Based

on the 2007 Edition of Constitutional Law 2 by Isagani Cruz

DEFINITION AND SCOPE

Professor Freund definition: Promotes
the public welfare by restraining and
regulating the use of liberty and
property.

COMPARISON OF THE 3 POWERS

POLICE
POWER
Property AND
Liberty
Virtually all
people are
affected;
Infinitely
more
important
than eminent
domain and
taxation

CONSTITUTIONAL LAW 2

THE POLICE POWER

EMINENT
DOMAIN
Property

TAXATION

Only those
whose
property is
needed for
conversion to
public use

Imposed on
MOST people;
demands only
part of their
money as
their
contribution
of
government
upkeep.

Property

CHARACTERISTICS

MOST pervasive
LEAST limitable
MOST demanding
May be exercised as long as the activity
or the property sought to be regulated
has some relevance to the public
welfare.
Justifications
(subordination
of
individual benefit to the interest of the
greater number):
o Salus Populi Est Suprema Lex:
The welfare of the people shall
be the supreme law.
o Sic utere tuo ut alienum non
laedas: Use your own property
in such a way that you do not
injure other peoples rights.

May not be bargained away through a

contract or even a treaty.
The impairment clause must yield to the
police power whenever the contract
deals with a subject affecting the public
welfare.
Stone v. Mississippi (Lottery franchise
case): No Legislature can bargain away
the public health or the public morals.
The supervision of both these subjects
of governmental power is continuing in
its nature, and they are to be dealt with
as the special exigencies of the moment
require; The contracts which the
Constitution protects are those that
relate to property rights, not
governmental;
These
franchises
acquired by the people are, in legal
effect, nothing more than a license to
continue on the terms named for
specified time, unless sooner abrogated
by the sovereign power of the state. It is
a permit, good as against existing laws,
but subject to future legislative and
constitutional control or withdrawal
(Lottery is a species of gambling, and
wrong in their influences. They disturb
the checks and balances of a wellordered community)
Ichong v. Hernandez (Retail Trade
Nationalization Law case): A treaty is
always subject to qualification or
amendment by a subsequent law and
the same may never curtail or restrict
the scope of the police power of the
State.
Police power is dynamic, not static.
Conditions change, circumstances vary;
and to every such alteration the police
power must conform.

CONSTITUTIONAL LAW 2

THE POLICE POWER
Based on the 2007 Edition of Constitutional Law 2 by Isagani Cruz

Once exercised, it is not deemed

exhausted and may be exercised again
and again.
Tax as an implement of Police Power.
o Powell
v.
Pennsylvania
(Margarine case): Production of
margarine was made in an
unsanitary manner to the
prejudice of the consumers
therefore the State imposed
exorbitant taxes making it
unprofitable for the industry to
continue without incurring loss.
o Lutz
v.
Araneta
(Sugar
Adjustment Act case): The
additional tax imposed on
manufacturing sugar was for the
stabilization of the sugar
industry, based on the demand
of general welfare, which was
one of the great industries of the
country. This is primarily an
exercise of police power and
taxation was merely an
implement to the states police
power.
Power of Eminent Domain as an
implement of Police Power.
o Association of Small Landowners
v. Secretary of Agrarian Reform
(Comprehensive
Agrarian
Reform Law case): The
expropriation of the excess of
the maximum area allowed by
law was a valid exercise of police
power through eminent domain
for the promotion of the welfare
of landless farmers. There must
be just compensation for there is
compensable taking.

EXERCISE OF THE POLICE POWER

Primarily by the national legislature.
By virtue of a valid delegation:
o President
o Administrative Boards
o Lawmaking bodies on all
municipal
levels
(including barangay)
Municipal governments exercise this
under the general welfare clause (Sec.
2238, Revised Admin. Code) pursuant to
which they are authorized to:
o Enact such ordinances
and
issue
such
regulations as may be
necessary to carry out
and
discharge
the
responsibilities conferred
upon it by law.
o To provide health, safety,
comfort
and
convenience.
o Maintain peace and
order.
o Improve public morals.
o Promote prosperity and
general welfare of the
municipality
and
inhabitants thereof.
o Insure the protection of
property therein.

General welfare clause defined: A
provision in a municipal charter
whereby a municipal corporation, by
virtue of its police power, may adopt
ordinances to secure the peace, safety,
health, morals and the best and highest
interest of the entity. (Case v. Board of
Health)

CONSTITUTIONAL LAW 2

THE POLICE POWER
Based on the 2007 Edition of Constitutional Law 2 by Isagani Cruz

Exclusive legislative discretion:
o Exercise of police power.
o To decide whether they should
act against a problem.
If they do: eh di okay.
If they dont: may not be
compelled by judicial
process. (Mandamus is
not a remedy)
The only remedy
against
legislative
inaction is a resort to the
bar of public opinion, a
refusal of the electorate
to return to the
legislature
members,
who in their view, have
been remiss in the
discharge of their duties
(I assume this means
dont vote for them lol)
o If the legislature decides to act,
the choices of measures or
remedies lie exclusively within its
discretion. Once determined, the
remedy cannot be attacked on
the grounds of it not being the
best suggested solution, lack of
wisdom,
impracticality,
inefficacy
or
immorality.
(Political question po ito)
o To ascertain facts on which the
power is based. Whatever it
decides is conclusive on the
courts.
If there is probable basis
for
sustaining
the
conclusion, its findings
are not subject to judicial
review.
Debatable
questions are for the

legislature to decide. The

courts do not sit to
resolve
merits
of
conflicting theories.

TESTS OF THE POLICE POWER

If the measures chosen are intrinsically
invalid, courts have the right and
obligation to declare them so.

1. The interests of the public generally, as
distinguished from those of a particular
class, require the exercise of the police
power (LAWFUL SUBJECT); and
2. The means employed are reasonably
necessary for the accomplishment of
the purpose and not unduly oppressive
upon individuals. (LAWFUL MEANS)

LAWFUL SUBJECT
(Welfare of the people is the supreme law)

The subject of the measure is within the
scope of the police power.
Activity or property sought to be
regulated affects public welfare.
OBJECT: Public welfare; SUBJECT OF
REGULATION must be related to the
object; then it is a lawful subject.
Taxicab Operators of Metro Manila v.
Board of Transportation (Old taxis case):
Taxicabs more than 6 years old must be
phased out as a police measure to
protect the public and promote their
comfort and convenience.
Velasco v. Villegas (Barbers and
massage case): The ordinance
preventing barber shops to massage
clients in a separate room prevents
immorality and enables the authorities
to properly assess license fees.

CONSTITUTIONAL LAW 2

THE POLICE POWER
Based on the 2007 Edition of Constitutional Law 2 by Isagani Cruz

Bautista v. Junio (Trucks case):

Prohibition of heavy and extra-heavy
vehicles to use public streets on a
weekend is for energy conservation
purposes.
Tio v. Videogram Regulatory Board
(Valerie case lol): The creation of the
VRB was to regulate the video industry
due to rampant piracy, violation of
intellectual property and proliferation of
pornographic video tapes.
Lozano v. Martinez (BP 22 case): The
Bouncing Checks Law is constitutional
because worthless checks transcends
private interests of parties directly
involved in the transaction and can
pollute the channels of trade and
commerce and injure the banking
system and eventually hurt the welfare
of society and public interest.
Department of Education v. San Diego
(NMAT case): Right to quality education
cannot be invoked by the respondent
because the regulation issued by
petitioner is a valid exercise of police
power because persons who fail to
qualify may be a menace to his patients
and the State has the responsibility to
harness its human resources and to see
to it that they are not dissipated or, no
less worse, not used at all. The
resources must be applied in a manner
that will best promote the common
good while also giving the individual a
sense of satisfaction.
Sangalang v. Intermediate Appellate
Court: Opening 2 private roads in Bel Air
Village and their availability to the
general public under certain conditions
is valid for the purposes of traffic
decongestion and public convenience.

Telecommunications and Broadcast

Attorneys of the Philippines v. COMELEC
(Free air time case): Sec. 92 of BP Blg.
881 (Omnibus Election Code of the
Philippines) is constitutional for radio
and television broadcasting companies
do not own the airwaves and
frequencies transmitted by them. They
are merely given temporary privilege of
use. Since it is a privilege, the exercise
thereof may be reasonably burdened
with the performance by the grantee of
some form of public service.
Those that have no bearing whatever
upon public welfare are not within the
reach of police power.
Ople v. Torres (National Computerized
Identification Reference System case):
A.O. 308 is an invalid police measure for
it pressures the people to surrender
their privacy by giving information
about themselves on the pretext that it
will facilitate the delivery of basic
services. (Petitioner believe this is a
sinister attempt of the government to
control its citizens by intruding into their
right of privacy)

LAWFUL MEANS

Must concur with lawful subject. Lack of
one, police measure will be struck
down.
The lawful objective must be pursued
with a lawful method. Both the end and
means must be legitimate.
Ynot v. Intermediate Appellate Court
(Carabao and carabeef case): Prevention
of the indiscriminate slaughter of (live)
carabao is a valid subject but the
prohibition of the interprovincial
transport of carabaos to achieve such

CONSTITUTIONAL LAW 2

THE POLICE POWER
Based on the 2007 Edition of Constitutional Law 2 by Isagani Cruz

subject is questioned by the court. They

can be killed anywhere so retaining
them in one place cannot prevent their
killing in another. As for the carabeef
(dead meat), as the court stated,
there is no reason to prohibit their
transfer since they are already dead.
Example 1: Rape. The punishment is life
imprisonment to death (which is now
amended limiting the punishment to
imprisonment). There is equivalence in
the offense and penalty. If, for example,
the penalty becomes castration of the
rapist, valid? It is not because of the
guaranty by the due process of law to
respect the integrity of the persons
body.
Example 2: Community Cleanliness. An
ordinance may be enacted requiring
litter to be deposited in trash bins and
non-compliance will induce punishment.
Such ordinance, however, will become
invalid if it prohibits, for example,
distribution of bills in public places in
the belief that people will scatter them
on the streets after viewing. Invalidity is
due to the violation of the distributors
rights to articulate and disseminate
ideas as guaranteed under the freedom
of expression clause in the Constitution.
Means employed must pass the test of
reasonableness so as to conform with
the Bill of Rights for the protection of
private rights. Failing this, the law will
be annulled for violation of the second
requirement.

INTEGRITY OF POLICE POWER

Non-compliance with the 2 requisites is
tantamount to unwarranted intrusion of

individual liberty and property rights or

worse, bludgeon for oppression.
The corruption of police power will lead
to the decay of democracy itself.

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