G.R. No.

L-10255 August 6, 1915

THE UNITED STATES, plaintiff-appellant,

vs.
SILVESTRE POMPEYA, defendant-appellee.

Office of the Solicitor-General Corpus for appellant.

Lawrence, Ross and Block for appellee.

JOHNSON, J.:

On the 1st day of June, 1914, the acting prosecuting attorney of the Province of Iloilo
presented the following complaint in the Court of First Instance of said province: "The
undersigned fiscal charges Silvestre Pompeya with violation of the municipal ordinance
of Iloilo, on the subject of patrol duty, Executive Order No. 1, series of 1914, based on
section 40 (m) of the Municipal Code, in the following manner:

"That on or about March 20 of the current year, 1914, in the jurisdiction of the municipality
of Iloilo, Province of Iloilo, Philippine Islands, the said accused did willfully, illegally, and
criminally and without justifiable motive fail to render service on patrol duty; an act
performed in violation of the law.

"That for this violation the said accused was sentenced by the justice of the peace of
Iloilo to a fine of P2 and payment of the costs of the trial, from which judgment said
accused appealed to the Court of First Instance.".

Upon said complaint the defendant was duly arraigned .Upon arraignment he presented
the following demurrer: "The defendant, through his undersigned attorneys, demurs to
the complaint filed in this case on the ground that the acts charged therein do not
constitute a crime.".

In support of said demurrer, the defendant presented the following argument: "The
municipal ordinance alleged to be violated is unconstitutional because it is repugnant to
the Organic Act of the Philippines, which guarantees the liberty of the citizens.".

Upon issues thus presented, the Honorable J. s .Powell, judge, on he 22nd day of
August, 1914, after hearing the arguments of the respective parties, sustained said
demurrer and ordered the dismissal of said complaint and the cancellation of the bond
theretofore given, with costs de oficio.

From the order sustaining the demurrer of the lower court, the prosecuting attorney
appealed to this court.

It appears from the demurrer that the defendant claims that the facts stated in the
complaint are not sufficient to constitute a cause of action. In his argument in support of
said demurrer it appears that the real basis of said demurrer was the fact that the
ordinance upon which said complaint was based was unconstitutional, for the reason that
it was contrary to the provisions of the Philippine Bill which guarantees liberty to the
citizens of the Philippine Islands.

In this court the only question argued by the Attorney-General is whether or not the
ordinance upon which said complaint was based (paragraph "m" of section 40 of the
Municipal Code) which was adopted in accordance with the provisions of Act No. 1309 is
constitutional. Section 40 of Act No. 82 (the Municipal Code) relates to the power of
municipal councils. Act No. 1309 amends said section (section 40, paragraph "m") which
reads as follows: "(m)With the approval of the provincial governor, when a province or
municipality is infested with ladrones or outlaws (the municipal council is empowered):

"1. To authorize the municipal president to require able-bodied male residents of the
municipality, between the ages of eighteen and fifty years, to assist, for a period not
exceeding five days in any one month, in apprehending ladrones, robbers, and other
lawbreakers and suspicious characters, and to act as patrols for the protection of the
municipality, not exceeding one day in each week. The failure, refusal, or neglect of any
such able-bodied man to render promptly the service thus required shall be punishable
by a fine not exceeding one hundred pesos or by imprisonment for not more than three
months, or by both such fine and imprisonment, in the discretion of the court: Provided,
That nothing herein contained shall authorize the municipal president to require such
service of officers or men of the Army of Navy of the United States, civil employees of the
United States Government, officers and employees of the Insular Government, or the
officers or servants of companies or individuals engaged in the business of common
carriers on sea or land, or priests, ministers of the gospel, physicians,practicantes,
druggists or practicantes de farmacia, actually engaged in business, or lawyers when
actually engaged in court proceedings.".

Said Act No. 1309 contains some other provisions which are not important in the
consideration of the present case.

The question which we have to consider is whether or not the facts stated in the
complaint are sufficient to show (a) a cause of action under the said law; and (b) whether
or not said law is in violation of the provisions of the Philippine Bill in depriving citizens of
their rights therein guaranteed.

We deem it advisable to consider the second question first.

It becomes important to ascertain the real purpose of said Act (No. 1309) in order to
know whether it covers a subject upon which the United States Philippine Commission
could legislate. A reading of said Act discloses (1) that it is an amendment of the general
law (Act No. 82) for the organization of municipal government; (2) that it is amendment of
section 40 of said Act No. 82, by adding thereto paragraph "m;" (3) that said section 40
enumerates some of the powers conferred upon the municipal council; (4) that said
amendment confers upon the council additional powers. The amendment empowers the
municipal council, by ordinance, to authorize the president: (a) To require able-bodied
male residents of the municipality, between the ages of 18 and 55 [50], to assist, for a
period not exceeding five days in any month, in apprehending ladrones, robbers, and
other lawbreakers and suspicious characters, and to act as patrols for the protection of
the municipality, not exceeding one day each week; (b) To require each householder to
report certain facts, enumerated in said amendment.

The specific purpose of said amendment is to require each able-bodied male resident of
the municipality, between the ages of 18 and 55 [50], as well as each householder when
so required by the president, to assist in the maintenance of peace and good order in the
community, by apprehending ladrones, etc., as well as by giving information of the
existence of such persons in the locality. The amendment contains a punishment for
those who may be called upon for such service, and who refuse to render the same.

Is there anything in the law, organic or otherwise, in force in the Philippine Islands, which
prohibits the central Government, or any governmental entity connected therewith, from
adopting or enacting rules and regulations for the maintenance of peace and good
government? May not the people be called upon, when necessary, to assist, in any
reasonable way, to rid the state and each community thereof, of disturbing elements? Do
not individuals whose rights are protected by the Government, owe some duty to such, in
protecting it against lawbreakers, and the disturbers of the quiet and peace? Are the
sacred rights of the individual violated when he is called upon to render assistance for the
protection of his protector, the Government, whether it be the local or general
government? Does the protection of the individual, the home, and the family, in civilized
communities, under established government, depend solely and alone upon the
individual? Does not the individual owe something to his neighbor, in return for the
protection which the law afford him against encroachment upon his rights, by those who
might be inclined so to do? To answer these questions in the negative would, we believe,
admit that the individual, in organized governments, in civilized society, where men are
governed by law, does not enjoy the protection afforded to the individual by men in their
primitive relations.

If tradition may be relied upon, the primitive man, living in his tribal relations before the
days of constitutions and states, enjoyed the security and assurance of assistance from
his fellows when his quiet and peace were violated by malhechores. Even under the
feudal system, a system of land holdings by the Teutonic nations of Europe in the
eleventh, twelfth, and thirteenth centuries, the feudal lord exercised the right to call upon
all his vassals of a certain age to assist in the protection of their individual and collective
rights. (Book 2, Cooley's Blackstone's Commentaries, 44; 3 Kent's Commentaries, 487;
Hall, Middle Ages; Maine, Ancient Law; Guizot, history of Civilization; Stubbs'
Constitutional History of England; Chisholm vs. Georgia, 2 Dall .(U. S.), 419;
DePeyster vs.Michael, 6 N. Y., 467.) Each vassal was obliged to render individual
assistance in return for the protection afforded by all.

The feudal system was carried in to Britain by William the Conqueror in the year 1085
with all of is ancient customs and usages.

we find in the days of the "hundreds," which meant a division of the state occupied by
one hundred free men, the individual was liable to render service for the protection of all.
(Book 3, Cooley's Blackstone's Commentaries, 160, 245, 293, 411.) In these "hundreds"
the individual "hundredor," in case of the commission of a crime within the county or by
one of the "hundredors," as against another "hundred," was obliged to join the "hue and
cry" (hutesium et clamor) in the pursuit of the felon. This purely customary ancient
obligation was later made obligatory by statute. (Book 4, Cooley's Blackstone's
Commentaries, 294; 3 Edward I., Chapter 9; 4 Edward I., Chapter 2; 13 Edward I.,
Chapters 1 and 4.).

Later the statute provided and directed: "That from thenceforth every county shall be so
well kept, that, immediately upon robberies and feloniously committed, fresh suit shall be
made from town (pueblo) to town, and from county to county; and that "hue and cry" shall
be raised upon the felons, and they keep the town (pueblo) shall follow with "hue and
cry," with all the town (pueblo), and the towns (pueblos) near; and so "hue and cry" shall
be made from town (pueblo) to town, until they be taken and delivered to the sheriff.".

Said statue further provided that in case the "hundred" failed to join the "hue and cry" that
it should be liable for the damages done by the malhechores. Later, by statue (27th
Elizabeth, chapter 13) it was provided that no "hue and cry" would be sufficient unless it
was made with both horsemen and footmen. The "hue and cry" might be raised by a
justice of the peace, or by any peace officer, or by any private person who knew of the
commission of the crime.

This ancient obligation of the individual to assist in the protection of the peace and good
order of his community is still recognized in all well-organized governments in the "posse
comitatus" (power of the county, poder del condado). (Book 1 Cooley's Blackstone's
Commentaries, 343; Book 4, 122.) Under this power, those persons in the state, county,
or town who were charged with the maintenance of peace and good order were bound,
ex oficio, to pursue and to take all persons who had violated the law. For that purpose
they might command all the male inhabitants of a certain age to assist them. This power
is called "posse comitatus" (power of the county). This was a right well recognized at
common law. Act No. 1309 is a statutory recognition of such common-law right. Said Act
attempts simply to designate the cases and the method when and by which the people of
the town (pueblo) may be called upon to render assistance for the protection of the public
and the preservation of peace and order. It is an exercise of the police power of the state.
Is there anything in the organic or statutory law prohibiting the United States Philippine
Commission from adopting the provisions contained in said Act No. 1309?

While the statement has its exceptions, we believe, generally speaking, that the United
States Commission, and now the Philippine Legislature, may legislate and adopt laws
upon all subjects not expressly prohibited by the Organic Law (Act of congress of July 1,
1902) or expressly reserved to Congress. Congress did not attempt to say to the
Philippine Legislature what laws it might adopt. Congress contended itself by expressly
indicating what laws the Legislature should not adopt, with the requirement that all laws
adopted should be reported to it, and with the implied reservation of the right to nullify
such laws as might not meet with its approval.

Considering the Organic Act (Act of Congress of July 1, 1902) as the real constitution of
the United States Government in the Philippine Islands, and its inhibitions upon the
power of the Legislature, we believe an analogy may be drawn relating to the difference
between the Constitution of the United States and the constitution of the different States,
with reference to what laws may be adopted by the different States. While the statement
needs much explanation, the general rule is that Congress has authority to
legislate only upon the questions expressly stated in the Constitution of the United
States, while the state legislature may legislate upon all questions, not expressly
conferred upon Congress, nor prohibited in its constitution. In other words, an
examination of the Constitution of the United States discloses the subject matter upon
which Congress may legislate, while examination of the constitutions of the different
States must be made for the purpose of ascertaining upon what subjects the state
legislature can not legislate. Stating the rule in another way — the Constitution of the
United States permits Congress to legislate upon the following subjects; the constitutions
of the States prohibit the state legislature from legislating upon the following subjects.
Generally, then, the legislature of a State any adopt laws upon any question not
expressly delegated to Congress by the Constitution of the United States or prohibited by
the constitution of the particular State.

We think that is the rule which should be applied to the Philippine Legislature. The
Philippine Legislature has power to legislate upon all subjects affecting the people of the
Philippine Islands which has not been delegated to Congress or expressly prohibited by
said Organic Act. (Gaspar vs. Molina, 5 Phil. Rep., 197; U.S., vs. Bull, 15 Phil. Rep., 7.)

The right or power conferred upon the municipalities by Act No. 1309 falls within the
police power of the state (U.S .vs. Ling Su Fan, 10 Phil. Rep., 104.) Police power of the
state has been variously defined. It has been defined as the power of the government,
inherent in every sovereign, and cannot be limited; (License Cases, 5 How. (U.S.), 483).
The power vested in the legislature to make such laws as they shall judge to be for the
good of the state and its subjects. (Commonwealth vs. Alger, 7 Cush. (Mass.), 53, 85).
The power to govern men and things, extending to the protection of the lives, limbs,
health, comfort, and quiet of all persons, and the protection of all property within the
state. (Thorpe vs. Rutland, etc., Co., 27 Vt., 140, 149.) The authority to establish such
rules and regulations for the conduct of all persons as may be conducive to the public
interest. (People vs. Budd., 117 N.Y., 1, 14; U.S., vs. Ling Su Fan, supra.) Blackstone, in
his valuable commentaries on the common laws, defines police power as "the defenses,
regulations, and domestic order of the country, whereby the inhabitants of a state, like
members of a well-governed family, are bound to conform their general behaviour to the
rules of propriety, good neighborhood, and good manners, and to be decent, industrious,
and inoffensive in their respective stations." (4 Blackstone's Co., 162.)

The police power of the state may be said to embrace the whole system of internal
regulation, by which the state seeks not only to preserve public order and to prevent
offenses against the state, but also to establish, for the intercourse of citizen with citizen,
those rules of good manners and good neighborhood, which are calculated to prevent a
conflict of rights, and to insure to each the uninterrupted enjoyment of his own, so far as
is reasonably consistent, with a like enjoyment of the rights of others. The police power of
the state includes not only the public health and safety, but also the public welfare,
protection against impositions, and generally the public's best best interest. It so
extensive and all pervading, that the courts refuse to lay down a general rule defining it,
but decide each specific case on its merits. (Harding vs. People, 32 L.R.A., 445.)

The police power of the state has been exercised in controlling and regulating private
business, even to the extent of the destruction of the property of private persons, when
the use of such property became a nuisance to the public health and convenience.
(Slaughter House Cases, 16 Wal (U.S.), 36 Minnesota vs. Barber, 136 U.S., 313;
Powell vs. Pennsylvania, 127 U.S., 678; Walling vs. People, 166 U.S., 446; U.S. vs. Ling
Su Fan, 10 Phil. Rep., 104.)

We are of the opinion, and so hold, that the power exercised under the provisions of Act
No. 1309 falls within the police power of the state and that the state was fully authorized
and justified in conferring the same upon the municipalities of the Philippine Islands and
that, therefore, the provisions of said Act are constitutional and not in violation nor in
derogation of the rights of the persons affected thereby.

With reference to the first question presented by the appeal, relating to the sufficiency of
the complaint, it will be noted that Act No. 1309 authorized the municipal governments to
establish ordinances requiring (a) all able bodied male residents, between the the ages of
18 and 55 [50], and (b) all householders, under certain conditions, to do certain things.

It will also be noted that the law authorizing the president of the municipality to call upon
persons, imposes certain conditions as prerequisites: (1) The person called upon to
render such services must be an able-bodied male resident of the municipality; (2) he
must be between the ages of 18 and 55 [50], and (3) certain conditions must exist
requiring the services of such persons.

It will not contended that a nonresident of the municipality would be liable for his refusal
to obey the call of the president; neither can it be logically contended that one under the
age of 18 or over the age of 55 [50] would incur the penalty of the law by his refusal to
obey the command of the president. Moreover, the persons liable for the service
mentioned in the law cannot be called upon at the mere whim or caprice of the president.
There must be some just and reasonable ground, at least sufficient in the mind of a
reasonable man, before the president can call upon the the persons for the service
mentioned in the law. The law does not apply to all persons. The law does not apply to
every condition. The law applies to special persons and special conditions.

A complaint based upon such a law, in order to be free from objection under a demurrer,
must show that the person charged belongs to the class of persons to which the law is
applicable. For example, under the Opium Law, certain persons are punishable criminally
for having opium in their possession. All possessors of opium are not liable under the law.
A complaint, therefore, charging a person with the possession of opium, without alleging
that he did not belong to the class which are permitted to possess it, would be
objectionable under a demurrer, because all persons are not liable. The complaint must
show that the one charged wit the possession of the opium was not one of the persons
who might legally possess opium. Suppose, for another example, that there was a law
providing that all persons who performed manual labor on Sunday should be punished,
with a provision that if such labor should be performed out of necessity, the person
performing it would not be liable. In such a case, in the complaint, in order to show a
good cause of action , it would be necessary to allege that the labor was not performed
under necessity. In other words, the complaint, in order to be free from objection raised
by a demurrer, must show that the person accused of the crime, in the absence of proof,
is punishable under the law. One who performed labor under necessity would not be
liable. The complaints, in the foregoing examples, in the absence of an allegation which
showed that the party accused did not belong to the exempted class, would not be good.
In the absence of such negations, the courts would be unable to impose the penalty of
the law, because, perchance, the defendant might belong to the exempt class. The
complaint, in a criminal case, must state every fact necessary to make out an offense.
(U.S. vs. Cook, 17 Wall. (U.S.), 168.) The complaint must show, on its face that, if the
facts alleged are true, an offense has been committed. It must state explicitly and directly
every fact and circumstance necessary to constitute an offense. If the statute exempts
certain persons, or classes of persons, from liability, then the complaint should show that
the person charged does not belong to that class.

Even admitting all of the facts in the complaint in the present case, the court would be
unable to impose the punishment provided for by law, because it does not show (a) that
the defendant was a male citizen of the municipality; (b) that he was an able-bodied
citizen; (c) that he was not under 18 years of age nor over 55 [50]; nor (d) that conditions
existed which justified the president of the municipality in calling upon him for the
services mentioned in the law.

For all of the foregoing reasons, the judgment of the lower court is hereby affirmed, with
costs. So ordered.

Arellano, C.J., Torres, Carson, Trent, and Araullo, JJ., concur.

G.R. No. L-13678 November 12, 1918

THE UNITED STATES, plaintiff-appellee,

vs.
PRUDENCIO SALAVERIA, defendant-appellant.

Jose R. Varela for appellant.

Office of the Solicitor-General Paredes for appellee.

MALCOLM, J.:

The municipal council of Orion, Bataan, enacted, on February 28, 1917, an

ordinance which, among other things, prohibited the playing of panguingue on days not
Sundays or legal holidays, and penalized the violation thereof by a casero [housekeeper]
by a fine of not less than P10 nor more than P200, and by jugadores[gamblers] by a fine
of not less than P5 nor more than P200. The justice of the peace of Orion, when this
ordinance went into effect, was Prudencio Salaveria, now the defendant and appellant.
Notwithstanding his official station, on the evening of March 8, 1917, not a Sunday or
legal holiday, seven persons including the justice of the peace an his wife were surprised
by the police while indulging in a game of panguingue in the house of the justice of the
peace. The chief of police took possession of the cards, the counters (sigayes), a tray, an
P2.07 in money, used in the game.

These are facts fully proven by the evince and by the admissions of the accused.
Convicted in the justice of the peace court of Orion, and again in the Court of First
Instance of Bataan, Salaveria appeals to this court, making five assignments of error. The
three assignments, of a technical nature, are without merit, and a fourth, relating to the
evidence, is not sustained by the proof. The remaining assignment of error, questioning
the validity of the ordinance under which the accused was convicted, requires serious
consideration and final resolution. This ordinance in part reads:

RESOLUTION NO. 28

xxx xxx xxx

Whereas, this Council is vested with certain powers by sections 2184 and
2185 of the Administrative Code;

Whereas, it is the moral duty of this body to safeguard the tranquillity and
stability of the Government and to foster the welfare and prosperity of each an all
of the inhabitants of this municipality; therefore,

Be it resolved to enact, as it hereby is enacted, the following ordinance:

Ordinance No. 3

xxx xxx xxx

Third. — The games known as "Panguingue" "Manilla," "Jung-kiang,"

"Paris-Paris," "Poker," "Tute," "Burro," and "Treinta-y-uno" shall be allowed only
on Sundays an official holidays.

xxx xxx xxx

The following penalties shall be imposed upon those who play the above
games on days other than Sundays and official holidays:

For the owner of the house: A fine of from Ten to Two hundred pesos, or
subsidiary imprisonment in case of insolvency at the rate of one peso a day.

For the gamblers: A fine of from Five to Two hundred pesos each or
subsidiary imprisonment in case of insolvency at the rate of one peso a day.

The Philippine Legislature has granted to municipalities legislative powers of a dual

character, one class mandatory an the other discretionary. Of the first class is the
provision of the Administrative Code which makes it the duty of the municipal council,
conformably with law, "to prohibit and penalize . . . gambling." (Sec. 2188 [i], Adm. Code
of 1916; sec. 2242 [i], Adm. Code of 1917.) This is a more restricted power than that
found in the original Municipal Code which authorized a municipal council to "provide
against the evils of gambling, gambling houses, and disorderly houses of whatsoever
sort." (Act No. 82, sec. 39 [u].) The present municipal law, since making use of the word
"gambling," must be construed with reference to the Insular Law, Act No. 1757, relating to
the same subject. Act No. 1757 in section 1 defines "gambling" as "the paying of any
game for money or any representative of value or valuable consideration or thing, the
result of which game depends wholly or chiefly upon chance or hazard, or the use of any
mechanical inventions or contrivance to determine by chance the loser or winner of
money or of any representative of value or of any valuable consideration or thing." In the
United States vs. Hilario ([1913], 24 Phil., 392), the Supreme Court went into the subject
of the meaning of "gambling" in this jurisdiction, and found that it includes those games
the result of which depend wholly or chiefly upon chance or hazard, and excludes those
games the result of which depend wholly or chiefly upon skill, with the result that sections
621 to 625 of the Revise Ordinances of the city of Manila (734-738 of the Revised
Ordinances of 1917) were found to prohibit only games of chance or hazard.

The ordinance of Orion, Bataan, merely prohibits the playing of panguingue on

certain days, without describing it. Further, although this court has considered the method
by which many other games are played, it has never as yet authoritatively decided
whether panguingue was a game of skill or hazard. Nor was any evidence on this point
introduced in the present case. However, a reading of the decision of the trial court and of
official opinions of two Attorneys-General, of which we can take judicial cognizance,
warrants the deduction thatpanguingue 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 Avanceña, JJ., concur.

September 30, 1960

G.R. No. L-15305

THE CITY OF MANILA, plaintiff-appellant,
vs.
ARCADIO PALLUNGNA, defendant-appellee.

City Fiscal H. Concepcion, Jr. and Astt. City Fiscal A.H. Cusi for appellant.
Ansberto Paredes for appellee.
, J.:
The City of Manila brought this action before the court of first instance of said city against
Arcadio Pallugna to recover the amount of P2,923.75 being the difference between what
the latter should pay for the operation of seven (7) pinball machines under Ordinance No.
3628 and what he actually paid under Ordinance No. 3347.

Defendant interposed the defense that Ordinance No. 3628 on which plaintiff bases its
claim is invalid for having been enacted in excess of the power conferred by law upon it
and, as a counterclaim, he claims the amount of P745.75 as attorney’s fee and expenses
of litigation.

The parties submitted a stipulation of facts from which the following may be deduced: that
defendant was granted license to operate seven pinball machines during the effectivity of
Ordinance No. 3628; that said pinball machines are of the flipper type and defendant had
operated them from 1956 to April 24, 1957, having paid for their operation a license fee of
P12.50 a quarter for each machine, or a total of P437.50; that on April 24, 1957, when
defendant was notified of the increase in the license fees under Ordinance No. 3628 he
retired from business and ceased operating his pinball machines; that on September 6,
1957, defendant was formally advised by the city treasurer to pay a deficiency tax,
including surcharge under said ordinance, in the amount of P1,983.75 for the operation of
said seven pinball machines; and that on September 12, 1957, defendant requested the
city treasurer to desist from collecting the aforesaid deficiency tax due to the pendency of
a civil case pending in the same court, but the request was unheeded and the present
action was brought.

The trial court, on February 23, 1959, rendered decision holding Ordinance No. 3628 null
and void following its ruling in some previous cases wherein it held that said ordnance
being a tax measure adopted for the purpose of arising revenue is beyond the power of the
City of Manila to enact. Accordingly, it dismissed the complaint without costs.

The City of Manila is now appealing from said decision assigning as main error the finding
of the trial court that Ordinance No. 3628 is invalid for being a tax measure which cannot
be enacted by said city.

In Uy Ha vs. The City Mayor, et al., 108 Phil. 400; 58 O.G. (37) 5997, this Court held:

Since Ordinance No. 3628 seeks to regulate and license the operation of “pinball
machines” within the City of Manila upon payment of an annual license of P300.00 for each
“pinball machines,” the same is ultra vires, it being an exercise of power not granted by
law to the intervenor. As already stated, those devices are prohibited by law and as such
are not subject to regulation. The attempt, therefore, on the part of the intervenor to
collect the sum of P4,620.00 as unpaid license fees under said ordinance cannot be
entertained.

It, therefore, appears that Ordinance No. 3628 is ultra vires, not because it is a tax
measure, but because it was enacted beyond the power granted by law to the City of
Manila. Hence, any attempt to collect any license fee under said ordinance is illegal.

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

Paras, C.J., Bengzon, Padilla, Labrador, Concepcion, Reyes, J.B.L., Barrera, Gutierrez
David, Paredes, and Dizon, JJ., concur.

July 25, 1922

G.R. No. 18838
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
TEOFILO GABRIEL, defendant-appellant.

Canillas & Cardenas for appellant.

Attorney-General Villa-Real for appellee.
Johns, J.:
The city of Manila, under section 749, as revised, enacted Ordinance No. 938m as follows:

SEC. 749. Bells and criers at auctions. – No bell or crier, or other means of attracting
bidders by the use of noise or show, other than a sign or flag, shall be employed or
suffered or permitted to be used, except between the hours of eight antemeridian to
twelve o’clock noon, and from two to seven o’clock postmeridian, during working days, at
or near any o’clock postmeridian, during working days, at or near any place for sale or at
or near any auction or room or near any auction whatsoever: Provided, however, That the
ringing of bells and the use of any megaphone, magnavox, and criers or other means of
attracting buyers and bidders to any place of sale or auction shall be prohibited on Calles
Escolta, Rosario, and Echague, and Plaza Santa Cruz and Plaza Goiti.

The defendant was accused for a violation of this ordinance. The Municipal Court found him
guilty and sentenced him to pay a fine of P10 and costs. On appeal the Court of First
Instance affirmed the decision, from which the defendant appealed to this court, claiming
that the court erred in holding the ordinance valid, or that the defendant had violated it,
and in the passing of sentence.

It appear that on September 26, 1921, at about 11:20 a.m., a policeman, William S. Able,
while passing through Rosario Street in the city of Manila, heard a crier of an auction sale
in a place of business numbered 109 and 111 of the street, the voice of the crier to be
heard at quite a little distance from the place, and the complaint in question was filed.

There is but little dispute about the facts.

Defendant’s counsel contends that the ordinance discriminates and is void and
unconstitutional. It will be noted that it applies alike to all persons on Calles Escolta,
Rosario, Echague, Plaza Santa Cruz, and Plaza Goiti. There is no discrimination against any
person in business on those particular streets. It is in the nature of a police regulation, and
to that extent is intended as a business regulation. It must be admitted that, under its
police power, the City Council of Manila has authority to regulate and control public
auctions within its city boundaries. For reasons satisfactory to the City Council, between
certain hours and on those particular streets, the ordinance prohibits a crier or the use of a
bell to attract bidders or anything other than a sign or flag.

We must assume that there was some good and sufficient reason why it was enacted, and
it is not the province or this court to say whether or not its enactment was prudent or
advisable. It is nothing more than a regulation of the business, affairs of the city, and is a
matter in the discretion of the council acting under its police power. There is no
discrimination in the ordinance. It applies to all kinds and classes of people alike doing
business within the prohibited area, and no person within the city limits has any legal or
constitutional right to auction his goods without a license from, or the consent of, the city,
and it must follow that, so long as the ordinance is uniform, the city has a legal right to
specify how, when, where, and in what manner goods may be sold at auction within its
limits, and to prohibit their sale in any other manner.

There is no merit in the defense. The judgment is affirmed, with costs. So ordered.

Araullo, C.J., Johnson, Street, Avanceña, Ostrand and Romualdez, JJ., concur.

G.R. No. L-46455 October 31, 1939

EUSEBIO PELINO, plaintiff-appellee,

vs.
JOSE ICHON, ET AL., defendants.
JOSE ICHON, appellant.

P. Salazar and F. Montejo for appellant.

Mateo Canonoy for appellee.

AVANCEÑA, C.J.:

The plaintiff is operating a cockpit in the municipality of Tanauan, under a license issued
in accordance with municipal ordinance No. 20 of 1935 authorizing the establishment of a
single cockpit in the municipality.

On March 15, 1938, the municipal council of Tanauan approved another ordinance
No. 8 authorizing as many cockpits as are applied for. The Municipal President vetoed
this ordinance . The municipal council, however, composed of six councilors, kept
Ordinance No. 8 in being over the veto of the president by a two-thirds vote of its
members.

The defendant, in turn, obtained a license, pursuant to this ordinance No. 8, to

operate another cockpit in the same municipality.

On June 8, 1938, the plaintiff Eusebio Peliño brought this action against the
municipal council of Tanauan, asking that municipal ordinance No. 8 be declared null and
void and that the defendant Ichon be ordered to pay him, by way of damages, the
amount of P2,000.

Upon petition of the plaintiff, the court, on April 9th of the same year, issued a writ
of preliminary injunction against the defendants, which writ was lifted by the filing of a
bond put up by the defendant Ichon.

The court declared ordinance No. 8 null and void, revived the writ of injunction
issued against the defendants and ordered the defendant Inchon to pay the plaintiff the
sum of P2,000 by way of damages. The defendants appealed form this decision.
 The only ground of the appealed decision is annulling ordinance No. 8 is that the
same is contrary to the spirit of section 2338 of the Revised Administrative Code and is
beyond the powers granted to the municipal council by section 2243 of the same code.

The portion of ordinance No. 8 which led the court to declare it null and void is that
one authorizing as many cockpits in the municipality as there are applicants therefor.
However, the municipal council acted within its powers in enacting this ordinance. It is
granted discretion by law to regulate or prohibit cockpits (section 2243 of the Revised
Administrative Code). While, according to this, the municipal council may absolutely
prohibit cockpits, nevertheless, when it does not so prohibit, they are deemed to be
authorized subject to its regulation. This power to regulate includes the power to fix its
number, inasmuch as the law neither fixes it nor limits it to one.

The court sentenced the defendant to pay the plaintiff P2,000 by way of damages
on the theory that the plaintiff suffered damages because of the establishment of
defendant's cockpit. It is clearly seen from the facts set out that no cause of action exists
against the defendant. he operated his cockpit pursuant to a license issued under
ordinance No. 8, in the enactment of which he had absolutely nothing to do. lâwphi1 .nêt

The appealed judgment is reversed,, ordinance No. 8 of the municipality of

Tanauan, Leyte, is declared valid, and the defendant, is absolved from the sentence to
pay damages without special pronouncement as to the costs. So ordered.

Villa-Real, Imperial, Diaz, Laurel, Concepcion and Moran, JJ., concur.

Ermita-Malate Hotel and Motel Operators Association vs City Mayor

GR L-24693
31 July 1967
20 SCRA 849

Facts:
City of Manila enacted ordinance 4760 regulating hotel operations by requiring guests /
customers to register, to submit ID and to be subject to inspection. Apart from these, fees for the
said establishments will be increased. The lower court decided in favour of the petitioner hence
the petition for prohibition.

Issue:
Whether or not Ordinance 4760, regulating hotel-motel operations is violative of the due process
clause?

Decision:
Decision reversed and set aside. There is no question but The ordinance was a regulatory
measure. It did not prohibit motels. It merely regulated the mode in which it may conduct
business in order precisely to put an end to practices which could encourage vice and immorality.

City of Manila vs Judge Laguio

GR 118127
12 April 2005

Facts:
Malate Tourist Development Corporation (MTDC) engaged in operating hotels / motels / sostels /
lodging business filed for Declaratory Relief against City of Manila for enacting Ordinance No
7783 for violating their constitutional rights being confiscatory and invading their property
rights. The said Ordinance prohibits the establishment of certain business and for those existing
business forced to relocate outside Ermita-Malate or to convert their business to allowable
business in the area. Judge Laguio decided in favour of MTDC declaring the Ordinance ultra vires.
Hence the appeal from City of Manila.

Issue:
Whether or not Ordinance constitute a proper exercise of police power as the compulsory closure
of the motel business has no reasonable relation to the legitimate municipal interests sought to
be protected?

Decision:
Petition denied and decision of lower court affirmed. A valid ordinance must not prohibit but may
regulate trade and must not be unreasonable and for the public good. The problem is not the
establishment , it is not injurious to the health or comfort of the community, but the human
activity that may occur within its premises. The second option instructing owners to relocate
qualifies s taking w/o just compensation. The solution will not end the problem but only
relocates it. The conversion into allowed business is essentially destroying property w/o due
process and just compensation.

White Light Corporation vs City of Manila

Police Power – Not Validly Exercised – Infringement of Private Rights

On 3 Dec 1992, then Mayor Lim signed into law Ord 7774 entitled “An Ordinance” prohibiting
short time admission in hotels, motels, lodging houses, pension houses and similar
establishments in the City of Manila. White Light Corp is an operator of mini hotels and
motels who sought to have the Ordinance be nullified as the said Ordinance infringes on the
private rights of their patrons. The RTC ruled in favor of WLC. It ruled that the Ordinance
strikes at the personal liberty of the individual guaranteed by the Constitution. The City
maintains that the ordinance is valid as it is a valid exercise of police power. Under the LGC,
the City is empowered to regulate the establishment, operation and maintenance of cafes,
restaurants, beerhouses, hotels, motels, inns, pension houses, lodging houses and other
similar establishments, including tourist guides and transports. The CA ruled in favor of the
City.

ISSUE: Whether or not Ord 7774 is valid.

HELD: The SC ruled that the said ordinance is null and void as it indeed infringes upon
individual liberty. It also violates the due process clause which serves as a guaranty for
protection against arbitrary regulation or seizure. The said ordinance invades private rights.
Note that not all who goes into motels and hotels for wash up rate are really there for
obscene purposes only. Some are tourists who needed rest or to “wash up” or to freshen up.
Hence, the infidelity sought to be avoided by the said ordinance is more or less subjected
only to a limited group of people. The SC reiterates that individual rights may be adversely
affected only to the extent that may fairly be required by the legitimate demands of public
interest or public welfare.

G.R. No. L-11119 March 23, 1916

JUANA RIVERA, petitioner,
vs.
RICHARD CAMPBELL, judge of the Court of First Instance of the city of
Manila, respondent.

Vicente Santia for petitioner.

Prosecuting Attorneys Paredes and De Joya for respondent.

JOHNSON, J.:

The petition in the present case was presented for the purpose of obtaining the writ
of certiorari. The record shows that the petitioner had been convicted of a violation of
subsection (f) of section 4 of Ordinance No. 149, first by the municipal court of the city of
Manila and again by the Court of First Instance of the city of Manila. She alleged in each
court that the same was without jurisdiction to try her for the crime committed. She
admitted that she had committed the acts charged in the complaint, but denied that the
courts of the city of Manila had jurisdiction to try her for the same. Each of said courts
overruled her objection to the jurisdiction, each found her guilty of the crime charged, and
each sentenced her to pay a fine.

Upon the presentation of the petition in this court the respondent was ordered to appear
and show cause why the writ should not issue. In response to said order a demurrer was
presented.

The facts upon which the present proceeding are based seem to be as follows: That the
said Juana Rivera was charged with having willfully and unlawfully washed garments,
articles of clothing, and fabrics in the waters of that part of the Mariquina River lying
between the Santolan pumping station and the Boso-Boso dam, in the Province of Rizal,
a place then occupied by duly authorized representatives and employees of the city of
Manila, on or about May 11th, 1915, in violation of subsection (f) of section 4 of
Ordinance No. 149 of the city of Manila, in relation with the provisions of sections 6 and 7
of the same Ordinance.

Upon said complaint the municipal court found the plaintiff guilty. She appealed to the
Court of First Instance where she was again found guilty of a violation of said Ordinance.

The simple question presented in the present case is whether or not the courts of the city
of Manila have jurisdiction over the crime committed by the petitioner at the place it was
committed.

Said section 4 of paragraph (f) of said Ordinance provides as follows:

SECTION 4. The following regulations shall be observed upon all lands occupied
by any duly authorized representative, officer, or employee of the city of Manila:

xxx xxx xxx

(f) Bathing in water courses. — All persons are prohibited from bathing in the river
and water courses. The washing of garments, articles of clothing, and fabrics in
the waters of any river or water course is prohibited.

Said section of said Ordinance was adopted by the municipal board of the city of Manila
in pursuance of the power conferred upon it by authority of the provisions of paragraphs
(w) and (cc) of section 17 of Act No. 183, and paragraph (i) of section 3 of Act No. 1150
of the Philippine Commission.
Section 17 and paragraph (w) and (cc) provide:

SEC. 17 . . . . In addition to the foregoing the board (municipal) shall have the
following general powers:

xxx xxx xxx

(w) To maintain waterworks for the purpose of supplying water to the inhabitants
of the city (of Manila), to purify the source of supply, and regulate the control and
use of the water, and to fix and collect rents therefor; to regulate the construction,
repair, and use of hydrants, pumps, cisterns, and reservoirs, and to prevent the
waste of water.

xxx xxx xxx

(cc) To extend and enforce all its ordinances over all waters within the city, . . .
and for the purpose of protecting and insuring the purity of the water supply of the
city, to extend and enforce ordinances to that end over all territory within
the drainage area of such water supply, or within one hundred meters of any
reservoir, conduit, canal, aqueduct, or pumping station used in connection with
the city water service.

The municipal board was further authorized to protect the purity of the water supply of the
city of Manila, by Act No. 1150 of the Philippine Commission. Section 3 of said Act
provides:

SEC. 3 (Act No. 1150.) The ordinances drafted by the Board of Health may
provide for:

xxx xxx xxx

(i) Protection from infection of all public and private water supplies and sources,
and prohibition of the use of water of dangerous character of domestic purposes.
Ordinances enacted for the purpose of protecting the purity of the water supply of
Manila shall apply to and be enforced over all territory within the drainage area of
such water supply or within one hundred meters of any reservoir, conduit, canal,
aqueduct, or pumping station used in connection with the city water service."

It is admitted that during the dry season, the city of Manila was obliged to use, in addition
to the natural water supply from Boso-Boso dam, the water from Mariquina River; that the
water was taken out of the Mariquina Rivera by means of a pumping station located
some distance below Boso-Boso dam, and that the petitioner was found washing her
clothing between the said pumping station and Boso-Boso dam. It is clear, therefore, that
she was guilty of interfering with the purity of the water which was supplied to the city of
Manila by said pumping station.

With reference to the jurisdiction of the courts of the city of Manila over said territory, it
may be noted that section 6 of said Ordinance No. 149, expressly confers upon the
municipal court of the city of Manila power to try any violation of any of its provisions.
Section 7 of said ordinance provides the penalty for its violation.

When the question of the jurisdiction of the Court of First Instance of the city of Manila
was presented to the lower court, Judge Campbell, the respondent herein, in a very well-
reasoned opinion, reached the conclusion that the court had jurisdiction over the
petitioner and the offense committed, and sentenced her to pay a fine of P50 and costs,
and in case of insolvency to suffer subsidiary imprisonment. In the course of his opinion,
Judge Campbell said:

It is beyond question that by washing garments, articles of clothing, and fabrics in

the Mariquina River, as shown above, the defendant committed a violation of
paragraph (f) of section 4 of Ordinance No. 149 of the city of Manila, in
connection with sections 6 and 7 thereof. The Santolan pumping station is a part
of the public water supply of the city of Manila which is used in supplying the
inhabitants of the city with water taken from that part of the Mariquina River
during the dry reason, in the waters of which the defendant washed articles of
clothing. According to American authorities, the true meaning of the phrase public
water supply is as follows:

'Public was supply is not limited to water supply owned and controlled by a
municipal corporation, but should be construed as meaning a supply of water for
public and domestic use, furnished or to be furnished from waterworks.' (State vs.
Township etc., 52 N. J. Law, 496; 19 Atl. Rep., 975.)

The provisions of Ordinance No. 149 of the city of Manila and the Acts of the
Philippine Commission upon which it is based would be meaningless and almost
absurd if made applicable only to the Santolan pumping station and not to that
part of the Mariquina River immediately above it and from which the said
pumping station draws water for the use of the inhabitants of the city of Manila
during the dry season, considering that the policy and purpose of said ordinance
is the protection of the public health in the said city.

According to American decisions on the construction of statutes: `Every statute

must be construed with reference to the object intended to be accomplished by it.
In order to ascertain this object it is proper to consider the occasion and necessity
of its enactment, . . . . and the statute should be given that construction which is
best calculated to advance its object, by suppressing the mischief and securing
the benefits intended.' (36 Cyc., 1110, 1111.)

That the Court of First Instance of the city of Manila has jurisdiction to try the
offense under consideration, although committed in the Province of Rizal, by
virtue of the provisions of said ordinance (149), based upon paragraphs (w) and
(cc), of section 17 of Act No. 183, and paragraph (i) f section 3 of Act No. 1150 of
the Philippine Commission can not be disputed, if we simply take into
consideration the following rule, which has been pronounced on many occasions,
in relation to the same question, by many courts:

'The corporation boundaries usually mark the limit for the exercise of the police
power by the municipality; but in many instances because essential to the
statutory performance of police functions, and especially for the preservation of
the public health, the municipality is granted police power beyond its boundaries.
Thus it has been held that the grant of power to acquire territory for water supply
beyond the limits of the municipality is within the competency of the legislature,
and that the municipality may exercise police power in the protection of the
territory thus acquired to insure cleanliness, and prevent any business and
conduct likely to corrupt the fountain of water supply for the city.' (28 Cyc., 703,
704.)

After a consideration of the facts and the law applicable thereto and the general power
conferred upon the city of Manila, we are fully persuaded that the municipal court of the
city of Manila, as well as the Court of First Instance of the city of Manila, has jurisdiction
to hear and determine the question presented by the complaint originally presented
against the petitioner. Therefore the petition for the writ of certiorari is hereby denied, with
costs. So ordered.

Torres, Moreland, Trent, and Araullo, JJ., concur.

Vicente dela cruz vs Edgardo paras

Subject Shall Be Expressed in the Title – Police Power Not Validly Exercise
De La Cruz et al were club & cabaret operators. They assail the constitutionality of Ord. No.
84, Ser. of 1975 or the Prohibition and Closure Ordinance of Bocaue, Bulacan. De la Cruz
averred that the said Ordinance violates their right to engage in a lawful business for the said
ordinance would close out their business. That the hospitality girls they employed are healthy
and are not allowed to go out with customers. Judge Paras however lifted the TRO he earlier
issued against Ord. 84 after due hearing declaring that Ord 84. is constitutional for it is
pursuant to RA 938 which reads “AN ACT GRANTING MUNICIPAL OR CITY BOARDS AND
COUNCILS THE POWER TO REGULATE THE ESTABLISHMENT, MAINTENANCE AND
OPERATION OF CERTAIN PLACES OF AMUSEMENT WITHIN THEIR RESPECTIVE
TERRITORIAL JURISDICTIONS”. Paras ruled that the prohibition is a valid exercise of police
power to promote general welfare. De la Cruz then appealed citing that they were deprived of
due process.

ISSUE: Whether or not a municipal corporation, Bocaue, Bulacan can, prohibit the exercise
of a lawful trade, the operation of night clubs, and the pursuit of a lawful occupation, such
clubs employing hostesses pursuant to Ord 84 which is further in pursuant to RA 938.
HELD: The SC ruled against Paras. If night clubs were merely then regulated and not
prohibited, certainly the assailed ordinance would pass the test of validity. SC had stressed
reasonableness, consonant with the general powers and purposes of municipal corporations,
as well as consistency with the laws or policy of the State. It cannot be said that such a
sweeping exercise of a lawmaking power by Bocaue could qualify under the term reasonable.
The objective of fostering public morals, a worthy and desirable end can be attained by a
measure that does not encompass too wide a field. Certainly the ordinance on its face is
characterized by overbreadth. The purpose sought to be achieved could have been attained
by reasonable restrictions rather than by an absolute prohibition. Pursuant to the title of the
Ordinance, Bocaue should and can only regulate not prohibit the business of cabarets.

Balacuit vs Court of First Instance

GR L-38429
30 June 1988

Facts:
The Municipal Board of City of Butuan passed Oridinance No 640 on 21 April 1969, “penalizing
any person , group of persons , entity or engeged in the business of selling admission tickets to
any movie… to require children between 7-12 years of age to pay full payment for ticket should
only be charged one half.” Petitioners Carlos Balacuit , et al as managers of theaters assailed the
validity and constitutionality of the said ordinance. The court adjudged in favour of the
respondents hence the petition for review. Petitioners contend that it violates due process clause
of the Constitution for being oppressive , unfair , unjust, confiscatory and an undue restraint of
trade.

Issue:
Whether or not Ordinance 640 – prohibiting selling of theatre admission tickets to children 7-12
y/o at full price is constitutional or not?

Decision:
Decision reversed. Ordinance 640 declared unconstitutional. For the assailed ordinance be held
constitutional it must pass the test of police power. To invoke the exercise the police power, it
must be for the interest of the public without interfering with private rights and adoptive means
must be reasonably necessary for the accomplishment of the purpose and not unduly oppressive
upon individuals.

While it is true that a business may be regulated, it is equally true that such regulation must be
within the bounds of reason, that is, the regulatory ordinance must be reasonable, and its
provisions cannot be oppressive amounting to an arbitrary interference with the business or
calling subject of regulation. The right of the owner to fix a price at which his property shall be
sold or used is an inherent attribute of the property itself and, as such, within the protection of
the due process clause. Hence, the proprietors of a theater have a right to manage their property
in their own way, to fix what prices of admission they think most for their own advantage, and
that any person who did not approve could stay away.

Magtajas vs Pryce Properties

GR 111097
20 July 1994
234 SCRA 255

Facts:
Sangguniang Panglungsod of Cagayan de Oro City, enacted Ordinance No 3353 to prohibit the
impending opening of PAGCOR casino in the said city as this is an affront to the welfare of the city.
Pryce Properties, lessee and operator of the casino assailed the validity of the ordinance. CA
decided in favour of Pryce and issued writ to prohibit enforcement. Motion to reconsider was also
denied. Hence, CDO and its mayor filed petition for review.

Issue:
Whether or not Ordinance 3353 enacted by Local Government prohibit casino operation by
repealing PD1869 enacted by Congress to promote general welfare?

Decision:
Petition denied. CA decision affirmed. Ordinance 3353 declared void. the power of PAGCOR to
centralize and regulate all games of chance, including casinos on land and sea within the
territorial jurisdiction of the Philippines, remains unimpaired. P.D. 1869 has not been modified by
the Local Government Code, which empowers the local government units to prevent or suppress
only those forms of gambling prohibited by law. Casino gambling is authorized by P.D. 1869. This
decree has the status of a statute that can’t be amended or nullified by mere ordinance.

People vs fajardo

Facts: The municipal council of baao, camarines sur stating

among others that construction of a building, which will destroy the
view of the plaza, shall not be allowed and therefore be destroyed
at the expense of the owner, enacted an ordinance. Herein
appellant filed a written request with the incumbent municipal
mayor for a permit to construct a building adjacent to their gasoline
station on a parcel of land registered in Fajardo's name, located
along the national highway and separated from the public plaza by
a creek. The request was denied, for the reason among others that
the proposed building would destroy the view or beauty of the
public plaza. Defendants reiterated their request for a building
permit, but again the mayor turned down the request. Whereupon,
appellants proceeded with the construction of the building without a
permit, because they needed a place of residence very badly, their
former house having been destroyed by a typhoon and hitherto they
had been living on leased property. Thereafter, defendants were
charged in violation of the ordinance and subsequently convicted.
Hence this appeal.

Issue: Whether or Not the ordinance is a valid exercise of police

power.

Held: No. It is not a valid exercise of police power. The ordinance

is unreasonable and oppressive, in that it operates to permanently
deprive appellants of the right to use their own property; hence, it
oversteps the bounds of police power, and amounts to a taking of
appellant’s property without just compensation. We do not overlook
that the modern tendency is to regard the beautification of
neighborhoods as conducive to the comfort and happiness of
residents.

As the case now stands, every structure that may be erected on

appellants' land, regardless of its own beauty, stands condemned
under the ordinance in question, because it would interfere with the
view of the public plaza from the highway. The appellants would, in
effect, be constrained to let their land remain idle and unused for
the obvious purpose for which it is best suited, being urban in
character. To legally achieve that result, the municipality must give
appellants just compensation and an opportunity to be heard.

December 21, 1915

G.R. No. L-10572

FRANCIS A. CHURCHILL and STEWART TAIT, plaintiffs-appellees,
vs.
JAMES J. RAFFERTY, Collector of Internal Revenue, defendant-appellant.

Attorney-General Avanceña 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.”

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:

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

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

If we are in error as to the scope of paragraph 2 and 7, supra, and the Commission did
intend to confer the power upon the courts to restrain the collection of taxes, it does not
necessarily follow that this power or jurisdiction has been taken away by section 139 of Act
No. 2339, for the reason that all agree that an injunction will not issue in any case if there
is an adequate remedy at law. The very nature of the writ itself prevents its issuance
under such circumstances. Legislation forbidding the issuing of injunctions in such cases is
unnecessary. So the only question to be here determined is whether the remedy provided
for in section 140 of Act No. 2339 is adequate. If it is, the writs which form the basis of
this appeal should not have been issued. If this is the correct view, the authority to issue
injunctions will not have been taken away by section 139, but rendered inoperative only by
reason of an adequate remedy having been made available.

The legislative body of the Philippine Islands has declared from the beginning (Act No. 82)
that payment under protest and suit to recover is an adequate remedy to test the legality
of any tax or impost, and that this remedy is exclusive. Can we say that the remedy is not
adequate or that it is not exclusive, or both? The plaintiffs in the case at bar are the first,
in so far as we are aware, to question either the adequacy or exclusiveness of this remedy.
We will refer to a few cases in the United States where statutes similar to sections 139 and
140 have been construed and applied.

In May, 1874, one Bloomstein presented a petition to the circuit court sitting in Nashville,
Tennessee, stating that his real and personal property had been assessed for state taxes in
the year 1872 to the amount of $132.60; that he tendered to the collector this amount in
“funds receivable by law for such purposes;” and that the collector refused to receive the
same. He prayed for an alternative writ of mandamus to compel the collector to receive
the bills in payment for such taxes, or to show cause to the contrary. To this petition the
collector, in his answer, set up the defense that the petitioner’s suit was expressly
prohibited by the Act of the General Assembly of the State of Tennessee, passed in 1873.
The petition was dismissed and the relief prayed for refused. An appeal to the supreme
court of the State resulted in the affirmance of the judgment of the lower court. The case
was then carried to the Supreme Court of the United States (Tennessee vs. Sneed, 96 U.
S., 69), where the judgment was again affirmed.

The two sections of the Act of [March 21,] 1873, drawn in question in that cases, read as
follows:

1. That in all cases in which an officer, charged by law with the collection of revenue due
the State, shall institute any proceeding, or take any steps for the collection of the same,
alleged or claimed to be due by said officer from any citizen, the party against whom the
proceeding or step is taken shall, if he conceives the same to be unjust or illegal, or
against any statute or clause of the Constitution of the State, pay the same under protest;
and, upon his making said payment, the officer or collector shall pay such revenue into the
State Treasury, giving notice at the time of payment to the Comptroller that the same was
paid under protest; and the party paying said revenue may, at any time within thirty days
after making said payment, and not longer thereafter, sue the said officer having collected
said sum, for the recovery thereof. And the same may be tried in any court having the
jurisdiction of the amount and parties; and, if it be determined that the same was
wrongfully collected, as not being due from said party to the State, for any reason going to
the merits of the same, then the court trying the case may certify of record that the same
was wrongfully paid and ought to be refunded; and thereupon the Comptroller shall issue
his warrant for the same, which shall be paid in preference to other claims on the
Treasury.

2. That there shall be no other remedy, in any case of the collection of revenue, or attempt
to collect revenue illegally, or attempt to collect revenue in funds only receivable by said
officer under the law, the same being other or different funds than such as the tax payer
may tender, or claim the right to pay, than that above provided; and no writ for the
prevention of the collection of any revenue claimed, or to hinder or delay the collection of
the same, shall in anywise issue, either injunction, supersedeas, prohibition, or any other
writ or process whatever; but in all cases in which, for any reason, any person shall claim
that the tax so collected was wrongfully or illegally collected, the remedy for said party
shall be as above provided, and in no other manner.”

In discussing the adequacy of the remedy provided by the Tennessee Legislature, as above
set forth, the Supreme Court of the United States, in the case just cited, said: “This
remedy is simple and effective. A suit at law to recover money unlawfully exacted is as
speedy, as easily tried, and less complicated than a proceeding by mandamus. … In
revenue cases, whether arising upon its (United States) Internal Revenue Laws or those
providing for the collection of duties upon foreign imports, it (United States) adopts the
rule prescribed by the State of Tennessee. It requires the contestant to pay the amount as
fixed by the Government, and gives him power to sue the collector, and in such suit to test
the legality of the tax. There is nothing illegal or even harsh in this. It is a wise and
reasonable precaution for the security of the Government.”

Thomas C. Platt commenced an action in the Circuit Court of the United States for the
Eastern District of Tennessee to restrain the collection of a license tax from the company
which he represented. The defense was that sections 1 and 2 of the Act of 1873, supra,
prohibited the bringing of that suit. This case also reached the Supreme Court of the
United States. (Shelton vs. Platt, 139 U. 591.) In speaking of the inhibitory provisions of
sections 1 and 2 of the Act of 1873, the court said: “This Act has been sanctioned and
applied by the Courts of Tennessee. (Nashville vs. Smith, 86 Tenn., 213; Louisville & N. R.
Co. vs. State, 8 Heisk., 663, 804.) It is, as counsel observe, similar to the Act of Congress
forbidding suit for the purpose of restraining the assessment or collection of taxes under
the Internal Revenue Laws, in respect to which this court held that the remedy by suit to
recover back the tax after payment, provided for by the Statute, was exclusive. (Snyder
vs. Marks, of this character has been called for by the embarrassments resulting from the
improvident employment of the writ of injunction in arresting the collection of the public
revenue; and, even in its absence, the strong arm of the court of chancery ought not to be
interposed in that direction except where resort to that court is grounded upon the settled
principles which govern its jurisdiction.”

In Louisville & N.R. Co. vs. State (8 Heisk. [64 Tenn.], 663, 804), cited by the Supreme
Court of the United States in Shelton vs. Platt, supra, the court said: “It was urged that
this statute (sections 1 and 2 of the Act of 1873, supra) is unconstitutional and void, as it
deprives the citizen of the remedy by certiorari, guaranteed by the organic law.”

By the 10th section of the sixth article of the Constitution, [Tennessee] it is provided that:
“The judges or justices of inferior courts of law and equity shall have power in all civil
cases to issue writs of certiorari, to remove any cause, or the transcript of the record
thereof, from any inferior jurisdiction into such court of law, on sufficient cause, supported
by oath or affirmation.”

The court held the act valid as not being in conflict with these provisions of the State
constitution.

In Eddy vs. The Township of Lee (73 Mich., 123), the complainants sought to enjoin the
collection of certain taxes for the year 1886. The defendants, in support of their demurrer,
insisted that the remedy by injunction had been taken away by section 107 of the Act of
1885, which section reads as follows: “No injunction shall issue to stay proceedings for the
assessment or collection of taxes under this Act.”

It was claimed by the complainants that the above quoted provisions of the Act of 1885
were unconstitutional and void as being in conflict with article 6, sec. 8, of the
Constitution, which provides that: “The circuit courts shall have original jurisdiction in all
matters, civil and criminal, not excepted in this Constitution, and not prohibited by law. …
They shall also have power to issue writs of habeas corpus, mandamus, injunction, quo
warranto, certiorari, and other writs necessary to carry into effect their orders, judgments,
and decrees.”

Mr. Justice Champlin, speaking for the court, said: “I have no doubt that the Legislature
has the constitutional authority, where it has provided a plain, adequate, and complete
remedy at law to recover back taxes illegally assessed and collected, to take away the
remedy by injunction to restrain their collection.”

Section 9 of the Philippine Bill reads in part as follows: “That the Supreme Court and the
Courts of First Instance of the Philippine Islands shall possess and exercise jurisdiction as
heretofore provided and such additional jurisdiction as shall hereafter be prescribed by the
Government of said Islands, subject to the power of said Government to change the
practice and method of procedure.”

It will be seen that this section has not taken away from the Philippine Government the
power to change the practice and method of procedure. If sections 139 and 140,
considered together, and this must always be done, are nothing more than a mode of
procedure, then it would seem that the Legislature did not exceed its constitutional
authority in enacting them. Conceding for the moment that the duly authorized procedure
for the determination of the validity of any tax, impost, or assessment was by injunction
suits and that this method was available to aggrieved taxpayers prior to the passage of Act
No. 2339, may the Legislature change this method of procedure? That the Legislature has
the power to do this, there can be no doubt, provided some other adequate remedy is
substituted in lieu thereof. In speaking of the modes of enforcing rights created by
contracts, the Supreme Court of the United States, in Tennessee vs. Sneed, supra, said:
“The rule seems to be that in modes of proceedings and of forms to enforce the contract
the Legislature has the control, and may enlarge, limit or alter them, provided that it does
not deny a remedy, or so embarrass it with conditions and restrictions as seriously to
impair the value of the right.”

In that case the petitioner urged that the Acts of 1873 were laws impairing the obligation
of the contract contained in the charter of the Bank of Tennessee, which contract was
entered into with the State in 1838. It was claimed that this was done by placing such
impediments and obstructions in the way of its enforcement, thereby so impairing the
remedies as practically to render the obligation of no value. In disposing of this contention,
the court said: “If we assume that prior to 1873 the relator had authority to prosecute his
claim against the State by mandamus, and that by the statutes of that year the further use
of that form was prohibited to him, the question remains. whether an effectual remedy
was left to him or provided for him. We think the regulation of the statute gave him an
abundant means of enforcing such right as he possessed. It provided that he might pay his
claim to the collector under protest, giving notice thereof to the Comptroller of the
Treasury; that at any time within thirty days thereafter he might sue the officer making
the collection; that the case should be tried by any court having jurisdiction and, if found
in favor of the plaintiff on the merits, the court should certify that the same was wrongfully
paid and ought to be refunded and the Comptroller should thereupon issue his warrant
therefor, which should be paid in preference to other claim on the Treasury.”
But great stress is laid upon the fact that the plaintiffs in the case under consideration are
unable to pay the taxes assessed against them and that if the law is enforced, they will be
compelled to suspend business. This point may be best answered by quoting from the case
of Youngblood vs. Sexton (32 Mich., 406), wherein Judge Cooley, speaking for the court,
said: “But if this consideration is sufficient to justify the transfer of a controversy from a
court of law to a court of equity, then every controversy where money is demanded may
be made the subject of equitable cognizance. To enforce against a dealer a promissory
note may in some cases as effectually break up his business as to collect from him a tax of
equal amount. This is not what is known to the law as irreparable injury. The courts have
never recognized the consequences of the mere enforcement of a money demand as falling
within that category.”

Certain specified sections of Act No. 2339 were amended by Act No. 2432, enacted
December 23, 1914, effective January 1, 1915, by imposing increased and additional
taxes. Act No. 2432 was amended, were ratified by the Congress of the United States on
March 4, 1915. The opposition manifested against the taxes imposed by Acts Nos. 2339
and 2432 is a matter of local history. A great many business men thought the taxes thus
imposed were too high. If the collection of the new taxes on signs, signboards, and
billboards may be restrained, we see no well-founded reason why injunctions cannot be
granted restraining the collection of all or at least a number of the other increased taxes.
The fact that this may be done, shows the wisdom of the Legislature in denying the use of
the writ of injunction to restrain the collection of any tax imposed by the Acts. When this
was done, an equitable remedy was made available to all dissatisfied taxpayers.

The question now arises whether, the case being one of which the court below had no
jurisdiction, this court, on appeal, shall proceed to express an opinion upon the validity of
provisions of subsection (b) of section 100 of Act No. 2339, imposing the taxes complained
of. As a general rule, an opinion on the merits of a controversy ought to be declined when
the court is powerless to give the relief demanded. But it is claimed that this case is, in
many particulars, exceptional. It is true that it has been argued on the merits, and there is
no reason for any suggestion or suspicion that it is not a bona fide controversy. The legal
points involved in the merits have been presented with force, clearness, and great ability
by the learned counsel of both sides. If the law assailed were still in force, we would feel
that an opinion on its validity would be justifiable, but, as the amendment became
effective on January 1, 1915, we think it advisable to proceed no further with this branch
of the case.

The next question arises in connection with the supplementary complaint, the object of
which is to enjoin the Collector of Internal Revenue from removing certain billboards, the
property of the plaintiffs located upon private lands in the Province of Rizal. The plaintiffs
allege that the billboards here in question “in no sense constitute a nuisance and are not
deleterious to the health, morals, or general welfare of the community, or of any persons.”
The defendant denies these allegations in his answer and claims that after due
investigation made upon the complaints of the British and German Consuls, he “decided
that the billboard complained of was and still is offensive to the sight, and is otherwise a
nuisance.” The plaintiffs proved by Mr. Churchill that the “billboards were quite a distance
from the road and that they were strongly built, not dangerous to the safety of the people,
and contained no advertising matter which is filthy, indecent, or deleterious to the morals
of the community.” The defendant presented no testimony upon this point. In the agreed
statement of facts submitted by the parties, the plaintiffs “admit that the billboards
mentioned were and still are offensive to the sight.”

The pertinent provisions of subsection (b) of section 100 of Act No. 2339 read: “If after
due investigation the Collector of Internal Revenue shall decide that any sign, signboard,
or billboard displayed or exposed to public view is offensive to the sight or is otherwise a
nuisance, he may by summary order direct the removal of such sign, signboard, or
billboard, and if same is not removed within ten days after he has issued such order he my
himself cause its removal, and the sign, signboard, or billboard shall thereupon be forfeited
to the Government, and the owner thereof charged with the expenses of the removal so
effected. When the sign, signboard, or billboard ordered to be removed as herein provided
shall not comply with the provisions of the general regulations of the Collector of Internal
Revenue, no rebate or refund shall be allowed for any portion of a year for which the tax
may have been paid. Otherwise, the Collector of Internal Revenue may in his discretion
make a proportionate refund of the tax for the portion of the year remaining for which the
taxes were paid. An appeal may be had from the order of the Collector of Internal Revenue
to the Secretary of Finance and Justice whose decision thereon shall be final.”

The Attorney-General, on behalf of the defendant, says: “The question which the case
presents under this head for determination, resolves itself into this inquiry: Is the
suppression of advertising signs displayed or exposed to public view, which are admittedly
offensive to the sight, conducive to the public interest?”

And cunsel for the plaintiffs states the question thus: “We contend that that portion of
section 100 of Act No. 2339, empowering the Collector of Internal Revenue to remove
billboards as nuisances, if objectionable to the sight, is unconstitutional, as constituting a
deprivation of property without due process of law.”

From the position taken by counsel for both sides, it is clear that our inquiry is limited to
the question whether the enactment assailed by the plaintiffs was a legitimate exercise of
the police power of the Government; for all property is held subject to that power.

As a consequence of the foregoing, all discussion and authorities cited, which go to the
power of the state to authorize administrative officers to find, as a fact, that legitimate
trades, callings, and businesses are, under certain circumstances, statutory nuisances, and
whether the procedure prescribed for this purpose is due process of law, are foreign to the
issue here presented.

There can be no doubt that the exercise of the police power of the Philippine Government
belongs to the Legislature and that this power is limited only by the Acts of Congress and
those fundamentals principles which lie at the foundation of all republican forms of
government. An Act of the Legislature which is obviously and undoubtedly foreign to any of
the purposes of the police power and interferes with the ordinary enjoyment of property
would, without doubt, be held to be invalid. But where the Act is reasonably within a
proper consideration of and care for the public health, safety, or comfort, it should not be
disturbed by the courts. The courts cannot substitute their own views for what is proper in
the premises for those of the Legislature. In Munn vs. Illinois (94 U.S., 113), the United
States Supreme Court states the rule thus: “If no state of circumstances could exist to
justify such statute, then we may declare this one void because in excess of the legislative
power of this state; but if it could, we must presume it did. Of the propriety of legislative
interference, within the scope of the legislative power, a legislature is the exclusive judge.”

This rule very fully discussed and declared in Powell vs. Pennsylvania (127 U.S., 678) –
“oleo-margarine” case. (See also Crowley vs. Christensen, 137 U.S., 86, 87; Camfield vs.
U.S., 167 U.S., 518.) While the state may interfere wherever the public interests demand
it, and in this particular a large discretion is necessarily vested in the legislature to
determine, not only what the interest of the public require, but what measures are
necessary for the protection of such interests; yet, its determination in these matters is
not final or conclusive, but is subject to the supervision of the courts. (Lawton vs. Steele,
152 U.S., 133.) Can it be said judicially that signs, signboards, and billboards, which are
admittedly offensive to the sight, are not with the category of things which interfere with
the public safety, welfare, and comfort, and therefore beyond the reach of the police power
of the Philippine Government?

The numerous attempts which have been made to limit by definition the scope of the
police power are only interesting as illustrating its rapid extension within comparatively
recent years to points heretofore deemed entirely within the field of private liberty and
property rights. Blackstone’s definition of the police power was as follows: “The due
regulation and domestic order of the kingdom, whereby the individuals of the state, like
members of a well governed family, are bound to conform their general behavior to the
rules of propriety, good neigborhood, and good manners, to be decent, industrious, and
inoffensive in their respective stations.” (Commentaries, vol. 4, p. 162.)

Chanceller Kent considered the police power the authority of the state “to regulate
unwholesome trades, slaughter houses, operations offensive to the senses.” Chief Justice
Shaw of Massachusetts defined it as follows: “The power vested in the legislature by the
constitution to make, ordain, and establish all manner of wholesome and reasonable laws,
statutes, and ordinances, either with penalties or without, not repugnant to the
constitution, as they shall judge to be for the good and welfare of the commonwealth, and
of the subjects of the same.” (Com. vs. Alger, 7 Cush., 53.)

In the case of Butchers’ Union Slaughter-house, etc. Co. vs. Crescent City Live Stock
Landing, etc. Co. (111 U.S., 746), it was suggested that the public health and public
morals are matters of legislative concern of which the legislature cannot divest itself. (See
State vs. Mountain Timber Co. [1913], 75 Wash., 581, where these definitions are
collated.)

In Champer vs. Greencastle (138 Ind., 339), it was said: “The police power of the State,
so far, has not received a full and complete definition. It may be said, however, to be the
right of the State, or state functionary, to prescribe regulations for the good order, peace,
health, protection, comfort, convenience and morals of the community, which do not …
violate any of the provisions of the organic law.” (Quoted with approval in Hopkins vs.
Richmond [Va., 1915], 86 S.E., 139.)

In Com. vs. Plymouth Coal Co. ([1911] 232 Pa., 141), it was said: “The police power of the
state is difficult of definition, but it has been held by the courts to be the right to prescribe
regulations for the good order, peace, health, protection, comfort, convenience and morals
of the community, which does not encroach on a like power vested in congress or state
legislatures by the federal constitution, or does not violate the provisions of the organic
law; and it has been expressly held that the fourteenth amendment to the federal
constitution was not designed to interfere with the exercise of that power by the state.”

In People vs. Brazee ([Mich., 1914], 149 N.W., 1053), it was said: “It [the police power]
has for its object the improvement of social and economic conditioned affecting the
community at large and collectively with a view to bring about “he greatest good of the
greatest number.”Courts have consistently and wisely declined to set any fixed limitations
upon subjects calling for the exercise of this power. It is elastic and is exercised from time
to time as varying social conditions demand correction.”

In 8 Cyc., 863, it is said: “Police power is the name given to that inherent sovereignty
which it is the right and duty of the government or its agents to exercise whenever public
policy, in a broad sense, demands, for the benefit of society at large, regulations to guard
its morals, safety, health, order or to insure in any respect such economic conditions as an
advancing civilization of a high complex character requires.” (As quoted with approval in
Stettler vs. O’Hara [1914], 69 Ore, 519.)

Finally, the Supreme Court of the United States has said in Noble State Bank vs. Haskell
(219 U.S. [1911], 575: “It may be said in a general way that the police power extends to
all the great public needs. It may be put forth in aid of what is sanctioned by usage, or
held by the prevailing morality or strong and preponderant opinion to be greatly and
immediately necessary to the public welfare.”

This statement, recent as it is, has been quoted with approval by several courts.
(Cunningham vs. Northwestern Imp. Co. [1911], 44 Mont., 180; State vs. Mountain
Timber Co. [1913], 75 Wash., 581; McDavid vs. Bank of Bay Minette [Ala., 1915], 69
Sou., 452; Hopkins vs. City of Richmond [Va., 1915], 86 S.E., 139; State vs. Philipps
[Miss. 1915], 67 Sou., 651.)

It was said in Com. vs. Alger (7 Cush., 53, 85), per Shaw, C.J., that: “It is much easier to
perceive and realize the existence and sources of this police power than to mark its
boundaries, or to prescribe limits to its exercise.” In Stone vs. Mississippi (101 U.S., 814),
it was said: “Many attempts have been made in this court and elsewhere to define the
police power, but never with entire success. It is always easier to determine whether a
particular case comes within the general scope of the power, than to give an abstract
definition of the power itself, which will be in all respects accurate.”
Other courts have held the same vow of efforts to evolve a satisfactory definition of the
police power. Manifestly, definitions which fail to anticipate cases properly within the scope
of the police power are deficient. It is necessary, therefore, to confine our discussion to the
principle involved and determine whether the cases as they come up are within that
principle. The basic idea of civil polity in the United States is that government should
interfere with individual effort only to the extent necessary to preserve a healthy social
and economic condition of the country. State interference with the use of private property
may be exercised in three ways. First, through the power of taxation, second, through the
power of eminent domain, and third, through the police power. Buy the first method it is
assumed that the individual receives the equivalent of the tax in the form of protection and
benefit he receives from the government as such. By the second method he receives the
market value of the property taken from him. But under the third method the benefits he
derived are only such as may arise from the maintenance of a healthy economic standard
of society and is often referred to as damnum absque injuria. (Com. vs. Plymouth Coal Co.
232 Pa., 141; Bemis vs. Guirl Drainage Co., 182 Ind., 36.) There was a time when state
interference with the use of private property under the guise of the police power was
practically confined to the suppression of common nuisances. At the present day, however,
industry is organized along lines which make it possible for large combinations of capital to
profit at the expense of the socio-economic progress of the nation by controlling prices and
dictating to industrial workers wages and conditions of labor. Not only this but the
universal use of mechanical contrivances by producers and common carriers has
enormously increased the toll of human life and limb in the production and distribution of
consumption goods. To the extent that these businesses affect not only the public health,
safety, and morals, but also the general social and economic life of the nation, it has been
and will continue to be necessary for the state to interfere by regulation. By so doing, it is
true that the enjoyment of private property is interfered with in no small degree and in
ways that would have been considered entirely unnecessary in years gone by. The
regulation of rates charged by common carriers, for instance, or the limitation of hours of
work in industrial establishments have only a very indirect bearing upon the public health,
safety, and morals, but do bear directly upon social and economic conditions. To permit
each individual unit of society to feel that his industry will bring a fair return; to see that
his work shall be done under conditions that will not either immediately or eventually ruin
his health; to prevent the artificial inflation of prices of the things which are necessary for
his physical well being are matters which the individual is no longer capable of attending to
himself. It is within the province of the police power to render assistance to the people to
the extent that may be necessary to safeguard these rights. Hence, laws providing for the
regulation of wages and hours of labor of coal miners (Rail & River Coal Co. vs. Taylor, 234
U.S., 224); requiring payment of employees of railroads and other industrial concerns in
legal tender and requiring salaries to be paid semimonthly (Erie R.R. Co. vs. Williams, 233
U.S., 685); providing a maximum number of hours of labor for women (Miller vs. Wilson,
U.S. Sup. Ct. [Feb. 23, 1915], Adv. Opns., p. 342); prohibiting child labor (Sturges & Burn
vs. Beauchamp, 231 U.S., 320); restricting the hours of labor in public laundries (In re
Wong Wing, 167 Cal., 109); limiting hours of labor in industrial establishment generally
(State vs. Bunting, 71 Ore., 259); Sunday Closing Laws (State vs. Nicholls [Ore., 1915],
151 Pac., 473; People vs. C. Klinck Packing Co. [N.Y., 1915], 108 N. E., 278; Hiller vs.
State [Md., 1914], 92 Atl., 842; State vs. Penny, 42 Mont., 118; City of Springfield vs.
Richter, 257 Ill., 578, 580; State vs. Hondros [S.C., 1915], 84 S.E., 781); have all been
upheld as a valid exercise of the police power. Again, workmen’s compensation laws have
been quite generally upheld. These statutes discard the common law theory that
employers are not liable for industrial accidents and make them responsible for all
accidents resulting from trade risks, it being considered that such accidents are a
legitimate charge against production and that the employer by controlling the prices of his
product may shift the burden to the community. Laws requiring state banks to join in
establishing a depositors’ guarantee fund have also been upheld by the Federal Supreme
Court in Noble State Bank vs. Haskell (219 U. S., 104), and Assaria State Bank vs. Dolley
(219 U.S., 121).

Offensive noises and smells have been for a long time considered susceptible of
suppression in thickly populated districts. Barring livery stables from such locations was
approved of in Reinman vs. Little Rock (U.S. Sup. Ct. [Apr. 5, 1915], U.S. Adv. Opns., p.
511). And a municipal ordinance was recently upheld (People vs. Ericsson, 263 Ill., 368),
which prohibited the location of garages within two hundred feet of any hospital, church,
or school, or in any block used exclusively for residential purposes, unless the consent of
the majority of the property owners be obtained. Such statutes as these are usually upheld
on the theory of safeguarding the public health. But we apprehend that in point of fact
they have little bearing upon the health of the normal person, but a great deal to do with
his physical comfort and convenience and not a little to do with his peace of mind. Without
entering into the realm of psychology, we think it quite demonstrable that sight is as
valuable to a human being as any of his other senses, and that the proper ministration to
this sense conduces as much to his contentment as the care bestowed upon the senses of
hearing or smell, and probably as much as both together. Objects may be offensive to the
eye as well as to the nose or ear. Man’s esthetic feelings are constantly being appealed to
through his sense of sight. Large investments have been made in theaters and other forms
of amusement, in paintings and spectacular displays, the success of which depends in
great part upon the appeal made through the sense of sight. Moving picture shows could
not possible without the sense of sight. Governments have spent millions on parks and
boulevards and other forms of civic beauty, the first aim of which is to appeal to the sense
of sight. Why, then, should the Government not interpose to protect from annoyance this
most valuable of man’s senses as readily as to protect him from offensive noises and
smells?

The advertising industry is a legitimate one. It is at the same time a cause and an effect of
the great industrial age through which the world is now passing. Millions are spent each
year in this manner to guide the consumer to the articles which he needs. The sense of
sight is the primary essential to advertising success. Billboard advertising, as it is now
conducted, is a comparatively recent form of advertising. It is conducted out of doors and
along the arteries of travel, and compels attention by the strategic locations of the boards,
which obstruct the range of vision at points where travelers are most likely to direct their
eyes. Beautiful landscapes are marred or may not be seen at all by the traveler because of
the gaudy array of posters announcing a particular kind of breakfast food, or underwear,
the coming of a circus, an incomparable soap, nostrums or medicines for the curing of all
the ills to which the flesh is heir, etc. It is quite natural for people to protest against this
indiscriminate and wholesale use of the landscape by advertisers and the intrusion of
tradesmen upon their hours of leisure and relaxation from work. Outdoor life must lose
much of its charm and pleasure if this form of advertising is permitted to continue
unhampered until it converts the streets and highways into veritable canyons through
which the world must travel in going to work or in search of outdoor pleasure.

The success of billboard advertising depends not so much upon the use of private property
as it does upon the use of the channels of travel used by the general public. Suppose that
the owner of private property, who so vigorously objects to the restriction of this form of
advertising, should require the advertiser to paste his posters upon the billboards so that
they would face the interior of the property instead of the exterior. Billboard advertising
would die a natural death if this were done, and its real dependency not upon the
unrestricted use of private property but upon the unrestricted use of the public highways is
at once apparent. Ostensibly located on private property, the real and sole value of the
billboard is its proximity to the public thoroughfares. Hence, we conceive that the
regulation of billboards and their restriction is not so much a regulation of private property
as it is a regulation of the use of the streets and other public thoroughfares.

We would not be understood as saying that billboard advertising is not a legitimate

business any more than we would say that a livery stable or an automobile garage is not.
Even a billboard is more sightly than piles of rubbish or an open sewer. But all these
businesses are offensive to the senses under certain conditions.

It has been urged against ministering to the sense of sight that tastes are so diversified
that there is no safe standard of legislation in this direction. We answer in the language of
the Supreme Court in Noble State Bank vs. Haskell (219 U.S., 104), and which has already
been adopted by several state courts (see supra), that “the prevailing morality or strong
and preponderating opinion” demands such legislation. The agitation against the
unrestrained development of the billboard business has produced results in nearly all the
countries of Europe. (Ency. Britannica, vol. 1, pp. 237-240.) Many drastic ordinances and
state laws have been passed in the United States seeking to make the business amenable
to regulation. But their regulation in the United states is hampered by what we conceive an
unwarranted restriction upon the scope of the police power by the courts. If the police
power may be exercised to encourage a healthy social and economic condition in the
country, and if the comfort and convenience of the people are included within those
subjects, everything which encroaches upon such territory is amenable to the police
power. A source of annoyance and irritation to the public does not minister to the comfort
and convenience of the public. And we are of the opinion that the prevailing sentiment is
manifestly against the erection of billboards which are offensive to the sight.

We do not consider that we are in conflict with the decision in Eubank vs. Richmond (226
U.S., 137), where a municipal ordinance establishing a building line to which property
owners must conform was held unconstitutional. As we have pointed out, billboard
advertising is not so much a use of private property as it is a use of the public
thoroughfares. It derives its value to the power solely because the posters are exposed to
the public gaze. It may well be that the state may not require private property owners to
conform to a building line, but may prescribe the conditions under which they shall make
use of the adjoining streets and highways. Nor is the law in question to be held invalid as
denying equal protection of the laws. In Keokee Coke Co. vs. Taylor (234 U.S., 224), it
was said: “It is more pressed that the act discriminates unconstitutionally against certain
classes. But while there are differences of opinion as to the degree and kind of
discrimination permitted by the Fourteenth Amendment, it is established by repeated
decisions that a statute aimed at what is deemed an evil, and hitting it presumably where
experience shows it to be most felt, is not to be upset by thinking up and enumerating
other instances to which it might have been applied equally well, so far as the court can
see. That is for the legislature to judge unless the case is very clear.”

But we have not overlooked the fact that we are not in harmony with the highest courts of
a number of the states in the American Union upon this point. Those courts being of the
opinion that statutes which are prompted and inspired by esthetic considerations merely,
having for their sole purpose the promotion and gratification of the esthetic sense, and not
the promotion or protection of the public safety, the public peace and good order of
society, must be held invalid and contrary to constitutional provisions holding inviolate the
rights of private property. Or, in other words, the police power cannot interfere with
private property rights for purely esthetic purposes. The courts, taking this view, rest their
decisions upon the proposition that the esthetic sense is disassociated entirely from any
relation to the public health, morals, comfort, or general welfare and is, therefore, beyond
the police power of the state. But we are of the opinion, as above indicated, that unsightly
advertisements or signs, signboards, or billboards which are offensive to the sight, are not
disassociated from the general welfare of the public. This is not establishing a new
principle, but carrying a well recognized principle to further application. (Fruend on Police
Power, p. 166.)

For the foregoing reasons the judgment appealed from is hereby reversed and the action
dismissed upon the merits, with costs. So ordered.

Arellano, C.J., Torres, Carson, and Araullo, JJ., concur.

DECISION ON THE MOTION FOR A REHEARING, JANUARY 24, 1916.

TRENT, J.:

Counsel for the plaintiffs call our attention to the case of Ex parte Young (209 U.S., 123);
and say that they are of the opinion that this case “is the absolutely determinative of the
question of jurisdiction in injunctions of this kind.” We did not refer to this case in our
former opinion because we were satisfied that the reasoning of the case is not applicable
to section 100 (b), 139 and 140 of Act No. 2339. The principles announced in the Young
case are stated as follows: “It may therefore be said that when the penalties for
disobedience are by fines so enormous and imprisonment so severe as to intimidate the
company and its officers from resorting to the courts to test the validity of the legislation,
the result is the same as if the law in terms prohibited the company from seeking judicial
construction of laws which deeply affect its rights.

It is urged that there is no principle upon which to base the claim that a person is entitled
to disobey a statute at least once, for the purpose of testing its validity without subjecting
himself to the penalties for disobedience provided by the statute in case it is valid. This is
not an accurate statement of the case. Ordinarily a law creating offenses in the nature of
misdemeanors or felonies relates to a subject over which the jurisdiction of the legislature
is complete in any event. In these case, however, of the establishment of certain rates
without any hearing, the validity of such rates necessarily depends upon whether they are
high enough to permit at least some return upon the investment (how much it is not now
necessary to state), and an inquiry as to that fact is a proper subject of judicial
investigation. If it turns out that the rates are too low for that purpose, then they are
illegal. Now, to impose upon a party interested the burden of obtaining a judicial decision
of such a question (no prior hearing having ever been given) only upon the condition that,
if unsuccessful, he must suffer imprisonment and pay fines as provided in these acts, is, in
effect, to close up all approaches to the courts, and thus prevent any hearing upon the
question whether the rates as provided by the acts are not too low, and therefore invalid.
The distinction is obvious between a case where the validity of the acts depends upon the
existence of a fact which can be determined only after investigation of a very complicated
and technical character, and the ordinary case of a statute upon a subject requiring no
such investigation and over which the jurisdiction of the legislature is complete in any
event.

An examination of the sections of our Internal Revenue Law and of the circumstances
under which and the purposes for which they were enacted, will show that, unlike the
statutes under consideration in the above cited case, their enactment involved no attempt
on the part of the Legislature to prevent dissatisfied taxpayers “from resorting to the
courts to test the validity of the legislation;” no effort to prevent any inquiry as to their
validity. While section 139 does prevent the testing of the validity of subsection (b) of
section 100 in injunction suits instituted for the purpose of restraining the collection of
internal revenue taxes, section 140 provides a complete remedy for that purpose. And
furthermore, the validity of subsection (b) does not depend upon “the existence of a fact
which can be determined only after investigation of a very complicated and technical
character,” but the jurisdiction of the Legislature over the subject with which the
subsection deals “is complete in any event.” The judgment of the court in the Young case
rests upon the proposition that the aggrieved parties had no adequate remedy at law.

Neither did we overlook the case of General Oil Co. vs. Crain (209 U.S., 211), decided the
same day and citing Ex parte Young, supra. In that case the plaintiff was a Tennessee
corporation, with its principal place of business in Memphis, Tennessee. It was engaged in
the manufacture and sale of coal oil, etc. Its wells and plant were located in Pennsylvania
and Ohio. Memphis was not only its place of business, at which place it sold oil to the
residents of Tennessee, but also a distributing point to which oils were shipped from
Pennsylvania and Ohio and unloaded into various tanks for the purpose of being forwarded
to the Arkansas, Louisiana, and Mississippi customers. Notwithstanding the fact that the
company separated its oils, which were designated to meet the requirements of the orders
from those States, from the oils for sale in Tennessee, the defendant insisted that he had a
right, under the Act of the Tennessee Legislature, approved April 21, 1899, to inspect all
the oils unlocated in Memphis, whether for sale in that State or not, and charge and collect
for such inspection a regular fee of twenty-five cents per barrel. The company, being
advised that the defendant had no such right, instituted this action in the inferior States
court for the purpose of enjoining the defendant, upon the grounds stated in the bill, from
inspecting or attempting to inspect its oils. Upon trial, the preliminary injunction which had
been granted at the commencement of the action, was continued in force. Upon appeal,
the supreme court of the State of Tennessee decided that the suit was one against the
State and reversed the judgment of the Chancellor. In the Supreme Court of the United
States, where the case was reviewed upon a writ of error, the contentions of the parties
were stated by the court as follows: “It is contended by defendant in error that this court
is without jurisdiction because no matter sought to be litigated by plaintiff in error was
determined by the Supreme Court of Tennessee. The court simply held, it is paid, that,
under the laws of the State, it had no jurisdiction to entertain the suit for any purpose.
And it is insisted “hat this holding involved no Federal question, but only the powers and
jurisdiction of the courts of the State of Tennessee, in respect to which the Supreme Court
of Tennessee is the final arbiter.”

Opposing these contentions, plaintiff in error urges that whether a suit is one against a
State cannot depend upon the declaration of a statute, but depends upon the essential
nature ofthe suit, and that the Supreme Court recognized that the statute “aded nothing to
the axiomatic principle that the State, as a sovereign, is not subject to suit save by its own
consent.”And it is hence insisted that the court by dismissing the bill gave effect to the law
which was attacked. It is further insisted that the bill undoubtedly present rights under the
Constitution of the United States and conditions which entitle plaintiff in error to an
injunction for the protection of such rights, and that a statute of the State which operates
to deny such rights, or such relief, `is itself in conflict with the Constitution of the United
States.”

That statute of Tennessee, which the supreme court of that State construed and held to be
prohibitory of the suit, was an act passed February 28, 1873, which provides: “That no
court in the State of Tennessee has, nor shall hereafter have, any power, jurisdiction, or
authority to entertain any suit against the State, or any officer acting by the authority of
the State, with a view to reach the State, its treasury, funds or property; and all such suits
now pending, or hereafter brought, shall be dismissed as to the State, or such officer, on
motion, plea or demurrer of the law officer of the State, or counsel employed by the
State.”

The Supreme Court of the United States, after reviewing many cases, said: “Necessarily,
to give adequate protection to constitutional rights a distinction must be made between
valid and invalid state laws, as determining the character of the suit against state officers.
And the suit at bar illustrates the necessity. If a suit against state officer is precluded in
the national courts by the Eleventh Amendment to the Constitution, and may be forbidden
by a State to its courts, as it is contended in the case at bar that it may be, without power
of review by this court, it must be evident that an easy way is open to prevent the
enforcement of many provisions of the Constitution; and the Fourteenth Amendment,
which is directed at state action, could be nullified as to much of its operation. … It being
then the right of a party to be protected against a law which violates a constitutional right,
whether by its terms or the manner of its enforcement, it is manifest that a decision which
denies such protection gives effect to the law, and the decision is reviewable by this
court.”

The court then proceeded to consider whether the law of 1899 would, if administered
against the oils in question, violate any constitutional right of the plaintiff and after finding
and adjudging that the oils were not in movement through the States, that they had
reached the destination of their first shipment, and were held there, not in necessary delay
at means of transportation but for the business purposes and profit of the company, and
resting its judgment upon the taxing power of the State, affirmed the decree of the
supreme court of the State of Tennessee.

From the foregoing it will be seen that the Supreme Court of Tennessee dismissed the case
for want of jurisdiction because the suit was one against the State, which was prohibited
by the Tennessee Legislature. The Supreme Court of the United States took jurisdiction of
the controversy for the reasons above quoted and sustained the Act of 1899 as a revenue
law.

The case of Tennessee vs. Sneed (96 U.S., 69), and Shelton vs. Platt (139 U.S., 591),
relied upon in our former opinion, were not cited in General Oil Co. vs. Crain, supra,
because the questions presented and the statutes under consideration were entirely
different. The Act approved March 31, 1873, expressly prohibits the courts from restraining
the collection of any tax, leaving the dissatisfied taxpayer to his exclusive remedy –
payment under protest and suit to recover – while the Act approved February 28, 1873,
prohibits suits against the State.

In upholding the statute which authorizes the removal of signboards or billboards upon the
sole ground that they are offensive to the sight, we recognized the fact that we are not in
harmony with various state courts in the American Union. We have just examined the
decision of the Supreme Court of the State of Illinois in the recent case (October
[December], 1914) of Thomas Cusack Co. vs. City of Chicago (267 Ill., 344), wherein the
court upheld the validity of a municipal ordinances, which reads as follows: “707. Frontage
consents required. It shall be unlawful for any person, firm or corporation to erect or
construct any bill-board or sign-board in any block on any public street in which one-half of
the buildings on both sides of the street are used exclusively for residence purposes,
without first obtaining the consent, in writing, of the owners or duly authorized agents of
said owners owning a majority of the frontage of the property, on both sides of the street,
in the block in which such bill-board or sign-board is to be erected, constructed or located.
Such written consent shall be filed with the commissioner of buildings before a permit shall
be issued for the erection, construction or location of such bill-board or sign-board.”
The evidence which the Illinois court relied upon was the danger of fires, the fact that
billboards promote the commission of various immoral and filthy acts by disorderly
persons, and the inadequate police protection furnished to residential districts. The last
objection has no virtue unless one or the other of the other objections are valid. If the
billboard industry does, in fact, promote such municipal evils to noticeable extent, it seems
a curious inconsistency that a majority of the property owners on a given block may
legalize the business. However, the decision is undoubtedly a considerable advance over
the views taken by other high courts in the United States and distinguishes several Illinois
decisions. It is an advance because it permits the suppression of billboards where they are
undesirable. The ordinance which the court approved will no doubt cause the virtual
suppression of the business in the residential districts. Hence, it is recognized that under
certain circumstances billboards may be suppressed as an unlawful use of private
property. Logically, it would seem that the premise of fact relied upon is not very solid.
Objections to the billboard upon police, sanitary, and moral grounds have been, as pointed
out by counsel for Churchill and Tait, duly considered by numerous high courts in the
United States, and, with one exception, have been rejected as without foundation. The
exception is the Supreme Court of Missouri, which advances practically the same line of
reasoning as has the Illinois court in this recent case. (St. Louis Gunning Advt. Co. vs. City
of St. Louis, 137 S. W., 929.) In fact, the Illinois court, in Haller Sign Works vs. Physical
Culture Training School (249 Ill., 436), “distinguished” in the recent case, said: “There is
nothing inherently dangerous to the health or safety of the public in structures that are
properly erected for advertising purposes.”

If a billboard is so constructed as to offer no room for objections on sanitary or moral

grounds, it would seem that the ordinance above quoted would have to be sustained upon
the very grounds which we have advanced in sustaining our own statute.

It might be well to note that billboard legislation in the United States is attempting to
eradicate a business which has already been firmly established. This business was allowed
to expand unchecked until its very extent called attention to its objectionable features. In
the Philippine Islands such legislation has almost anticipated the business, which is not yet
of such proportions that it can be said to be fairly established. It may be that the courts in
the United States have committed themselves to a course of decisions with respect to
billboard advertising, the full consequences of which were not perceived for the reason that
the development of the business has been so recent that the objectionable features of it
did not present themselves clearly to the courts nor to the people. We, in this country,
have the benefit of the experience of the people of the United States and may make our
legislation preventive rather than corrective. There are in this country, moreover, on every
hand in those districts where Spanish civilization has held sway for so many centuries,
examples of architecture now belonging to a past age, and which are attractive not only to
the residents of the country but to visitors. If the billboard industry is permitted without
constraint or control to hide these historic sites from the passerby, the country will be less
attractive to the tourist and the people will suffer a district economic loss.

The motion for a rehearing is therefore denied.

Arellano, C.J., Torres, and Carson, JJ., concur.