. We could do a lot to improve coverage of electoral campaigns.
Most important, government should ensure free media time for candidates.
Almost all European nations make such provisions; the United States does
not. Perhaps government should pay for such time on its own. Perhaps
broadcasters should have to offer it as a condition for receiving a
license. Perhaps a commitment to provide free time would count in favor of
the grant of a license in the first instance. Steps of this sort would
simultaneously promote attention to public affairs and greater diversity of
view. They would also help overcome the distorting effects of "soundbites"
and the corrosive financial pressures faced by candidates in seeking time on
the media. 13
In truth, radio and television broadcasting companies, which are given franchises,
do not own the airwaves and frequencies through which they transmit broadcast
signals and images. They are merely given the temporary privilege of using them.
Since a franchise is a mere privilege, the exercise of the privilege may reasonably
be burdened with the performance by the grantee of some form of public service.
Thus, in De Villata v. Stanley, 14 a regulation requiring interisland vessels licensed
to engage in the interisland trade to carry mail and, for this purpose, to give
advance notice to postal authorities of date and hour of sailings of vessels and of

changes of sailing hours to enable them to tender mail for transportation at the
last practicable hour prior to the vessel's departure, was held to be a reasonable
condition for the state grant of license. Although the question of compensation for
the carriage of mail was not in issue, the Court strongly implied that such service
could be without compensation, as in fact under Spanish sovereignty the mail was
carried free. 15
In Philippine Long Distance Telephone Company v. NTC, 16 the Court ordered the
PLDT to allow the interconnection of its domestic telephone system with the
international gateway facility of Eastern Telecom. The Court cited (1) the
provisions of the legislative franchise allowing such interconnection; (2) the
absence of any physical, technical, or economic basis for restricting the linking up
of two separate telephone systems; and (3) the possibility of increase in the
volume of international traffic and more efficient service, at more moderate cost,
as a result of interconnection.
Similarly, in the earlier case of PLDT v. NTC, 17 it was held:
Such regulation of the use and ownership of telecommunications systems is
in the exercise of the plenary police power of the State for the promotion of
the general welfare. The 1987 Constitution recognizes the existence of that
power when it provides:
Sec. 6. The use of property bears a social function, and all
economic agents shall contribute to the common good.
Individuals and private groups, including corporations,
cooperatives, and similar collective organizations, shall have the
right to own, establish, and operate economic enterprises,
subject to the duty of the State to promote distributive justice
and to intervene when the common good so demands (Article
XII).
The interconnection which has been required of PLDT is a form of
"intervention" with property rights dictated by "the objective of government
to promote the rapid expansion of telecommunications services in all areas
of the Philippines, . . . to maximize the use of telecommunications facilities
available, . . . in recognition of the vital role of communications in nation
building . . . and to ensure that all users of the public telecommunications
service have access to all other users of the service wherever they may be
within the Philippines at an acceptable standard of service and at reasonable
cost" (DOTC Circular No. 90-248). Undoubtedly, the encompassing objective
is the common good. The NTC, as the regulatory agency of the State, merely
exercised its delegated authority to regulate the use of telecommunications
networks when it decreed interconnection.
In the granting of the privilege to operate broadcast stations and thereafter
supervising radio and television stations, the state spends considerable public
funds in licensing and supervising such stations. 18 It would be strange if it cannot
even require the licensees to render public service by giving free air time.
Considerable effort is made in the dissent of Mr. Justice Panganiban to show that
the production of television programs involves large expenditure and requires the
use of equipment for which huge investments have to be made. The dissent cites
the claim of GMA Network that the grant of free air time to the COMELEC for the
duration of the 1998 campaign period would cost the company P52,380,000,
representing revenue it would otherwise earn if the air time were sold to

advertisers, and the amount of P6,600,850, representing the cost of producing a

program for the COMELEC Time, or the total amount of P58,980,850.
The claim that petitioner would be losing P52,380,000 in unrealized revenue from
advertising is based on the assumption that air time is "finished product" which, it
is said, become the property of the company, like oil produced from refining or
similar natural resources after undergoing a process for their production. But air
time is not owned by broadcast companies. As held in Red Lion Broadcasting
Co. v. F.C.C., 19 which upheld the right of a party personally attacked to reply,
"licenses to broadcast do not confer ownership of designated frequencies, but
only the temporary privilege of using them." Consequently, "a license permits
broadcasting, but the license has no constitutional right to be the one who holds
the license or to monopolize a radio frequency to the exclusion of his fellow
citizens. There is nothing in the First Amendment which prevents the Government
from requiring a licensee to share his frequency with others and to conduct
himself as a proxy or fiduciary with obligations to present those views and voices
which are representative of his community and which would otherwise, by
necessity, be barred from the airwaves." 20 As radio and television broadcast
stations do not own the airwaves, no private property is taken by the requirement
that they provide air time to the COMELEC.
Justice Panganiban's dissent quotes from Tolentino on the Civil Code which says
that "the air lanes themselves 'are not property because they cannot be
appropriated for the benefit of any individual.'" (p. 5) That means neither the
State nor the stations own the air lanes. Yet the dissent also says that "The
franchise holders can recover their huge investments only by selling air time to
advertisers." (p. 13) If air lanes cannot be appropriated, how can they be used to
produce air time which the franchise holders can sell to recover their investment?
There is a contradiction here.
As to the additional amount of P6,600,850, it is claimed that this is the cost of
producing a program and it is for such items as "sets and props," "video tapes,"
"miscellaneous (other rental, supplies, transportation, etc.)," and "technical
facilities (technical crew such as director and cameraman as well as 'on air
plugs')." There is no basis for this claim. Expenses for these items will be for the
account of the candidates. COMELEC Resolution No. 2983, 6(d) specifically
provides in this connection:
(d) Additional services such as tape-recording or video-taping of programs,
the preparation of visual aids, terms and condition thereof, and
consideration to be paid therefor may be arranged by the candidates with
the radio/television station concerned. However, no radio/television station
shall make any discrimination among candidates relative to charges, terms,
practices or facilities for in connection with the services rendered.
It is unfortunate that in the effort to show that there is taking of private property
worth millions of pesos, the unsubstantiated charge is made that by its decision
the Court permits the "grand larceny of precious time," and allows itself to
become "the people's unwitting oppressor." The charge is really unfortunate.
In Jackson v.Rosenbaun, 21 Justice Holmes was so incensed by the resistance of
property owners to the erection of party walls that he was led to say in his original
draft, "a statute, which embodies the community's understanding of the reciprocal
rights and duties of neighboring landowners, does not need to invoke thepenalty
larceny of the police power in its justification." Holmes's brethren corrected his
taste, and Holmes had to amend the passage so that in the end it spoke only of
invoking "the police power." 22 Justice Holmes spoke of the "petty larceny" of the

police power. Now we are being told of the "grand larceny [by means of the police
power] of precious air time."
Giving Free Air Time a Duty
Assumed by Petitioner
Petitioners claim that 92 is an invalid amendment of R.A. No. 7252 which granted
GMA Network, Inc. a franchise for the operation of radio and television
broadcasting stations. They argue that although 5 of R.A. No. 7252 gives the
government the power to temporarily use and operate the stations of petitioner
GMA Network or to authorize such use and operation, the exercise of this right
must be compensated.
The cited provision of. R.A. No. 7252 states:
Sec. 5. Right of Government. A special right is hereby reserved to the
President of the Philippines, in times of rebellion, public peril, calamity,
emergency, disaster or disturbance of peace and order, to temporarily take
over and operate the stations of the grantee, to temporarily suspend the
operation of any station in the interest of public safety, security and public
welfare, or to authorize the temporary use and operation thereof by any
agency of the Government, upon due compensation to the grantee, for the
use of said stations during the period when they shall be so operated.
The basic flaw in petitioner's argument is that it assumes that the provision for
COMELEC Time constitutes the use and operation of the stations of the GMA
Network, Inc., This is not so. Under 92 of B.P. Blg. 881, the COMELEC does not
take over the operation of radio and television stations but only the allocation of
air time to the candidates for the purpose of ensuring, among other things, equal
opportunity, time, and the right to reply as mandated by the Constitution. 23
Indeed, it is wrong to claim an amendment of petitioner's franchise for the reason
that B.P. Blg. 881, which is said to have amended R.A. No. 7252, actually
antedated it. 24 The provision of 92 of B.P. Blg. 881 must be deemed instead to be
incorporated in R.A. No. 7252. And, indeed, 4 of the latter statute does.
For the fact is that the duty imposed on the GMA Network, Inc. by its franchise to
render "adequate public service time" implements 92 of B.P. Blg. 881.
Undoubtedly, its purpose is to enable the government to communicate with the
people on matters of public interest. Thus, R.A. No. 7252 provides:
Sec. 4. Responsibility to the Public. The grantee shall provide adequate
public service time to enable the Government, through the said
broadcasting stations, to reach the population on important public issues;
provide at all times sound and balanced programming; promote public
participation such as in community programming; assist in the functions of
public information and education; conform to the ethics of honest enterprise;
and not use its station for the broadcasting of obscene and indecent
language, speech, act or scene, or for the dissemination of deliberately false
information or willful misrepresentation, or to the detriment of the public
interest, or to incite, encourage, or assist in subversive or treasonable acts.
(Emphasis added).
It is noteworthy that 40 of R.A. No. 6388, from which 92 of B.P. Blg. 881 was
taken, expressly provided that the COMELEC Time should "be considered as part
of the public service time said stations are required to furnish the Government for

the dissemination of public information and education under their respective

franchises or permits." There is no reason to suppose that 92 of B.P. Blg. 881
considers the COMELEC Time therein provided to be otherwise than as a public
service which petitioner is required to render under 4 of its charter (R.A. No.
7252). In sum, B.P. Blg. 881, 92 is not an invalid amendment of petitioner's
franchise but the enforcement of a duty voluntarily assumed by petitioner in
accepting a public grant of privilege.
Thus far, we have confined the discussion to the provision of 92 of B.P. Blg. 881
for free air time without taking into account COMELEC Resolution No. 2983-A, 2
of which states:
Sec. 2. Grant of "Comelec Time." Every radio broadcasting and television
station operating under franchise shall grant the Commission, upon
payment of just compensation, at least thirty (30) minutes of prime time
daily, to be known as "Comelec Time", effective February 10, 1998 for
candidates for President, Vice-President and Senators, and effective March
27, 1998, for candidates for local elective offices, until May 9, 1998.
(Emphasis added).
This is because the amendment providing for the payment of "just compensation"
is invalid, being in contravention of 92 of B.P. Blg. 881 that radio and television
time given during the period of the campaign shall be "free of charge." Indeed,
Resolution No. 2983 originally provided that the time allocated shall be "free of
charge," just as 92 requires such time to be given "free of charge." The
amendment appears to be a reaction to petitioner's claim in this case that the
original provision was unconstitutional because it allegedly authorized the taking
of property without just compensation.
The Solicitor General, relying on the amendment, claims that there should be no
more dispute because the payment of compensation is now provided for. It is
basic, however, that an administrative agency cannot, in the exercise of
lawmaking, amend a statute of Congress. Since 2 of Resolution No. 2983-A is
invalid, it cannot be invoked by the parties.
Law Allows Flextime for Programming
by Stations, Not Confiscation of
Air Time by COMELEC
It is claimed that there is no standard in the law to guide the COMELEC in
procuring free air time and that "theoretically the COMELEC can demand all of the
air time of such stations." 25 Petitioners do not claim that COMELEC Resolution No.
2983-A arbitrarily sequesters radio and television time. What they claim is that
because of the breadth of the statutory language, the provision in question is
susceptible of "unbridled, arbitrary and oppressive exercise." 26
The contention has no basis. For one, the COMELEC is required to procure free air
time for candidates "within the area of coverage" of a particular radio or television
broadcaster so that it cannot, for example, procure such time for candidates
outside that area. At what time of the day and how much time the COMELEC may
procure will have to be determined by it in relation to the overall objective of
informing the public about the candidates, their qualifications and their programs
of government. As stated in Osmea v. COMELEC, the COMELEC Time provided for
in 92, as well as the COMELEC Space provided for in 90, is in lieu of paid ads
which candidates are prohibited to have under 11(b) of R.A. No. 6646.

Accordingly, this objective must be kept in mind in determining the details of the
COMELEC Time as well as those of the COMELEC Space.
There would indeed be objection to the grant of power to the COMELEC if 92
were so detailed as to leave no room for accommodation of the demands of radio
and television programming. For were that the case, there could be an intrusion
into the editorial prerogatives of radio and television stations.
Differential Treatment of
Broadcast Media Justified
Petitioners complain that B.P. Blg. 881, 92 singles out radio and television
stations to provide free air time. They contend that newspapers and magazines
are not similarly required as, in fact, in Philippine Press Institute v.COMELEC, 27 we
upheld their right to the payment of just compensation for the print space they
may provide under 90.
The argument will not bear analysis. It rests on the fallacy that broadcast media
are entitled to the same treatment under the free speech guarantee of the
Constitution as the print media. There are important differences in the
characteristics of the two media, however, which justify their differential
treatment for free speech purposes. Because of the physical limitations of the
broadcast spectrum, the government must, of necessity, allocate broadcast
frequencies to those wishing to use them. There is no similar justification for
government allocation and regulation of the print media. 28
In the allocation of limited resources, relevant conditions may validly be imposed
on the grantees or licensees. The reason for this is that, as already noted, the
government spends public funds for the allocation and regulation of the broadcast
industry, which it does not do in the case of the print media. To require the radio
and television broadcast industry to provide free air time for the COMELEC Time is
a fair exchange for what the industry gets.
From another point of view, this Court has also held that because of the unique
and pervasive influence of the broadcast media, "[n]ecessarily . . . the freedom of
television and radio broadcasting is somewhat lesser in scope than the freedom
accorded to newspaper and print media." 29
The broadcast media have also established a uniquely pervasive presence in the
lives of all Filipinos. Newspapers and current books are found only in metropolitan
areas and in the poblaciones of municipalities accessible to fast and regular
transportation. Even here, there are low income masses who find the cost of
books, newspapers, and magazines beyond their humble means. Basic needs like
food and shelter perforce enjoy high priorities.
On the other hand, the transistor radio is found everywhere. The television
set is also becoming universal. Their message may be simultaneously
received by a national or regional audience of listeners including the
indifferent or unwilling who happen to be within reach of a blaring radio or
television set. The materials broadcast over the airwaves reach every person
of every age, persons of varying susceptibilities to persuasion, persons of
different I.Q.s and mental capabilities, persons whose reactions to
inflammatory or offensive speech would he difficult to monitor or predict.
The impact of the vibrant speech is forceful and immediate. Unlike readers
of the printed work, the radio audience has lesser opportunity to cogitate,
analyze, and reject the utterance. 30

Petitioners' assertion therefore that 92 of B.P. Blg. 881 denies them the equal
protection of the law has no basis. In addition, their plea that 92 (free air time)
and 11(b) of R.A. No. 6646 (ban on paid political ads) should be invalidated would
pave the way for a return to the old regime where moneyed candidates could
monopolize media advertising to the disadvantage of candidates with less
resources. That is what Congress tried to reform in 1987 with the enactment of
R.A. No. 6646. We are not free to set aside the judgment of Congress, especially in
light of the recent failure of interested parties to have the law repealed or at least
modified.
Requirement of COMELEC Time, a
Reasonable Exercise of the
State's Power to Regulate
Use of Franchises
Finally, it is argued that the power to supervise or regulate given to the COMELEC
under Art. IX-C, 4 of the Constitution does not include the power to prohibit. In
the first place, what the COMELEC is authorized to supervise or regulate by Art. IXC, 4 of the Constitution, 31 among other things, is the use by media of information
of their franchises or permits, while what Congress (not the COMELEC) prohibits is
the sale or donation of print space or air time for political ads. In other words, the
object of supervision or regulation is different from the object of the prohibition. It
is another fallacy for petitioners to contend that the power to regulate does not
include the power to prohibit. This may have force if the object of the power were
the same.
In the second place, the prohibition in 11(b) of R.A. No. 6646 is only half of the
regulatory provision in the statute. The other half is the mandate to the COMELEC
to procure print space and air time for allocation to candidates. As we said
in Osmea v. COMELEC:
The term political "ad ban" when used to describe 11(b) of R.A. No. 6646, is
misleading, for even as 11(b) prohibits the sale or donation of print space
and air time to political candidates, it mandates the COMELEC to procure
and itself allocate to the candidates space and time in the media. There is
no suppression of political ads but only a regulation of the time and manner
of advertising.
xxx xxx xxx
. . . What is involved here is simply regulation of this nature. Instead of
leaving candidates to advertise freely in the mass media, the law provides
for allocation, by the COMELEC of print space and air time to give all
candidates equal time and space for the purpose of ensuring "free, orderly,
honest, peaceful, and credible elections."
With the prohibition on media advertising by candidates themselves, the
COMELEC Time and COMELEC Space are about the only means through which
candidates can advertise their qualifications and programs of government. More
than merely depriving their qualifications and programs of government. More than
merely depriving candidates of time for their ads, the failure of broadcast stations
to provide air time unless paid by the government would clearly deprive the
people of their right to know. Art III, 7 of the Constitution provides that "the right
of the people to information on matters of public concern shall be recognized,"

while Art. XII, 6 states that "the use of property bears a social function [and] the
right to own, establish, and operate economic enterprises [is] subject to the duty
of the State to promote distributive justice and to intervene when the common
good so demands."
To affirm the validity of 92 of B.P. Blg. 881 is to hold public broadcasters to their
obligation to see to it that the variety and vigor of public debate on issues in an
election is maintained. For while broadcast media are not mere common carriers
but entities with free speech rights, they are also public trustees charged with the
duty of ensuring that the people have access to the diversity of views on political
issues. This right of the people is paramount to the autonomy of broadcast media.
To affirm the validity of 92, therefore, is likewise to uphold the people's right to
information on matters of public concern. The use of property bears a social
function and is subject to the state's duty to intervene for the common good.
Broadcast media can find their just and highest reward in the fact that whatever
altruistic service they may render in connection with the holding of elections is for
that common good.
For the foregoing reasons, the petition is dismissed.
SO ORDERED.
Narvasa, C.J., Regalado, Davide, Jr., Bellosillo, Melo, Puno, Kapunan, Martinez and
Quisumbing, JJ., concur.

Separate Opinions

VITUG, J., separate opinion;

I assent in most part to the well-considered opinion written by Mr. Justice Vicente
V. Mendoza in his ponencia, particularly, in holding that petitioner TELEBAP
lacks locus standi in filing the instant petition and in declaring that Section 92 of
Batas Pambansa Blg. 881 is a legitimate exercise of police power of the State.
The grant of franchise to broadcast media is a privilege burdened with
responsibilities. While it is, primordially, a business enterprise, it nevertheless,
also addresses in many ways certain imperatives of public service. In Stone
vs. Mississippi (101, U.S. 814, cited in Cruz, Constitutional Law, 1995 ed., p. 40.),
a case involving a franchise to sell lotteries which petitioner claims to be a
contract which may not be impaired, the United States Supreme Court opined:
. . . (T)he Legislature cannot bargain away the police power of a State.
Irrevocable grants of property and franchises may be made if they do not
impair the supreme authority to make laws for the right government of the
State; but no Legislature can curtail the power of its successors to make
such laws as they may deem proper in matters of police. . .
In this case, the assailed law, in my view, has not failed in meeting the standards
set forth for its lawful exercise,i.e., (a) that its utilization is demanded by the
interests of the public, and (b) that the means employed are reasonably
necessary, and not unduly oppressive, for the accomplishment of the purposes
and objectives of the law.

I cannot consider COMELEC Resolution No. 2983-A, particularly Section 2 thereof,

as being in contravention of B.P. No. 881. There is nothing in the law that prohibits
the COMELEC from itself procuring airtime, perhaps longer than that which can
reasonably be allocated, if it believes that in so opting, it does so for the public
good.
I vote to DISMISS the petition.
ROMERO, J., dissenting;
Section 92 of BP 881 constitutes taking of private property without just
compensation. The power of eminent domain is a power inherent in sovereignty
and requires no constitutional provision to give it force. It is the rightful authority
which exists in every sovereignty, to control and regulate those rights of a public
nature which pertain to its citizens in common, and to appropriate and control
individual property for the public benefit as the public safety, necessity,
convenience or welfare demand. 1 The right to appropriate private property to
public use, however, lies dormant in the state until legislative action is had,
pointing out the occasions, the modes, the conditions and agencies for its
appropriation. 2
Section 92 of BP 881 states
Sec. 92. Comelec Time The Comelec shall procure radio and television
time to be known as "Comelec Time" which shall be allocated equally and
impartially among the candidates within the area of coverage of all radio
and television stations. For this purpose, the franchise of all radio and
television stations are hereby attended so as to provide radio and television
time free of charge during the period of election campaign.
Pursuant to Section 92 of BP 881, respondent COMELEC on March 3, 1998 passed
Resolution 2983-A, the pertinent provision of which reads as follows:
Sec. 2. Grant of "Comelec Time." Every radio broadcasting and television
station operating under franchise shall grant the Commission, upon payment
of just compensation, at least thirty (30) minutes of prime time daily, to be
known as "Comelec Time," effective February 10, 1998 for candidates for
President, Vice-President and Senators, and effective March 27, 1998, for
candidates for local elective offices, until May 9, 1998.
Section 92 of BP 881, insofar as it requires radio and television stations to provide
Comelec with radio and television time free of charge is a flagrant violation of the
constitutional mandate that private property shall not be taken for public use
without just compensation. While it is inherent in the State, the sovereign right to
appropriate property has never been understood to include taking property for
public purposes without the duty and responsibility of ordering compensation to
the individual whose property has been sacrificed for the good of the community.
Hence, Section 9 Article III of the 1987 Constitution which reads "No private
property shall be taken for public use without just compensation," gives us two
limitations on the power of eminent domain: (1) the purpose of taking must be for
public use and (2) just compensation must be given to the owner of the private
property.
There is, of course, no question that the taking of the property in the case at bar
is for public use, i.e. to ensure that air time is allocated equally among the
candidates, however, there is no justification for the taking without payment of
just compensation. While Resolution No. 2983-A has provided that just

compensation shall be paid for the 30 minutes of prime time granted by the
television stations to respondent Comelec, we note that the resolution was
passed pursuant to Section 92 of BP 881 which mandates that radio and television
time be provided to respondent Comelec free of charge. Since the legislative
intent is the controlling element in determining the administrative powers, rights,
privileges and immunities granted, 3 respondent Comelec may, at any time,
despite the resolution passed, compel television and radio stations to provide it
with airtime free of charge.
Apparently, Sec. 92 of BP 881 justices such taking under the guise of police power
regulation which cannot be validly done. Police power must be distinguished from
the power of eminent domain. In the exercise of police power, there is
a restriction of property interest to promote public welfare or interest which
involves no compensable taking. When the power of eminent domain, however, is
exercised, property interest is appropriated and applied to some public purpose,
necessitating compensation therefor. Traditional distinctions between police power
and the power of eminent domain precluded application of both powers at the
same time in the same subject. 4 Hence, in the case of City of Baguio
v. NAWASA, 5 the Court held that a law requiring the transfer of all municipal
waterworks systems to NAWASA in exchange for its assets of equivalent value
involved the exercise of eminent domain because the property involved was
wholesome and intended for public use. Property condemned under the exercise
of police power, on the other hand, is noxious or intended for noxious purpose
and, consequently, is not compensable. Police power proceeds from the principle
that every holder of property, however absolute and unqualified may be his title,
holds it under the implied liability that his use of it shall not be injurious to the
equal enjoyment of others having an equal right to the enjoyment of their
property, nor injurious to the rights of the community. Rights of property, like all
other social and conventional rights, are subject to reasonable limitations in their
enjoyment as shall prevent them from being injurious, and to such reasonable
restraits 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. 6
In the case of Small Landowners of the Philippines Inc. v. Secretary of Agrarian
Reform, we found occasion to note that recent trends show a mingling of the
police power and the power of eminent domain, with the latter being used as an
implement of the former like the power of taxation. Citing the cases of Berman
v. Parker 7 andPenn Central Transportation Co. v. New York City 8 where owners of
the Grand Central Terminal who were not allowed to construct a multi-story
building to preserve a historic landmark were allowed certain compensatory rights
to mitigate the loss caused by the regulation, this Court is Small Landowners of
the Philippines, Inc. case held that measures prescribing retention limits for
landowners under the Agrarian Reform Law involved the exercise of police power
for the regulation of private property in accordance with the constitution. And,
where to carry out the regulation, it became necessary to deprive owners of
whatever lands they may own in excess of the maximum area allowed, the Court
held that there was definitely a taking under the power of eminent domain for
which payment of just compensation was imperative.
The petition before us is no different from the above-cited case. Insofar as See 92
of BP 881 read in conjunction with Sec 11(b) of RA 6646 restricts the sale or
donation of airtime by radio and television stations during the campaign period to
respondent Comelec, there is an exercise of police power for the regulation of
property in accordance with the Constitution. To the extent however that Sec 92 of
BP 881 mandates that airtime be provided free of charge to respondent Comelec
to be allocated equally among all candidates, the regulation exceeds the limits of

police power and should be recognized as a taking. In the case of Pennsylvania

Coal v. Mahon, 9 Justice Holmes laid down the limits of police power in this wise,"
The general rule is that while property may be regulated to a certain extent, if the
regulation goes too far, it will be recognized as a taking."
While the power of eminent domain often results in the appropriation of title to or
possession of property, it need not always be the case. It is a settled rule that
neither acquisition of title nor total destruction of value is essential to taking and
it is usually in cases where title remains with the private owner that inquiry should
be made to determine whether the impairment of a property is merely regulated
or amounts to a compensable taking. A regulation which deprives any person of
the profitable use of his property constitutes a taking and entitles him to
compensation unless the invasion of rights is so slight as to permit the regulation
to be justified under the police power. Similarly, a police regulation which
unreasonably restricts the right to use business property for business purposes,
amounts to taking of private property and the owner may recover therefor. 10 It is
also settled jurisprudence that acquisition of right of way easement falls within
the purview of eminent domain. 11
While there is no taking or appropriation of title to, and possession of the
expropriated property in the case at bar, there is compensable taking inasmuch
as them is a loss of the earnings for the airtime which the petitioner-intervenors
are compelled to donate. It is a loss which, to paraphrase Philippine Press Institute
v. Comelec, 12 could hardly be considered "de minimis" if we are to take into
account the monetary value of the compulsory donation measured by the current
advertising rates of the radio and television stations.
In the case of Philippine Press Institute v. Comelec, 13 we had occasion to state
that newspapers and other print media are not compelled to donate free space to
respondent Comelec inasmuch as this would be in violation of the constitutional
provision that no private property shall be taken for public use without just
compensation. We find no cogent reason why radio and television stations should
be treated considering that their operating expenses as compared to those of the
newspaper and other print media publishers involve considerably greater amount
of financial resources.
The fact that one needs a franchise from government to establish a radio and
television station while no license is needed to start a newspaper should not be
made a basis for treating broadcast media any differently from the print media in
compelling the former to "donate" airtime to respondent Comelec. While no
franchises and rights are granted except under the condition that it shall be
subject to amendment, alteration, or repeal by the Congress when the common
good so requires, 14 this provides no license for government to disregard the
cardinal rule that corporations with franchises are as much entitled to due process
and equal protection of laws guaranteed under the Constitution.
ACCORDINGLY, I vote to declare Section 92 of BP 881 insofar as it mandates that
radio and television time be provided to respondent Comelec free of charge
UNCONSTITUTIONAL.
PANGANIBAN, J., dissenting;
At issue in this case is the constitutionality of Section 92 of the Omnibus Election
Code 1 which compels all broadcast stations in the country "to provide radio and
television time, free of charge, during the period of the [election] campaigns,"
which the Commission on Elections shall allocate "equally and impartially among
the candidates . . ." Petitioners contend, and I agree, that this legal provision is

unconstitutional because it confiscates private property without due process of

law and without payment of just compensation, and denies broadcast media equal
protection of the law.
In Philippine Press Institute, Inc. (PPI) vs. Commission on Elections, 2 this Court
ruled that print media companies cannot be required to donate advertising space,
free of charge, to the Comelec for equal allocation among candidates, on the
ground that such compulsory seizure of print space is equivalent to a proscribed
taking of private property for public use without payment of just compensation. 3
The Court's majority in the present case, speaking through the distinguished Mr.
Justice Vicente V. Mendoza, holds, however, that the foregoing PPI doctrine applies
only to print media, not to broadcast (radio and TV) networks, arguing that "radio
and television broadcasting companies, which are given franchises, do not own
the airwaves and frequencies through which they transmit broadcast signals and
images. They are merely given the temporary privilege of using them. Since a
franchise is a mere privilege, the exercise of the privilege may reasonably be
burdened with the performance by the grantee of some form of public service." In
other words, the majority theorizes that the forced donation of air time to the
Comelec is a means by which the State gets compensation for the grant of the
franchise and/or the use of the air lanes.
With all due respect, I disagree. The majority is relying on a theoretical distinction
that does not make any real difference. Theory must yield to reality. I respectfully
submit the following arguments to support my dissent:
1. The State does not own the airwaves and broadcast frequencies. It merely
allocates, supervises and regulates their proper use. Thus, other than collecting
supervision or regulatory fees which it already does, it cannot exact any onerous
and unreasonable post facto burdens from the franchise holders, without due
process and just compensation. Moreover, the invocation of the "common good"
does not excuse the unbridled and clearly excessive taking of a franchisee's
property.
2. Assuming arguendo that the State owns the air lanes, the broadcasting
companies already pay rental fees to the government for their use. Hence, the
seizure of air time cannot be justified by the theory of compensation.
3. Airwaves and frequencies alone, without the radio and television owner's
humongous investments amounting to billions of pesos, cannot be utilized for
broadcasting purposes. Hence, a forced donation of broadcast time is in actual
fact a taking of such investments without due process and without payment of
just compensation.
Let me explain further each of these arguments.
I. The State Does Not Own Air Lanes:
It Merely Regulates Their Proper Use;
"Common Good" Does Not Excuse Unbridled Taking.
Significantly, the majority does not claim that the State owns the air lanes. It
merely contends that "broadcasting, whether by radio or by television stations, is
licensed by the government. Airwave frequencies have to be allocated as there
are more individuals who want to broadcast than there are frequencies to assign.
A franchise is thus a privilege subject among other thing . . . to amendment,

alteration or repeal by the Congress when the common good so requires." 4 True
enough, a "franchise started out as a 'royal privilege or [a] branch of the King's
prerogative, subsisting in the hands of a subject.'" 5
Indeed, while the Constitution expressly provides that "[a]ll lands of the public
domain, waters, mineral, coal, petroleum, and other mineral oils, all forces, all
forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna,
and other natural resources are owned by the State," it is silent as to the
ownership of the airwaves and frequencies. It is then reasonable to say that no
one owns them. Like the air we breathe and the sunshine that sustains life, the air
lanes themselves "are not property because they cannot be appropriated for the
benefit of any individual," 6 but are to be used to the best advantage of all.
Because, as mentioned earlier, there are more prospective users than
frequencies, the State in the exercise of its police power allocates,
supervises and regulates their use, so as to derive maximum benefit for the
general public. The franchise granted by the legislature to broadcasting
companies is essentially for the purpose of putting order in the use of the
airwaves by assigning to such companies their respective frequencies. The
purpose is not to grant them the privilege of using public property. For, as earlier
stated, airwaves are not owned by the government.
Accordingly, the National Telecommunications Commission (NTC) was tasked by
law to institutionalize this regulation of the air lanes. To cover the administrative
cost of supervision and regulation, the NTC levies charges, which have been
revised upwards in NTC Memorandum Circular No. 14-8-94 dated August 26, 1994.
In accordance with this Circular, Petitioner GMA Network, Inc., for the year 1996,
paid the NTC P2,880,591 of which P2,501,776.30 was NTC "supervision and
regulation fee," as borne out by its Audited Consolidated Financial Statements for
said year, on file with the Securities and Exchange Commission. In short, for its
work of allocation, supervision and regulation, the government is adequately
compensated by the broadcast media through the payment of fees unilaterally set
by the former.
Franchisee's Property Cannot
Be Taken Without Just Compensation
In stamping unbridled donations with its imprimatur, the majority overlooks the
twofold nature and purpose of a franchise: other than serving the public benefit
which is subject to government regulation, it must also be to the franchise
holder's advantage. Once granted, a franchise (not the air lanes) together with
concomitant private rights, becomes property of the grantee. 7 It is regarded by
law precisely as other property and, as any other property, it is safeguarded by
the Constitution from arbitrary revocation or impairment. 8 The rights under a
franchise can be neither taken nor curtailed for public use or purpose, even by the
government as the grantor, without payment of just compensation 9 as
guaranteed under our fundamental law. 10 The fact that the franchise relates to
public use or purpose does not entitle the state to abrogate or impair its use
without just compensation. 11
The majority further claims that, constitutionally, 12 franchises are always subject
to alteration by Congress, "when the common good so requires." The question
then boils down to this: Does Section 92 of the Omnibus Election Code constitute
a franchise modification for the "common good," or an "unlawful taking of private
property"? To answer this question, I go back to Philippine Press Institute,
Inc. vs. Commission on Elections, where a unanimous Supreme Court held: 13

To compel print media companies to donate "Comelec space" of the

dimensions specified in Section 2 of Resolution No. 2772 (not less than onehalf page), amounts to "taking" of private personal property for public use or
purposes. Section 2 failed to specify the intended frequency of such
compulsory "donation:" only once during the period from 6 March 1995 (or
21 March 1995) until 12 May 1995? or everyday or once a week? or as often
as Comelec may direct during the same period? The extent of the taking or
deprivation is not insubstantial; this is not a case of a de minimistemporary
limitation or restraint upon the use of private property. The monetary value
of the compulsory "donation," measured by the advertising rates ordinarily
charged by newspaper publishers whether in cities or in non-urban areas,
may be very substantial indeed. (Emphasis in original)
"Common Good" Does Not Justify Unbridled
Taking of Franchisee's Broadcast Time
Like the questioned resolution in PPI, Section 92 contains no limit as to the
amount and recurrence of the "donation" of air time that Comelec can demand
from radio and TV stations. There are no guidelines or standards provided as to
the choice of stations, time and frequency of airing, and programs to be aired.
Theoretically, Comelec can compel the use of all the air time of a station. The fact
that Comelec has not exercised its granted power arbitrarily is immaterial
because the law, as worded, admits of unbridled exercise.
A statute is considered void for overbreadth when "it offends the
constitutional principle that a governmental purpose to control or prevent
activities constitutionally subject to state regulations may not be achieved
by means which sweep unnecessarily broadly and thereby invade the area
of protected freedoms." (Zwickler v. Koota, 19 L ed 2d 444 [1967]). In a
series of decisions this Court has held that, even though the governmental
purpose be legitimate and substantial, that purpose cannot be pursued by
means that broadly stifle fundamental personal liberties when the end can
be more narrowly achieved. The breadth of legislative abridgment must be
viewed in the light of less drastic means for achieving the same basic
purpose. 14
In a 1968 opinion, the American Supreme Court made clear that the absence
of such reasonable and definite standards in a legislation of its character is
fatal. Where, as in the case of the above paragraphs, the majority of the
Court could discern "an overbreadth that makes possible oppressive or
capricious application" of the statutory provisions, the line dividing the valid
from the constitutionally infirm has been crossed. Such provisions offend the
constitutional principle that "a governmental purpose to control or prevent
activities constitutionally subject to state regulation may not be achieved by
means which sweep unnecessarily broadly and thereby invade the area of
protected freedoms."
It is undeniable, therefore, that even though the governmental purpose be
legitimate and substantial, they cannot be pursued by means that broadly
stifle fundamental personal liberties when the end can be more narrowly
achieved. For precision of regulation is the touchstone in an area so closely
related to our most precious freedoms. 15
As a rule, a statute may be said to be vague and invalid if "it leaves law enforces
(in the case, the Comelec) unbridled discretion in carrying out its provisions and
becomes an arbitrary flexing of the government muscle." 16

Moreover, the extent of the actual taking of air time is enormous, exorbitant and
unreasonable. In their Memorandum, 17 petitioners allege (and this has not been
rebutted at all) that during the 1992 election period, GMA Network has been
compelled to donate P22,498.560 worth of advertising revenues; and for the
current election period, GMA stands to lose a staggering P58,980,850. Now,
clearly and most obviously, these amounts are not inconsequential or de minimis.
They constitute arbitrary taking on a grand scale!
American jurisprudence is replete with citations showing that "[l]egislative
regulation of public utilities must not have the effect of depriving an owner of his
property without due process of law, nor of confiscating or appropriating private
property without due process of law, nor of confiscating or appropriating private
property without just compensation, nor of limiting or prescribing irrevocably
vested rights or privileges lawfully acquired under a charter or franchise." The
power to regulate is subject to these constitutional limits. 18 Consequently, "rights
under a franchise cannot be taken or damaged for a public use without the
making of just compensation therefor." 19 To do so is clearly beyond the power of
the legislature to regulate.
II. Assuming That the State Owns Air Lanes,
Broadcast Companies Already Pay Rental Therefor.
Let me grant for the moment and for the sake of argument that the State owns
the air lanes and that, by its grant of a franchise, it should thus receive
compensation for the use of said frequencies. I say, however, that by remitting
unreasonably high "annual fees and charges," which as earlier stated amounts to
millions of pesos yearly, television stations are in effect paying rental fees for the
use (not just the regulation) of said frequencies. Except for the annual inspection
conducted by the NTC, no other significant service is performed by the
government in exchange for the enormous fees charged the stations. Evidently,
the sums collected by the NTC exceed the cost of services performed by it, and
are therefore more properly understood as rental fees for the use of the
frequencies granted them. 20
Since the use of the air frequencies is already paid for annually by the broadcast
entities, there is no basis for the government, through the Comelec, to compel
unbridled donation of the air time of said companies without due process and
without payment of just compensation.
In fact, even in the case of state-owned resources referred to earlier like oil,
minerals and coal once the license to exploit and develop them is granted to a
private corporation, the government can no longer arbitrarilyconfiscate or
appropriate them gratis under the guise of serving the common good. Crude oil,
for instance, once explored, drilled, and refined is thereafter considered the
property of the authorized explorer (or refiner) which can sell it to the public and
even to the government itself. The State simply cannot demand free gasoline for
the operation of public facilities even if they benefit the people in general. It still
has to pay compensation therefor.
III. Airwaves Useless Without Huge
Investment of Broadcast Companies
Setting up and operating a credible broadcasting network requires billions of
pesos in investments. It is precisely the broadcast licensee's use of a stategranted franchise or privilege which occasions its acquisition of private property in

the form of broadcast facilities and its production of air time. These properties are
distinct from its franchise. 21 The 1996 Audited Consolidated Balance Sheet of
Petitioner GMA, on file with the SEC, shows that its "property and equipment,"
which it uses in its broadcast function, amount to over one billion pesos or, to be
exact, P1,245,741,487. 22 This does not include the cost of producing the
programs to be broadcast, talent fees and other aspects of broadcasting. In their
Memorandum, 23 petitioners explain that the total cost for GMA to stay on the air
(for television) at present is approximately P136,100 per hour, which includes
electricity, depreciation, repairs and maintenance, technical facilities, salaries,
and so on. The point is: The franchise holders can recover their huge investments
only by selling air time to advertisers. This is their "product," their valuable
property which Section 92 forcibly takes from them in massive amounts without
payment of just compensation.
It is too simplistic to say that because the Constitution allows Congress to alter
franchises, ergo, an unbridled taking of private property may be allowed. If such
appropriation were only, to use the words of PPI vs. Comelec,de minimis or
insignificant say, one hour once or twice a month perhaps, it can be justified
by the promotion of the "common good." But a taking in the gargantuan amount
of over P58 million from Petitioner GMA for the 1998 election season alone is an
actual seizure of its private investment, and not at all a reasonable
"compensation" or "alteration" for the "common good." Certainly, this partakes of
CONFISCATION of private property.
What makes the taking of air time even more odious is its ex post facto nature.
When the broadcast companies acquired their franchises and set up their
expensive facilities, they were not informed of the immensity of the donations
they are now compelled to give.
Note should be made, too, of the fact that what Section 92 takes away is air time.
Air time is the "finished product" after a station uses its own broadcast facilities.
The frequency is lust the specific "route" or "channel" by which this medium
reaches the TV sets of the general public. Technically, therefore, the wholesale
alteration by Section 92 of all broadcast franchise would appear unrelated to the
compelled donations. While the express modification is in the franchise, what
Section 92 really does is that it takes away the end product of the facilities which
were set up through the use of the entrepreneurs' investments and the
broadcasters' work.
EPILOGUE
By way of epilogue, I must point out that even Respondent Comelec expressly
recognizes the need for just compensation. Thus, Section 2 of its Resolution No.
2983-A states that "[e]very radio broadcasting and television station operating
under franchise shall grant the Commission, upon payment of just compensation,
at least thirty (30) minutes of prime time daily to be known as 'Comelec
Time' . . ." And yet, even with such a judicious legal position taken by the very
agency tasked by the Constitution to administer elections, the majority still insists
on an arbitrary seizure of precious property produced and owned by private
enterprise.
That Petitioner GMA is a viable, even profitable, enterprise 24 is no argument for
seizing its profits. The State cannot rob the rich to feed the poor in the guise of
promoting the "common good." Truly, the end never justifies the means.
It cannot be denied that the amount and the extent of the air time demanded
from GMA is huge and exorbitant, amounting, I repeat, to over P58 million for the

1998 election season alone. If the air time required from "every radio and
television station" in the country in the magnitude stated in the aforesaid
Comelec Resolution 2983-A is added up and costed, the total would indeed be
staggering in several hundred million pesos.
Smacking of undisguised discrimination is the fact that in PPI vs. Comelec, this
Court has required payment of print media ads but, in this case, compels
broadcast stations to donate their end product on a massive scale. The simplistic
distinction given that radio and TV stations are mere grantees of government
franchises while newspaper companies are not does not justify the grand
larceny of precious air time. This is a violation not only of private property, but
also of the constitutional right to equal protection itself. The proffered distinction
between print and broadcast media is too insignificant and too flimsy to be a valid
justification for the discrimination. The print and broadcast media are equal in the
sense that both derive their revenues principally from paid ads. They should thus
be treated equally by the law in respect of such ads.
To sum up, the Bill of Rights of our Constitution expressly guarantees the following
rights:
1. No person, whether rich or poor, shall be deprived of property without due
process. 25
2. Such property shall not be taken by the government, even for the use of the
general public, without first paying just compensation to the owner. 26
3. No one, regardless of social or financial status, shall be denied equal protection
of the law. 27
The majority, however, peremptorily brushes aside all these sacred guarantees
and prefers to rely on the nebulous legal theory that broadcast stations are mere
recipients of state-granted franchises which can be altered or withdrawn anytime
or otherwise burdened with post facto elephantine yokes. By this short-circuited
rationalization, the majority blithely ignores the private entrepreneurs' billion-peso
investments and the broadcast professionals' grit and toil in transforming these
invisible franchises into merchandisable property; and conveniently forgets the
grim reality that the taking of honestly earned media assets is unbridled,
exorbitant and arbitrary. Worse, the government, 28 against which these
constitutional rights to property were in the first place written, prudently agrees to
respect them and to pay adequate compensation for their taking. But ironically,
the majority rejects the exemplary observance by the government of the people's
rights and insists on the confiscation of their private property.
I have always believed that the Supreme Court is the ever vigilant guardian of the
constitutional rights of the citizens and their ultimate protector against the
tyrannies of their own government. I am afraid that by this unfortunate Decision,
the majority, in this instance, has instead converted this honorable and majestic
Court into the people's unwitting oppressor.
WHEREFORE, I vote to GRANT the petition and to declare Section 92 of the
Omnibus Election Code UNCONSTITUTIONAL and VOID.
Purisima, J., dissents.

Separate Opinions

VITUG, J., separate opinion;

I assent in most part to the well-considered opinion written by Mr. Justice Vicente
V. Mendoza in his ponencia, particularly, in holding that petitioner TELEBAP
lacks locus standi in filing the instant petition and in declaring that Section 92 of
Batas Pambansa Blg. 881 is a legitimate exercise of police power of the State.
The grant of franchise to broadcast media is a privilege burdened with
responsibilities. While it is, primordially, a business enterprise, it nevertheless,
also addresses in many ways certain imperatives of public service. In Stone
vs. Mississippi (101, U.S. 814, cited in Cruz, Constitutional Law, 1995 ed., p. 40.),
a case involving a franchise to sell lotteries which petitioner claims to be a
contract which may not be impaired, the United States Supreme Court opined:
. . . (T)he Legislature cannot bargain away the police power of a State.
Irrevocable grants of property and franchises may be made if they do not
impair the supreme authority to make laws for the right government of the
State; but no Legislature can curtail the power of its successors to make
such laws as they may deem proper in matters of police. . .
In this case, the assailed law, in my view, has not failed in meeting the standards
set forth for its lawful exercise,i.e., (a) that its utilization is demanded by the
interests of the public, and (b) that the means employed are reasonably
necessary, and not unduly oppressive, for the accomplishment of the purposes
and objectives of the law.
I cannot consider COMELEC Resolution No. 2983-A, particularly Section 2 thereof,
as being in contravention of B.P. No. 881. There is nothing in the law that prohibits
the COMELEC from itself procuring airtime, perhaps longer than that which can
reasonably be allocated, if it believes that in so opting, it does so for the public
good.
I vote to DISMISS the petition.
ROMERO, J., dissenting;
Section 92 of BP 881 constitutes taking of private property without just
compensation. The power of eminent domain is a power inherent in sovereignty
and requires no constitutional provision to give it force. It is the rightful authority
which exists in every sovereignty, to control and regulate those rights of a public
nature which pertain to its citizens in common, and to appropriate and control
individual property for the public benefit as the public safety, necessity,
convenience or welfare demand. 1 The right to appropriate private property to
public use, however, lies dormant in the state until legislative action is had,
pointing out the occasions, the modes, the conditions and agencies for its
appropriation. 2
Section 92 of BP 881 states
Sec. 92. Comelec Time The Comelec shall procure radio and television
time to be known as "Comelec Time" which shall be allocated equally and
impartially among the candidates within the area of coverage of all radio
and television stations. For this purpose, the franchise of all radio and
television stations are hereby attended so as to provide radio and television
time free of charge during the period of election campaign.

Pursuant to Section 92 of BP 881, respondent COMELEC on March 3, 1998 passed

Resolution 2983-A, the pertinent provision of which reads as follows:
Sec. 2. Grant of "Comelec Time." Every radio broadcasting and television
station operating under franchise shall grant the Commission, upon payment
of just compensation, at least thirty (30) minutes of prime time daily, to be
known as "Comelec Time," effective February 10, 1998 for candidates for
President, Vice-President and Senators, and effective March 27, 1998, for
candidates for local elective offices, until May 9, 1998.
Section 92 of BP 881, insofar as it requires radio and television stations to provide
Comelec with radio and television time free of charge is a flagrant violation of the
constitutional mandate that private property shall not be taken for public use
without just compensation. While it is inherent in the State, the sovereign right to
appropriate property has never been understood to include taking property for
public purposes without the duty and responsibility of ordering compensation to
the individual whose property has been sacrificed for the good of the community.
Hence, Section 9 Article III of the 1987 Constitution which reads "No private
property shall be taken for public use without just compensation," gives us two
limitations on the power of eminent domain: (1) the purpose of taking must be for
public use and (2) just compensation must be given to the owner of the private
property.
There is, of course, no question that the taking of the property in the case at bar
is for public use, i.e. to ensure that air time is allocated equally among the
candidates, however, there is no justification for the taking without payment of
just compensation. While Resolution No. 2983-A has provided that just
compensation shall be paid for the 30 minutes of prime time granted by the
television stations to respondent Comelec, we note that the resolution was
passed pursuant to Section 92 of BP 881 which mandates that radio and television
time be provided to respondent Comelec free of charge. Since the legislative
intent is the controlling element in determining the administrative powers, rights,
privileges and immunities granted, 3 respondent Comelec may, at any time,
despite the resolution passed, compel television and radio stations to provide it
with airtime free of charge.
Apparently, Sec. 92 of BP 881 justices such taking under the guise of police power
regulation which cannot be validly done. Police power must be distinguished from
the power of eminent domain. In the exercise of police power, there is
a restriction of property interest to promote public welfare or interest which
involves no compensable taking. When the power of eminent domain, however, is
exercised, property interest is appropriated and applied to some public purpose,
necessitating compensation therefor. Traditional distinctions between police power
and the power of eminent domain precluded application of both powers at the
same time in the same subject. 4 Hence, in the case of City of Baguio
v. NAWASA, 5 the Court held that a law requiring the transfer of all municipal
waterworks systems to NAWASA in exchange for its assets of equivalent value
involved the exercise of eminent domain because the property involved was
wholesome and intended for public use. Property condemned under the exercise
of police power, on the other hand, is noxious or intended for noxious purpose
and, consequently, is not compensable. Police power proceeds from the principle
that every holder of property, however absolute and unqualified may be his title,
holds it under the implied liability that his use of it shall not be injurious to the
equal enjoyment of others having an equal right to the enjoyment of their
property, nor injurious to the rights of the community. Rights of property, like all
other social and conventional rights, are subject to reasonable limitations in their
enjoyment as shall prevent them from being injurious, and to such reasonable

restraits 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. 6
In the case of Small Landowners of the Philippines Inc. v. Secretary of Agrarian
Reform, we found occasion to note that recent trends show a mingling of the
police power and the power of eminent domain, with the latter being used as an
implement of the former like the power of taxation. Citing the cases of Berman
v. Parker 7 andPenn Central Transportation Co. v. New York City 8 where owners of
the Grand Central Terminal who were not allowed to construct a multi-story
building to preserve a historic landmark were allowed certain compensatory rights
to mitigate the loss caused by the regulation, this Court is Small Landowners of
the Philippines, Inc. case held that measures prescribing retention limits for
landowners under the Agrarian Reform Law involved the exercise of police power
for the regulation of private property in accordance with the constitution. And,
where to carry out the regulation, it became necessary to deprive owners of
whatever lands they may own in excess of the maximum area allowed, the Court
held that there was definitely a taking under the power of eminent domain for
which payment of just compensation was imperative.
The petition before us is no different from the above-cited case. Insofar as See 92
of BP 881 read in conjunction with Sec 11(b) of RA 6646 restricts the sale or
donation of airtime by radio and television stations during the campaign period to
respondent Comelec, there is an exercise of police power for the regulation of
property in accordance with the Constitution. To the extent however that Sec 92 of
BP 881 mandates that airtime be provided free of charge to respondent Comelec
to be allocated equally among all candidates, the regulation exceeds the limits of
police power and should be recognized as a taking. In the case of Pennsylvania
Coal v. Mahon, 9 Justice Holmes laid down the limits of police power in this wise,"
The general rule is that while property may be regulated to a certain extent, if the
regulation goes too far, it will be recognized as a taking."
While the power of eminent domain often results in the appropriation of title to or
possession of property, it need not always be the case. It is a settled rule that
neither acquisition of title nor total destruction of value is essential to taking and
it is usually in cases where title remains with the private owner that inquiry should
be made to determine whether the impairment of a property is merely regulated
or amounts to a compensable taking. A regulation which deprives any person of
the profitable use of his property constitutes a taking and entitles him to
compensation unless the invasion of rights is so slight as to permit the regulation
to be justified under the police power. Similarly, a police regulation which
unreasonably restricts the right to use business property for business purposes,
amounts to taking of private property and the owner may recover therefor. 10 It is
also settled jurisprudence that acquisition of right of way easement falls within
the purview of eminent domain. 11
While there is no taking or appropriation of title to, and possession of the
expropriated property in the case at bar, there is compensable taking inasmuch
as them is a loss of the earnings for the airtime which the petitioner-intervenors
are compelled to donate. It is a loss which, to paraphrase Philippine Press Institute
v. Comelec, 12 could hardly be considered "de minimis" if we are to take into
account the monetary value of the compulsory donation measured by the current
advertising rates of the radio and television stations.
In the case of Philippine Press Institute v. Comelec, 13 we had occasion to state
that newspapers and other print media are not compelled to donate free space to
respondent Comelec inasmuch as this would be in violation of the constitutional

provision that no private property shall be taken for public use without just
compensation. We find no cogent reason why radio and television stations should
be treated considering that their operating expenses as compared to those of the
newspaper and other print media publishers involve considerably greater amount
of financial resources.
The fact that one needs a franchise from government to establish a radio and
television station while no license is needed to start a newspaper should not be
made a basis for treating broadcast media any differently from the print media in
compelling the former to "donate" airtime to respondent Comelec. While no
franchises and rights are granted except under the condition that it shall be
subject to amendment, alteration, or repeal by the Congress when the common
good so requires, 14 this provides no license for government to disregard the
cardinal rule that corporations with franchises are as much entitled to due process
and equal protection of laws guaranteed under the Constitution.
ACCORDINGLY, I vote to declare Section 92 of BP 881 insofar as it mandates that
radio and television time be provided to respondent Comelec free of charge
UNCONSTITUTIONAL.
PANGANIBAN, J., dissenting;
At issue in this case is the constitutionality of Section 92 of the Omnibus Election
Code 1 which compels all broadcast stations in the country "to provide radio and
television time, free of charge, during the period of the [election] campaigns,"
which the Commission on Elections shall allocate "equally and impartially among
the candidates . . ." Petitioners contend, and I agree, that this legal provision is
unconstitutional because it confiscates private property without due process of
law and without payment of just compensation, and denies broadcast media equal
protection of the law.
In Philippine Press Institute, Inc. (PPI) vs. Commission on Elections, 2 this Court
ruled that print media companies cannot be required to donate advertising space,
free of charge, to the Comelec for equal allocation among candidates, on the
ground that such compulsory seizure of print space is equivalent to a proscribed
taking of private property for public use without payment of just compensation. 3
The Court's majority in the present case, speaking through the distinguished Mr.
Justice Vicente V. Mendoza, holds, however, that the foregoing PPI doctrine applies
only to print media, not to broadcast (radio and TV) networks, arguing that "radio
and television broadcasting companies, which are given franchises, do not own
the airwaves and frequencies through which they transmit broadcast signals and
images. They are merely given the temporary privilege of using them. Since a
franchise is a mere privilege, the exercise of the privilege may reasonably be
burdened with the performance by the grantee of some form of public service." In
other words, the majority theorizes that the forced donation of air time to the
Comelec is a means by which the State gets compensation for the grant of the
franchise and/or the use of the air lanes.
With all due respect, I disagree. The majority is relying on a theoretical distinction
that does not make any real difference. Theory must yield to reality. I respectfully
submit the following arguments to support my dissent:
1. The State does not own the airwaves and broadcast frequencies. It merely
allocates, supervises and regulates their proper use. Thus, other than collecting
supervision or regulatory fees which it already does, it cannot exact any onerous
and unreasonable post facto burdens from the franchise holders, without due

process and just compensation. Moreover, the invocation of the "common good"
does not excuse the unbridled and clearly excessive taking of a franchisee's
property.
2. Assuming arguendo that the State owns the air lanes, the broadcasting
companies already pay rental fees to the government for their use. Hence, the
seizure of air time cannot be justified by the theory of compensation.
3. Airwaves and frequencies alone, without the radio and television owner's
humongous investments amounting to billions of pesos, cannot be utilized for
broadcasting purposes. Hence, a forced donation of broadcast time is in actual
fact a taking of such investments without due process and without payment of
just compensation.
Let me explain further each of these arguments.
I. The State Does Not Own Air Lanes:
It Merely Regulates Their Proper Use;
"Common Good" Does Not Excuse Unbridled Taking.
Significantly, the majority does not claim that the State owns the air lanes. It
merely contends that "broadcasting, whether by radio or by television stations, is
licensed by the government. Airwave frequencies have to be allocated as there
are more individuals who want to broadcast than there are frequencies to assign.
A franchise is thus a privilege subject among other thing . . . to amendment,
alteration or repeal by the Congress when the common good so requires." 4 True
enough, a "franchise started out as a 'royal privilege or [a] branch of the King's
prerogative, subsisting in the hands of a subject.'" 5
Indeed, while the Constitution expressly provides that "[a]ll lands of the public
domain, waters, mineral, coal, petroleum, and other mineral oils, all forces, all
forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna,
and other natural resources are owned by the State," it is silent as to the
ownership of the airwaves and frequencies. It is then reasonable to say that no
one owns them. Like the air we breathe and the sunshine that sustains life, the air
lanes themselves "are not property because they cannot be appropriated for the
benefit of any individual," 6 but are to be used to the best advantage of all.
Because, as mentioned earlier, there are more prospective users than
frequencies, the State in the exercise of its police power allocates,
supervises and regulates their use, so as to derive maximum benefit for the
general public. The franchise granted by the legislature to broadcasting
companies is essentially for the purpose of putting order in the use of the
airwaves by assigning to such companies their respective frequencies. The
purpose is not to grant them the privilege of using public property. For, as earlier
stated, airwaves are not owned by the government.
Accordingly, the National Telecommunications Commission (NTC) was tasked by
law to institutionalize this regulation of the air lanes. To cover the administrative
cost of supervision and regulation, the NTC levies charges, which have been
revised upwards in NTC Memorandum Circular No. 14-8-94 dated August 26, 1994.
In accordance with this Circular, Petitioner GMA Network, Inc., for the year 1996,
paid the NTC P2,880,591 of which P2,501,776.30 was NTC "supervision and
regulation fee," as borne out by its Audited Consolidated Financial Statements for
said year, on file with the Securities and Exchange Commission. In short, for its

work of allocation, supervision and regulation, the government is adequately

compensated by the broadcast media through the payment of fees unilaterally set
by the former.
Franchisee's Property Cannot
Be Taken Without Just Compensation
In stamping unbridled donations with its imprimatur, the majority overlooks the
twofold nature and purpose of a franchise: other than serving the public benefit
which is subject to government regulation, it must also be to the franchise
holder's advantage. Once granted, a franchise (not the air lanes) together with
concomitant private rights, becomes property of the grantee. 7 It is regarded by
law precisely as other property and, as any other property, it is safeguarded by
the Constitution from arbitrary revocation or impairment. 8 The rights under a
franchise can be neither taken nor curtailed for public use or purpose, even by the
government as the grantor, without payment of just compensation 9 as
guaranteed under our fundamental law. 10 The fact that the franchise relates to
public use or purpose does not entitle the state to abrogate or impair its use
without just compensation. 11
The majority further claims that, constitutionally, 12 franchises are always subject
to alteration by Congress, "when the common good so requires." The question
then boils down to this: Does Section 92 of the Omnibus Election Code constitute
a franchise modification for the "common good," or an "unlawful taking of private
property"? To answer this question, I go back to Philippine Press Institute,
Inc. vs. Commission on Elections, where a unanimous Supreme Court held: 13
To compel print media companies to donate "Comelec space" of the
dimensions specified in Section 2 of Resolution No. 2772 (not less than onehalf page), amounts to "taking" of private personal property for public use or
purposes. Section 2 failed to specify the intended frequency of such
compulsory "donation:" only once during the period from 6 March 1995 (or
21 March 1995) until 12 May 1995? or everyday or once a week? or as often
as Comelec may direct during the same period? The extent of the taking or
deprivation is not insubstantial; this is not a case of a de minimistemporary
limitation or restraint upon the use of private property. The monetary value
of the compulsory "donation," measured by the advertising rates ordinarily
charged by newspaper publishers whether in cities or in non-urban areas,
may be very substantial indeed. (Emphasis in original)
"Common Good" Does Not Justify Unbridled
Taking of Franchisee's Broadcast Time
Like the questioned resolution in PPI, Section 92 contains no limit as to the
amount and recurrence of the "donation" of air time that Comelec can demand
from radio and TV stations. There are no guidelines or standards provided as to
the choice of stations, time and frequency of airing, and programs to be aired.
Theoretically, Comelec can compel the use of all the air time of a station. The fact
that Comelec has not exercised its granted power arbitrarily is immaterial
because the law, as worded, admits of unbridled exercise.
A statute is considered void for overbreadth when "it offends the
constitutional principle that a governmental purpose to control or prevent
activities constitutionally subject to state regulations may not be achieved
by means which sweep unnecessarily broadly and thereby invade the area

of protected freedoms." (Zwickler v. Koota, 19 L ed 2d 444 [1967]). In a

series of decisions this Court has held that, even though the governmental
purpose be legitimate and substantial, that purpose cannot be pursued by
means that broadly stifle fundamental personal liberties when the end can
be more narrowly achieved. The breadth of legislative abridgment must be
viewed in the light of less drastic means for achieving the same basic
purpose. 14
In a 1968 opinion, the American Supreme Court made clear that the absence
of such reasonable and definite standards in a legislation of its character is
fatal. Where, as in the case of the above paragraphs, the majority of the
Court could discern "an overbreadth that makes possible oppressive or
capricious application" of the statutory provisions, the line dividing the valid
from the constitutionally infirm has been crossed. Such provisions offend the
constitutional principle that "a governmental purpose to control or prevent
activities constitutionally subject to state regulation may not be achieved by
means which sweep unnecessarily broadly and thereby invade the area of
protected freedoms."
It is undeniable, therefore, that even though the governmental purpose be
legitimate and substantial, they cannot be pursued by means that broadly
stifle fundamental personal liberties when the end can be more narrowly
achieved. For precision of regulation is the touchstone in an area so closely
related to our most precious freedoms. 15
As a rule, a statute may be said to be vague and invalid if "it leaves law enforces
(in the case, the Comelec) unbridled discretion in carrying out its provisions and
becomes an arbitrary flexing of the government muscle." 16
Moreover, the extent of the actual taking of air time is enormous, exorbitant and
unreasonable. In their Memorandum, 17 petitioners allege (and this has not been
rebutted at all) that during the 1992 election period, GMA Network has been
compelled to donate P22,498.560 worth of advertising revenues; and for the
current election period, GMA stands to lose a staggering P58,980,850. Now,
clearly and most obviously, these amounts are not inconsequential or de minimis.
They constitute arbitrary taking on a grand scale!
American jurisprudence is replete with citations showing that "[l]egislative
regulation of public utilities must not have the effect of depriving an owner of his
property without due process of law, nor of confiscating or appropriating private
property without due process of law, nor of confiscating or appropriating private
property without just compensation, nor of limiting or prescribing irrevocably
vested rights or privileges lawfully acquired under a charter or franchise." The
power to regulate is subject to these constitutional limits. 18 Consequently, "rights
under a franchise cannot be taken or damaged for a public use without the
making of just compensation therefor." 19 To do so is clearly beyond the power of
the legislature to regulate.
II. Assuming That the State Owns Air Lanes,
Broadcast Companies Already Pay Rental Therefor.
Let me grant for the moment and for the sake of argument that the State owns
the air lanes and that, by its grant of a franchise, it should thus receive
compensation for the use of said frequencies. I say, however, that by remitting
unreasonably high "annual fees and charges," which as earlier stated amounts to
millions of pesos yearly, television stations are in effect paying rental fees for the

use (not just the regulation) of said frequencies. Except for the annual inspection
conducted by the NTC, no other significant service is performed by the
government in exchange for the enormous fees charged the stations. Evidently,
the sums collected by the NTC exceed the cost of services performed by it, and
are therefore more properly understood as rental fees for the use of the
frequencies granted them. 20
Since the use of the air frequencies is already paid for annually by the broadcast
entities, there is no basis for the government, through the Comelec, to compel
unbridled donation of the air time of said companies without due process and
without payment of just compensation.
In fact, even in the case of state-owned resources referred to earlier like oil,
minerals and coal once the license to exploit and develop them is granted to a
private corporation, the government can no longer arbitrarilyconfiscate or
appropriate them gratis under the guise of serving the common good. Crude oil,
for instance, once explored, drilled, and refined is thereafter considered the
property of the authorized explorer (or refiner) which can sell it to the public and
even to the government itself. The State simply cannot demand free gasoline for
the operation of public facilities even if they benefit the people in general. It still
has to pay compensation therefor.
III. Airwaves Useless Without Huge
Investment of Broadcast Companies
Setting up and operating a credible broadcasting network requires billions of
pesos in investments. It is precisely the broadcast licensee's use of a stategranted franchise or privilege which occasions its acquisition of private property in
the form of broadcast facilities and its production of air time. These properties are
distinct from its franchise. 21 The 1996 Audited Consolidated Balance Sheet of
Petitioner GMA, on file with the SEC, shows that its "property and equipment,"
which it uses in its broadcast function, amount to over one billion pesos or, to be
exact, P1,245,741,487. 22 This does not include the cost of producing the
programs to be broadcast, talent fees and other aspects of broadcasting. In their
Memorandum, 23 petitioners explain that the total cost for GMA to stay on the air
(for television) at present is approximately P136,100 per hour, which includes
electricity, depreciation, repairs and maintenance, technical facilities, salaries,
and so on. The point is: The franchise holders can recover their huge investments
only by selling air time to advertisers. This is their "product," their valuable
property which Section 92 forcibly takes from them in massive amounts without
payment of just compensation.
It is too simplistic to say that because the Constitution allows Congress to alter
franchises, ergo, an unbridled taking of private property may be allowed. If such
appropriation were only, to use the words of PPI vs. Comelec,de minimis or
insignificant say, one hour once or twice a month perhaps, it can be justified
by the promotion of the "common good." But a taking in the gargantuan amount
of over P58 million from Petitioner GMA for the 1998 election season alone is an
actual seizure of its private investment, and not at all a reasonable
"compensation" or "alteration" for the "common good." Certainly, this partakes of
CONFISCATION of private property.
What makes the taking of air time even more odious is its ex post facto nature.
When the broadcast companies acquired their franchises and set up their
expensive facilities, they were not informed of the immensity of the donations
they are now compelled to give.

Note should be made, too, of the fact that what Section 92 takes away is air time.
Air time is the "finished product" after a station uses its own broadcast facilities.
The frequency is lust the specific "route" or "channel" by which this medium
reaches the TV sets of the general public. Technically, therefore, the wholesale
alteration by Section 92 of all broadcast franchise would appear unrelated to the
compelled donations. While the express modification is in the franchise, what
Section 92 really does is that it takes away the end product of the facilities which
were set up through the use of the entrepreneurs' investments and the
broadcasters' work.
EPILOGUE
By way of epilogue, I must point out that even Respondent Comelec expressly
recognizes the need for just compensation. Thus, Section 2 of its Resolution No.
2983-A states that "[e]very radio broadcasting and television station operating
under franchise shall grant the Commission, upon payment of just compensation,
at least thirty (30) minutes of prime time daily to be known as 'Comelec
Time' . . ." And yet, even with such a judicious legal position taken by the very
agency tasked by the Constitution to administer elections, the majority still insists
on an arbitrary seizure of precious property produced and owned by private
enterprise.
That Petitioner GMA is a viable, even profitable, enterprise 24 is no argument for
seizing its profits. The State cannot rob the rich to feed the poor in the guise of
promoting the "common good." Truly, the end never justifies the means.
It cannot be denied that the amount and the extent of the air time demanded
from GMA is huge and exorbitant, amounting, I repeat, to over P58 million for the
1998 election season alone. If the air time required from "every radio and
television station" in the country in the magnitude stated in the aforesaid
Comelec Resolution 2983-A is added up and costed, the total would indeed be
staggering in several hundred million pesos.
Smacking of undisguised discrimination is the fact that in PPI vs. Comelec, this
Court has required payment of print media ads but, in this case, compels
broadcast stations to donate their end product on a massive scale. The simplistic
distinction given that radio and TV stations are mere grantees of government
franchises while newspaper companies are not does not justify the grand
larceny of precious air time. This is a violation not only of private property, but
also of the constitutional right to equal protection itself. The proffered distinction
between print and broadcast media is too insignificant and too flimsy to be a valid
justification for the discrimination. The print and broadcast media are equal in the
sense that both derive their revenues principally from paid ads. They should thus
be treated equally by the law in respect of such ads.
To sum up, the Bill of Rights of our Constitution expressly guarantees the following
rights:
1. No person, whether rich or poor, shall be deprived of property without due
process. 25
2. Such property shall not be taken by the government, even for the use of the
general public, without first paying just compensation to the owner. 26
3. No one, regardless of social or financial status, shall be denied equal protection
of the law. 27

The majority, however, peremptorily brushes aside all these sacred guarantees
and prefers to rely on the nebulous legal theory that broadcast stations are mere
recipients of state-granted franchises which can be altered or withdrawn anytime
or otherwise burdened with post facto elephantine yokes. By this short-circuited
rationalization, the majority blithely ignores the private entrepreneurs' billion-peso
investments and the broadcast professionals' grit and toil in transforming these
invisible franchises into merchandisable property; and conveniently forgets the
grim reality that the taking of honestly earned media assets is unbridled,
exorbitant and arbitrary. Worse, the government, 28 against which these
constitutional rights to property were in the first place written, prudently agrees to
respect them and to pay adequate compensation for their taking. But ironically,
the majority rejects the exemplary observance by the government of the people's
rights and insists on the confiscation of their private property.
I have always believed that the Supreme Court is the ever vigilant guardian of the
constitutional rights of the citizens and their ultimate protector against the
tyrannies of their own government. I am afraid that by this unfortunate Decision,
the majority, in this instance, has instead converted this honorable and majestic
Court into the people's unwitting oppressor.
WHEREFORE, I vote to GRANT the petition and to declare Section 92 of the
Omnibus Election Code UNCONSTITUTIONAL and VOID.
Purisima, J., dissents.
Footnotes
1 Reiterated in Kapisanan ng mga Broadkaster sa Pilipinas (Negros
Occidental Chapter) v. COMELEC, (res.), G.R. No. 132749, April 2, 1998.
2 Emergency Powers Cases [Araneta v. Dinglasan], 84 Phil. 368 (1949),
Iloilo Palay and Corn Planters Ass'n v. Feliciano, 121 Phil. 358 (1965);
Philconsa v. Gimenez, 122 Phil. 894 (1965); CLU v. Executive Secretary,
194 SCRA 317 (1991).
3 Lawyers League for a Better Philippines v. Aquino, G.R. Nos. 73748,
73972 and 73990, May 22, 1986; In re Bermudez, 145 SCRA 160
(1986); Tatad v. Garcia, Jr., 243 SCRA 436, 473 (1995) (Mendoza, J.,
concurring).
4 CONST., ART. VI, 24-25 and 29.
5 In Valmonte v. Philippine Charity Sweepstakes Office, (res), G.R. No.
78716, Sept. 22, 1987, we held that the party bringing a suit
challenging the constitutionality of a law must show "not only that the
law is invalid, but also that he has sustained or is in immediate
danger of sustaining some direct injury as a result of its enforcement,
and not merely that he suffers thereby in some indefinite way. It must
appear that the person complaining has been or is about to be denied
some right or privilege to which he is lawfully entitled or that he is
about to be subjected to some burdens or penalties by reason of the
statute complained of." (Emphasis added)
6 Art. III, 1 provides: "No person shall be deprived of life, liberty, or
property without due process of law, nor shall any person be denied
the equal protection of the laws."

7 Id., 9 provides: "Private Property shall not be taken for public use
without just compensation.
8 Memorandum for Petitioners, pp. 21-28.
9 Eastern Broadcasting Corp. (DYRE) v. Dans, Jr., 137 SCRA 628 (1985);
Red Lion Broadcasting Corp. Co. v. FCC, 395 U.S. 367, 23 L. Ed2d 371
(1969). See The Radio Act (Act No. 3846, as amended), 3(c) & (d).
10 Art, XII, 11.
11 Red Lion Broadcasting Corp. v. FCC, 395 U.S. at 390, 23 L.Ed.2d at
389.
12 E.g., OWEN M. FISS, THE IRONY OF THE FREE SPEECH 2-3 (1996)
("Surely the state can be an oppressor, but it may also be a source of
freedom . . . In some instances, instrumentalities of the state will try to
stifle free and open debate, and the First Amendment is the tried-andtrue mechanism that stops or prevents such abuse of state power. In
other instances, however, the state may have to further the robustness
of public debate . . . It may have to allocate public resources . . . to
those whose voices would not otherwise be heard in the public
square."); CASS R. SUNSTEIN, DEMOCRACY AND THE PROBLEM OF
FREE SPEECH 50-51 (1993) ("The idea that threats to speech stem
from the government is undoubtedly correct, but as usually
understood, it is far too simple. Sometimes threats come from what
seems to be the private sphere, and, much more fundamentally, these
threats could not be made without legal entitlements that enable some
private actors but not others to speak and to be heard . . .
[Government regulation] may therefore be necessary.")
13 CASS R. SUNSTEIN, id., at 85 (emphasis added).
14 32 Phil. 541 (1915).
15 The Court said:
Considerable expenditures of public money have been made in the
past and continue to be made annually for the purpose of securing the
safety of vessels plying in Philippine waters. [Here the Court
enumerated many government facilities to make the coastwise
transportation safe.] Can it be fairly contended that a regulation is
unreasonable which requires vessels licensed to engage in the
interisland trade, in whose behalf the public funds are so lavishly
expended, to hold themselves in readiness to carry the public mails
when duly tendered for transportation, and to give such reasonable
notice of their sailing hours as will insure the prompt dispatch of all
mails ready for delivery at the hours thus designated? Id., at 552.
16 241 SCRA 486 (1995).
17 190 SCRA 717, 734 (1990) (italics by the Court).
18 For example, under the Radio Act (Act No. 3846, as amended), the
government performs, inter alia, the following functions:
Sec. 3. The Secretary of Public Works and Communications is hereby
empowered, to regulate the construction or manufacture, possession,

control, sale and transfer or radio transmitters or transceivers

(combination transmitter-receiver) and the establishment, use, the
operation of all radio stations and of all form of radio communications
and transmissions within the Philippines. In addition to the above he
shall have the following specific powers and duties;
xxx xxx xxx
(c) He shall assigns call letter and assign frequencies for each station
licensed by him for each station established by virtue of a franchise
granted by the Congress of the Philippines and specify the stations to
which each of such frequencies may be used;
(d) He shall promulgate rules and regulations to prevent and eliminate
interference between stations and carry out the provisions of this Act
and the provisions of the International Radio Regulations:Provided,
however, That changes in the frequencies or in the authorized power,
or in the character of omitted signals, or in the type of the power
supply, or in the hours of operations of any licensed stations, shall not
be made without first giving the station license a hearing.
19 395 U.S. at 394, 23 L.Ed.2d at 391, quoting 47 U.S.C. 301.
20 395 U.S. at 389, 23 L.Ed.2d at 388-389.
21 260 U.S. 22, 67 L.Ed. 107 (1922).
22 260 U.S. at 31, 67 L.Ed. at 112. HOLMES-LASKI LETTERS 457,
quoted in P. FREUND, A. SUTHERLAND, M. HOWE AND B. BROWN,
CONSTITUTION LAW, CASES AND OTHER PROBLEMS 1095 (1978).
23 Art. IX-C, 4.
24 B.P. Blg. 881 took effect on Dec. 3, 1985, whereas R.A. No. 7252
took effect on March 20, 1992.
25 Memorandum for Petitioners, p. 17.
26 Ibid.
27 244 SCRA 272 (1995).
28 In the United States, because of recognition of these differences in
the characteristics of news media, it has been held that broadcast
stations may be required to give persons subjected to personal attack
during discussion of an important public issue the right to reply. (Red
Lion Broadcasting Corp. v. FCC, 395 U.S. 367, 23 L.Ed.2d 371 (1969),
but similar "right of reply" is inapplicable to newspapers. It was pointed
out that a statute providing for such right "operates as a command in
the same sense as a statute or regulation forbidding [the newspaper]
to publish specified matter . . . [It] exacts a penalty on the basis of the
content of a newspaper. The first phase of the penalty [is] exacted in
terms of the cost in printing and in taking up space that could be
devoted to other material the newspaper may have preferred to
print . . . [Faced with such a penalty] editors might well conclude that
the safe course is to avoid controversy. [Thus, the governmentenforced] right of access inescapably "dampens the vigor and limits

the variety of public debate." (Miami Herald Pub. Co. v. Tornillo, 418
U.S. 241, 4L.Ed.2d 730 (1974))
29 Eastern Broadcasting (DYRE) Corporation v. Dans, Jr., 137 SCRA at
635.
30 Id., at 635-636.
31 This provision reads: "The Commission may, during the election
period, supervise or regulate the enjoyment or utilization of all
franchises or permits for the operation of transportation and other
utilities, media of communication or information, all grants, special
privileges, or concessions granted by the Government or any
subdivision, agency, or instrumentality thereof, including any
government-owned or controlled corporation or its subsidiary. Such
supervision or regulation shall aim to ensure equal opportunity, time,
and space, and the rights to reply, including reasonable, equal rates
therefor, for public information campaigns and forums among
candidates in connection with the objective of holding free, orderly,
honest, peaceful, and credible elections."
ROMERO, J., dissenting;
1 Cooley, Thomas, II A Treatise on Constitutional Limitations, pp. 1110,
[1927].
2 Supra, at p. 1119.
3 Horack, Frank, Sutherland Statutory Construction, p. 279 [1939].
4 Association of Small Landowners of the Philippines, Inc. vs. Secretary
of Agrarian Reform, 175 SCRA 343 [1989].
5 108 Phil. 144.
6 See Cooley, Thomas II Constitutional Limitations, 8th Ed, pp. 1224
[1927].
7 348 US 1954 (1964).
8 438 US 104.
9 260 US 393.
10 Cooley, Thomas, II Constitutional Limitations, pp. 1161 [1927].
11 Napocor v. CA, 129 SCRA 665 [1984]; Garcia v. CA, 102 SCRA 597
[1981]; Republic v. PLDT, 26 SCRA 620 [1969].
12 244 SCRA 272 [1995].
13 Supra.
14 See Section 11, Article XII of the 1987 Constitution.
PANGANIBAN, J., dissenting;
1 92 of BP Blg. 881 (Omnibus Election Code) provides:

Sec. 92. Comelec time. The Commission shall procure radio and
television time to be known as "Comelec Time" which shall be
allocated equally and impartially among the candidates within the area
of coverage of all radio and television stations. For this purpose, the
franchise of all radio broadcasting and television stations are hereby
amended so as to provide radio or television time, free of charge,
during the period of the campaign.
2 244 SCRA 272, May 22, 1995, per Feliciano, J.
3 9, Art. III of the Constitution provides:
Sec. 9. Private property shall not be taken for public use without just
compensation.
4 Pp. 6-7, Decision in GR 132922.
5 Finch, adopted by Blackstone in State v. Twin Village Water Co., 98
Me 214, 56 A 763 (1903), cited in Radio Communication of the
Philippines, Inc. vs. National Telecommunications Commission, 150
SCRA 450, 457, May 29, 1987. Also in Lim vs. Pacquing, 240 SCRA 649,
678, January 27, 1995.
6 Tolentino, Arturo M., Commentaries and Jurisprudence on the Civil
Code of the Philippines, p. 2, Vol. II, (1992); citing 3 Planiol & Ripert 59.
7 36 Am Jur 2d, 4 Franchises.
8 Ibid., 5.
9 Ibid., citing Los Angeles v. Los Angeles Gas & Electric Corp. 251 US
32, 64 L ed. 121, 40 S Ct 76; United States v. Brooklyn Union Gas Co.
(CA 2 NY) 168 F 2d 391; South California Gas Co. v. Los Angeles, 50 Cal
2d 713, 329 P 2d 289. Also in English Ave. Coach Corp. v. New York,
286 NY 84, 35 NE 2d 907.
10 See footnote no. 3.
11 36 Am Jur 2d, 8 Franchises, citing Grand Turk Western R. Co. v.
South Bend, 227 US 544, 57 L ed. 633, 33 S Ct 303; Wilcox
Consolidated Gas Co., 212 US 19, 53 L ed. 382, 29 S Ct 192;
Wilmington & W.R. Co. v. Reid, 13 Wall (US) 264, 20 L ed. 568; Arkansas
State Highway Commission v. Arkansas Power & Light Co., 231 Ark 307,
330 SW 2d 77; and others.
12 11, Art. XII of the Constitution provides:
Sec. 11. No franchise, certificate, or any other form of authorization for
the operation of a public utility shall be granted except to citizens of
the Philippines or to corporations or associations organized under the
laws of the Philippines at least sixty per centum of whose capital is
owned by such citizens, nor shall such franchise, certificate or
authorization be exclusive in character or for a longer period than fifty
years. Neither shall any such franchise or right be granted except
under the condition that is shall be subject to amendment, alteration,
or repeal by the Congress when the common good so requires. The
State shall encourage equity participation in public utilities by the
general public. The participation of foreign investors in the governing

body of any public utility enterprise shall be limited to their

proportionate share in its capital, and all the executive and managing
officers of such corporation or association must be citizens of the
Philippines.
13 244 SCRA at p. 279.
14 Blo Urrquar Adiong v. Comelec, 207 SCRA 712, 719, March 31, 1992,
per Gutierrez, J., cited in Memorandum for Petitioners, p. 15.
15 Gonzales vs. Comelec, 27 SCRA 835, 871, April 18, 1969, per
Fernando, J.
16 People vs. Nazario, 165 SCRA 186, 195, August 31, 1988, per
Sarmiento, J.
17 See pp. 20-27 for the detailed computation.
18 Agbayani, Aguendo F., Commentaries and Jurisprudence on the
Commercial Laws of the Philippines, p. 560, 1993 ed.; citing Fisher vs.
Yangco Steamship Company, 31 Phil 1, (1915), referring to Chicago etc.
R. Co. vs. Minnesota, 134 U.S. 418, Minneapolis Eastern R. Co. vs.
Minnesota, 134 U.S. 467, Chicago etc. R. Co. vs. Wellman, 143 U.S.
339, Smyth vs. Arnes, 169 U.S. 466, 524, Henderson Bridge Co. vs.
Henderson City, 173 U.S. 592, 614.
19 36 Am Jur 2d 732; citing Los Angeles v. Los Angeles Gas & E. Corp.
251 U.S. 32, 64 L ed 121, 40 S Ct 76; United States v. Brooklyn Union
Gas Co. (CA2 NY) 168 F2d 391; Southern California Gas Co. v. Los
Angeles, 50 Cal 2d 713, 329 P2d 289, cert den 359 US 907, 3 L ed 2d
572, 79 S Ct 583.
20 Apart from paying "supervision fees," broadcast media also pay
normal taxes, imposts, fees, assessments and other government
charges.
21 36 Am Jur 2d pp. 724 and 727; citing Gordon v. Appeal Tax Ct. 3
How (US) 133, 11 L ed. 529; Bridgeport v. New York & N.H.R. Co., 36
Conn 255; Consolidated Gas Co. v. Baltimore, 101 Md 541, 61 A 532.
22 In the case of ABS-CBN Broadcasting Corporation, the amount is
much larger: P3,196,912,000, per its Audited Consolidated Financial
Report as of December 31, 1996, on file with the SEC.
23 At p. 20. See also Annex B of said Memorandum.
24 This is not to say that all broadcast networks are profitable. A
comparative study of their Financial Statements on file with the SEC
shows that a majority are not really profitable.
25 1, Art. III of the Constitution.
26 9, Art. III of the Constitution.
27 1, Art. III of the Constitution.
28 As personified in this case by the Comelec.