Republic SUPREME Manila

of

the

Philippines COURT

EN BANC

DECISION

December G.R. THE vs. ISIDORO Allen Attorney-General TORRES, A. No. UNITED

11,

1912 L-7404 plaintiff-appellee, defendant-appellant. for for appellant. appellee. J.:

STATES, ESPIRITUSANTO, Garner, Villamor,

This is an appeal by the defendant from the judgment of conviction rendered in this case by the Honorable Herbert D. Gale, judge. In view of certain proceedings in the justice of the peace court of Malabon and the appeal by the defendant from the judgment therein rendered, whereby he was sentenced to the payment of a fine of P50, to subsidiary imprisonment and the costs, the provincial fiscal of Rizal on June 24, 1911, filed an information in the Court of First Instance, charging Isidoro Espiritusanto with a violation of municipal ordinance No. 1, series of 1910, enacted by the municipal council of Malabon, Rizal, inasmuch as the accused, on November 19, 1910, was in that pueblo found to be engaged, willfully, unlawfully, and criminally, in collecting wagers for the gambling game known as jueteng, the tickets necessary for conducting the same having been seized in his possession. Therefore this cause was instituted, and after due consideration of the evidence adduced judgment was rendered, on September 25, 1911, sentencing the defendant, for a violation of said ordinance, to the payment of the fine previously imposed upon him by the justice of the peace and, in case of insolvency, to the corresponding subsidiary imprisonment, and the costs. Defendant's counsel appealed from this judgment on the ground that said ordinance was unconstitutional. The ordinance in question, exhibited on page 9 of the record, was passed by the municipal council of Malabon on January 5, 1910, and amended at the sessions of the 27th of march and the 14th of June of the same year. It strictly prohibits the game of jueteng within the limits of the said pueblo and prescribes the penalties to be imposed for its violation; and it further provides that any person who shall collect money for wagers on the said game, or who shall keep, make, or prepare any list of numbers, or representative signs thereof, for use in such game, shall be deemed to be a collector of jueteng, and bankers, those who directly conduct the game, receive from the collectors the tickets or other contrivances, and are found in possession of the tambiolos or other articles

used for the purpose of conducting the said game; and that, finally, those who keep or maintain jueteng games shall be deemed to be keepers or maintainers of gambling houses, in accordance with the provisions of section 6 of Act No. 1757. After this judgment had been rendered, defendant's attorney presented a motion requesting that it be set aside on the grounds that the court lacked jurisdiction to try the case and sentence the defendant, for the reason that the ordinance under which he was tried and convicted was unconstitutional and invalid, but the court held in its judgment that it was no defect in an ordinance or municipal regulation to fail to express its subject in its title. This motion was overruled. Assuming the defendant's guilt, since he was engaged in collecting wagers for the game of jueteng, a game prohibited by law as one of chance, and since the judgment of conviction, rendered by the justice of the peace of the pueblo of Malabon, was affirmed by the Court of First Instance, we shall only treat in this decision of the argument advanced by the defense in maintaining this second appeal, to wit, that the Court of First Instance lacked jurisdiction over the subject matter of the suit, for the reason that the aforementioned ordinance passed by the municipal council of the pueblo of Malabon, under which the appellant was prosecuted and convicted, is unconstitutional kXDHijT3. Defendant's attorney argues that the ordinance is contrary to the municipal code because the council exceeded the powers conferred upon it by the code which, in subsection (u) of section 39, only authorizes it "to provide against the evils of gambling, gambling houses, and disorderly houses of whatsoever sort, " while the first paragraph of the said ordinance prescribes that it is strictly prohibited to play jueteng within the territorial limits of Malabon, and provides the penalties for its violation. From a perusal of the text of the ordinance referred to, it is unquestionable that it is in accord with the provisions of Act No. 1757, inasmuch as the latter strictly prohibits the playing of monte, jueteng, or any kind of lottery, banking or percentage games; and the said Municipal Code, by providing in section 39 that the municipal council shall provide against the evils of gambling, granted it the authority to prohibit gambling games such as those specified in the said ordinance; therefore, the municipal council concerned acted within the powers conferred upon it by the Municipal Code and in accordance with the provisions of the said Act No. 1757, since the game of jueteng, as one of chance absolutely prohibited by the latter, is not susceptible of regulation, but must be prosecuted and completely suppressed in order to avoid repetitions of the great and far-reaching social and moral evils it has been producing in the towns of these Islands. Hence it is undeniable that the said municipal council, in passing the said ordinance, did not exceed its authority and kept strictly within the powers conferred upon it by its organic law and the general laws that deal with gambling. With regard to the allegation that the said ordinance is in conflict with the provisions of section 5 of the Act of Congress of July 1, 1902, it must be considered that an ordinance has not the character of and is not a general law, but is merely a regulation of a local nature, and one perfectly valid and effective, provided it is in harmony with the general laws in force in the Islands. Therefore, it is not indispensable that its subject should appear in the title, for the provisions of the said Act of Congress refer to the general laws that govern in a State and to those enacted in these Islands which, indeed, must not embrace more than one subject and that subject must be expressed in the title. This constitutional provision has no application to municipal ordinances, as these do not partake of the nature of laws, but are mere rules provided for the fulfillment of the laws. This principle is laid down in the

Encyclopedia

of

Law

and

Procedure.

(Vol.

28,

p.

378,

and

vol.

36,

p.

1021.)

For the foregoing reasons we deem it proper to affirm and do hereby affirm the judgment from, with the costs against the appellant. Arellano, C.J., Carson and Trent, JJ., dissent. Mapa and Johnson, JJ., concur.

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

of

the

Philippines COURT

August 6, 1915 STATES, plaintiff-appellant,

THE UNITED vs. SILVESTRE POMPEYA, defendant-appellee. Office of the Lawrence, Ross and Block for appellee. JOHNSON, J.: Solicitor-General

Corpus

for

appellant.

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.

EN BANC [G.R. No. 15486. July 18, 1919.] BUENAVENTURA SALAVERIA, ANACLETO SALAVERIA and VICTORIA DE LOS REYES, Plaintiffs-Appellants, vs. RAMON ALBINDO, MELECIO ALBINDO, and SEBASTIANA ALBINDO, Defendants-Appellants.

DECISION MALCOLM, J.: The attorney for the Plaintiffs and Appellants has asked for a reconsideration of a resolution of the court dismissing their appeal. Inasmuch as the action taken by the court appears to be a departure from a former practice advantage is taken of this opportunity to estate our reasons. The facts are clear. Both Plaintiffs and Defendants appealed from a judgment of the Court of First Instance of Tayabas. The attorney for the Plaintiffs and Appellants moved in this court for the dismissal of the appeal of the Defendants on the ground of abandonment, because the said Defendants had failed to pay the filing fees within the time fixed by the rules of the Supreme Court. On an examination of the record, the court found not only this contention to be true, but that, likewise, the Plaintiffs and Appellants had fallen into the same mistake, and accordingly dismissed both appeals. It is this action which Plaintiffs desire to have rescinded. The Code of Civil Procedure in Section 787, provides that if the fees are not paid, the court may refuse to proceed with the action until they are paid and may dismiss the bill of exceptions or appeal for failure to prosecute if the fees are not paid within a reasonable time and after reasonable notice. Supplemental to the law, it is understood that for a number of years records were permitted to lie in the archives of the court for indefinite periods of time, simply because Appellants had failed to pay the necessary fees. This undesirable situation coming to the knowledge of the court, it ordered the clerk to report all such cases which had thus been abandoned for over six months, for dismissal. Still later, the court shortened the period to two months. It was this practice which was in vogue when the new rules of the court were adopted. The Rules of the Supreme Court of the Philippine Islands effective after the first day of January, nineteen hundred and nineteen, were drafted with the primary object of expediting justice. The Committee on Rules of the Supreme Court, in its report submitting the rules, gave as a principal change in the Rules of the Supreme Court, the discouragement of dilatory tactics by imposing upon the moving party the duty of proceeding promptly under penalty of dismissal of the appeal. On the supposition that the Supreme Court was, as it is, a court of appeal, periods of time were fixed within which attorneys must act, not particularly to make these periods arbitrary, but in order to urge on the sluggard and the dilatory. If certain provisions were followed, the appeal would prosper. If certain other provisions of the rules were not followed, automatically the appeal would disappear. In line with this idea, there was inserted in the new rules, Section 14 (b), reading as follows: The clerk of the lower court shall give notice in writing, by registered mail to the attorneys for the Appellant and Appellee, of the date of transmission of the bill of exceptions or record on appeal to this court, and shall certify to this court, that he has complied with this requirement and shall attach to such certificate the registry return card.

It shall be the duty of the Appellant in all civil cases, within ten days from the expiration of the periods respectively prescribed by Rule 13, computed from the date of the receipt of the notice of the transmission of the bill of exceptions or record, as shown by the certificate of the clerk of the lower court, and the registry return card, to pay the clerk of this court the fees for the docketing of the appeal. If the docketing fee is not paid within the period prescribed by this rule, the appeal shall be deemed abandoned and dismissed, and the clerk of this court shall return the bill of exceptions or record to the court below, accompanied by a certificate under the seal of the court, showing that the appeal has been dismissed pursuant to Section 500 of the Code of Civil Procedure and this rule. Upon the receipt of such certificate in the court below the case shall stand as though no bill of exceptions had been allowed or appeal taken. At present, therefore, instead of a case being permitted to sleep indefinitely, or for six months, or for two months, if the Appellant in a civil case does not pay the clerk of the court the docketing fees within ten days after the expiration of a period determined according to the city or province, computed from the date of the receipt of the notice of the transmission of the bill of exceptions or record, the appeal is deemed abandoned. It is automatically dismissed without the necessity of a motion. It is this rule which counsel for Plaintiffs invoked, as a club over counsel for Defendants, and it is this same rule which should here be applied both to the Plaintiffs and the Defendants. The court announces that hereafter the provisions of the Rules of the Supreme Court of the Philippine Islands relating to the payment of fees, particularly as appearing in Section 14 (b) thereof, will be followed. For this reason, the motion of reconsideration is denied. The resolution of the court dismissing the appeals and ordering the return of the record to the trial court will stand. SO ORDERED. Arellano, C.J., Torres, Johnson, Araullo, Street, Avancea, and Moir, JJ., concur.

Republic of the Philippines SUPREME COURT Manila

EN BANC

DECISION

November 12, 1918

G.R. No. L-13678 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 xxxxxxxxx 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 xxxxxxxxx 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. xxxxxxxxx The following penalties shall be imposed upon those who play the above games on days other than Sundays and official holidays: For the owner of the house: A fine of from Ten to Two hundred pesos, or subsidiary imprisonment in case of insolvency at the rate of one peso a day. For the gamblers: A fine of from Five to Two hundred pesos each or subsidiary imprisonment in case of insolvency

at the rate of one peso a day. The Philippine Legislature has granted to municipalities legislative powers of a dual character, one class mandatory an the other discretionary. Of the first class is the provision of the Administrative Code which makes it the duty of the municipal council, conformably with law, "to prohibit and penalize . . . gambling." (Sec. 2188 [i], Adm. Code of 1916; sec. 2242 [i], Adm. Code of 1917.) This is a more restricted power than that found in the original Municipal Code which authorized a municipal council to "provide against the evils of gambling, gambling houses, and disorderly houses of whatsoever sort." (Act No. 82, sec. 39 [u].) The present municipal law, since making use of the word "gambling," must be construed with reference to the Insular Law, Act No. 1757, relating to the same subject. Act No. 1757 in section 1 defines "gambling" as "the paying of any game for money or any representative of value or valuable consideration or thing, the result of which game depends wholly or chiefly upon chance or hazard, or the use of any mechanical inventions or contrivance to determine by chance the loser or winner of money or of any representative of value or of any valuable consideration or thing." In the United States vs. Hilario ([1913], 24 Phil., 392), the Supreme Court went into the subject of the meaning of "gambling" in this jurisdiction, and found that it includes those games the result of which depend wholly or chiefly upon chance or hazard, and excludes those games the result of which depend wholly or chiefly upon skill, with the result that sections 621 to 625 of the Revise Ordinances of the city of Manila (734-738 of the Revised Ordinances of 1917) were found to prohibit only games of chance or hazard. The ordinance of Orion, Bataan, merely prohibits the playing of panguingue on certain days, without describing it. Further, although this court has considered the method by which many other games are played, it has never as yet authoritatively decided whether panguingue was a game of skill or hazard. Nor was any evidence on this point introduced in the present case. However, a reading of the decision of the trial court and of official opinions of two Attorneys-General, of which we can take judicial cognizance, warrants the deduction that panguingue is not a game of chance or hazard and is not prohibited by Act No. 1757. (See Opinions of the Attorney-General of July 11, 1904; July 25, 1904; October 10, 1905; and September 7, 1911; also Berriz, Diccionario de la Administracion, p. 35.) If, therefore, we were to restrict our investigation to those portions of the Administrative Code which authorize a municipal council to prohibit and penalize gambling, there would exist grave doubt, to say the least, of the validity of ordinance No. 3 of the municipality of Orion, Bataan 4jsSBs. 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 jA0wpcmOM. 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 such as shall seem necessary and proper to provide for the health and safety, promote the prosperity, improve the morals, peace, good order, comfort, and convenience of the municipality and the inhabitants thereof, and for the protection of property therein. 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 AttorneyGeneral, 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, although panguingue 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. Applying the foregoing in this instance, it results that the defendant and appellant must be found guilty of a violation of ordinance No. 3 of the municipality of Orion, Bataan; and, in accordance therewith, shall be sentenced to the maximum penalty of the payment of a fine of P200, or to subsidiary imprisonment in case of insolvency, with the costs of all three instances against him. So ordered. Arellano, C.J., Torres, Araullo and Avancea, JJ., concur.

Republic of the Philippines SUPREME COURT Manila

EN BANC

DECISION

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, Avancea, Ostrand and Romualdez, JJ., concur. .

City Government of Quezon City vs ErictaDate: June 24, 1983Petitioners: City Government of Quezon City and City Council of Quezon CityRespondents: Hon. Judge Vicente Ericta and Himlayang Pilipino IncPonente: Gutierrez JrFacts: Section 9 of Ordinance No 6118 requires that at least 6% of the total area of a memorial park cemetery shall be set aside for charity burial. For several years,the section of the Ordinance was not enforced by city authorities but seven yearsafter the enactment of the ordinance, the Quezon City Council passed the aresolution directing the City Engineer to stop selling memorial park lots where theowners thereof have failed to donate the required 6% space for pauper burial.Respondent reacted by filing with the CFI a petition for declaratory relief,prohibition and mandamus with preliminary injunction seeking to annul Section 9 of the Ordinance in question The respondent alleged that the same is contrary to theConstitution, the Quezon City Charter, the Local Autonomy Act, and the RevisedAdministrative Code. The Court declared the Section 9 null and void.Petitioners argue that the taking of the respondent's property is a valid andreasonable exercise of police power and that the land is taken for a public use as itis intended for the burial ground of paupers. They further argue that the QuezonCity Council is authorized under its charter, in the exercise of local police power. Onthe other hand, respondent contends that the taking or confiscation of property isobvious because the ordinance permanently restricts the use of the property such that it cannot be used for any reasonable purpose and deprives the owner of allbeneficial use of his property Issue: WON Section 9 of the ordinance in question a valid exercise of the policepower H e l d : N o Ratio:An examination of the Charter of Quezon City does not reveal any provisionthat would justify the ordinance in question except the provision granting policepower to the City. The power to regulate does not include the power to prohibit (. Afortiori, the power to regulate does not include the power to confiscate. Theordinance in question not only confiscates but also prohibits the operation of amemorial park cemetery. There are three inherent powers of government by which the state interfereswith the property rights, namely-. (1) police power, (2) eminent domain, (3)taxation. These are said to exist independently of the Constitution as necessaryattributes of sovereignty.Police power is defined by Freund as 'the power of promoting the publicwelfare by restraining and regulating the use of liberty and property'. It is usuallyexerted in order to merely regulate the use and enjoyment of property of the owner.If he is deprived of his property outright, it is not taken for public use but rather todestroy in order to promote the general welfare. In police power, the owner doesnot recover from the government for injury sustained in consequence thereof. Thepolice power being the most active power of the government and the due processclause being the broadest station on governmental power, the conflict between this power of government and the due process clause of the Constitution is oftentimesinevitable.It will be seen from the foregoing authorities that police power is usuallyexercised in the form of mere regulation or restriction in the use of liberty orproperty for the promotion of the general welfare. It does not involve the taking orconfiscation of property with the exception of a few cases where there is a necessityto confiscate private property in order to destroy it for the purpose of protecting thepeace and order and of promoting the general welfare as for instance, theconfiscation of an illegally possessed article, such as opium and firearms.It seems to the court that Section 9 of Ordinance No. 6118, Series of 1964 of Quezon City is not a mere police regulation but an outright confiscation. It deprivesa person of his private property without due process of law, nay, even withoutcompensation. There is no reasonable relation between the setting aside of at least six (6)percent of the total area of an private cemeteries for charity burial grounds of deceased paupers and the promotion of health, morals, good order, safety, or thegeneral welfare of the people. The ordinance is actually a taking withoutcompensation of a certain area from a private cemetery to benefit paupers who arecharges of the municipal corporation. Instead of building or maintaining a publiccemetery for this purpose, the city passes the burden to private cemeteries. The expropriation without compensation of a portion of private cemeteries isnot covered by Section 12(t) of the Revised Charter of Quezon City which empowersthe city council to prohibit the burial of the dead within the center of population of the city and to provide for their burial in a proper place subject to the provisions of general law regulating burial grounds

and cemeteries. When the Local GovernmentCode, Batas Pambansa Blg. 337 provides in Section 177 (q) that a Sangguniangpanlungsod may "provide for the burial of the dead in such place and in suchmanner as prescribed by law or ordinance" it simply authorizes the city to provideits own city owned land or to buy or expropriate private properties to constructpublic cemeteries. This has been the law and practise in the past. It continues to thepresent. Expropriation, however, requires payment of just compensation. Thequestioned ordinance is different from laws and regulations requiring owners of subdivisions to set aside certain areas for streets, parks, playgrounds, and otherpublic facilities from the land they sell to buyers of subdivision lots. The necessitiesof public safety, health, and convenience are very clear from said requirementswhich are intended to insure the development of communities with salubrious andwholesome environments. The beneficiaries of the regulation, in turn, are made topay by the subdivision developer when individual lots are sold to home-owners.As a matter of fact, the petitioners rely solely on the general welfare clauseor on implied powers of the municipal corporation, not on any express provision of law as statutory basis of their exercise of power. The clause has always receivedbroad and liberal interpretation but we cannot stretch it to cover this particulartaking. Moreover, the questioned ordinance was passed after Himlayang Pilipino,Inc. had incorporated. received necessary licenses and permits and commencedoperating. The sequestration of six percent of the cemetery cannot even beconsidered as having been impliedly acknowledged by the private respondent whenit accepted the permits to commence operations.

TOMAS VELASCO et al vs HON. ANTONIO J. VILLEGAS et al 22 11 2010

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-24153 February 14, 1983

TOMAS VELASCO, LOURDES RAMIREZ, SY PIN, EDMUNDO UNSON, APOLONIA RAMIREZ and LOURDES LOMIBAO, as component members of the STA. CRUZ BARBERSHOP ASSOCIATION, in their own behalf and in representation of the other owners of barbershops in the City of Manila, petitioners-appellants, vs. HON. ANTONIO J. VILLEGAS, City Mayor of Manila, HON. HERMINIO A. ASTORGA, Vice-Mayor and Presiding Officer of the Municipal Board in relation to Republic Act 4065, THE MUNICIPAL BOARD OF THE CITY OF MANILA and EDUARDO QUINTOS SR., Chief of Police of the City of Manila, respondents-appellees. Leonardo L. Arguelles for respondent-appellant.

FERNANDO, C.J.: This is an appeal from an order of the lower court dismissing a suit for declaratory relief challenging the constitutionality based on Ordinance No. 4964 of the City of Manila, the contention being that it amounts to a deprivation of property of petitioners-appellants of their means of livelihood without due process of law. The assailed ordinance is worded thus: It shall be prohibited for any operator of any barber shop to conduct the business of massaging customers or other persons in any adjacent room or rooms of said barber shop, or in any room or rooms within the same building where the barber shop is located as long as the operator of the barber 1 shop and the room where massaging is conducted is the same person. As noted in the appealed order, petitioners-appellants admitted that criminal cases for the violation of this ordinance had been previously filed and decided. The lower court, therefore, held that a petition for declaratory relief did not lie, its availability being 2 dependent on there being as yet no case involving such issue having been filed. Even if such were not the case, the attack against the validity cannot succeed. As pointed out in the brief of respondents-appellees, it is a police power measure. The objectives behind its enactment are: (1) To be able to impose payment of the license fee for engaging in the business of massage clinic under Ordinance No. 3659 as amended by Ordinance 4767, an entirely different measure than the ordinance regulating the business of barbershops and, (2) in order to forestall possible immorality which might grow out of the construction of separate 3 rooms for massage of customers. This Court has been most liberal in sustaining ordinances based on the general 4 welfare clause. As far back as U.S. v. Salaveria, a 1918 decision, this Court through Justice Malcolm made clear the significance and scope of such a clause, which 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 really is the 5 6 progressive view of Philippine jurisprudence. As it was then, so it has continued to be. There is no showing, therefore, of the unconstitutionality of such ordinance. WHEREFORE, the appealed order of the lower court is affirmed. No costs. Makasiar, Concepcion, Jr., Guerrero, Abad Santos, De Castro, Melencio- Herrera, Plana, Escolin, Vasquez, Relova and Gutierrez, Jr., JJ., concur. Teehankee, J., reserves his vote. Aquino J., took no part.

VELASCO v. VILLEGASFacts: The petitioners filed a declaratory relief challenging the constitutionality based on Ordinance No.4964 of the City of Manila, the contention being that it amounts to a deprivation of property of their meansof livelihood without due process of law. The assailed ordinance is worded thus: "It shall be prohibited for any operator of any barber shop to conduct the business of massaging customers or other persons in any adjacent room or rooms of said barber shop, or in any room or rooms within the same building where the barber shop is located as longas the operator of the barber shop and the room where massaging is conducted is the same person."The lower court ruled in favor of the constitutionality of the assailed ordinance. Hence, the appeal. Issue: Whether or not Ordinance No. 4964 is unconstitutional Held: NO Ratio: It is a police power measure. The objectives behind its enactment are: "(1) To be able to imposepayment of the license fee for engaging in the business of massage clinic under Ordinance No. 3659 asamended by Ordinance 4767, an entirely different measure than the ordinance regulating the business of barbershops and, (2) in order to forestall possible immorality which might grow out of the construction of separate rooms for massage of customers."The Court has been most liberal in sustaining ordinances based on the general welfare clausebecause it "delegates in statutory form the police power to a municipality; this clause has been given wideapplication by municipal authorities and has in its relation to the particular circumstances of the case beenliberally construed by the courts. Such, it is well to really is the progressive view of Philippine jurisprudence."The judgment of the lower court is affirmed

Basco case

Municipal Corporation Local Autonomy imperium in imperio On July 11, 1983, PAGCOR was created under PD 1869 to enable the Government to regulate and centralize all games of chance authorized by existing franchise or permitted by law. Basco and four others (all lawyers) assailed the validity of the law creating PAGCOR on constitutional grounds among others particularly citing that the PAGCORs charter is against the constitutional provision on local autonomy. Basco et al contend that P.D. 1869 constitutes a waiver of the right of the City of Manila to impose taxes and legal fees; that Section 13 par. (2) of P.D. 1869 which exempts PAGCOR, as the franchise holder from paying any tax of any kind or form, income or otherwise, as well as fees, charges or levies of whatever nature, whether National or Local is violative of the local autonomy principle. ISSUE: Whether or not PAGCORs charter is violative of the principle of local autonomy. HELD: NO. Section 5, Article 10 of the 1987 Constitution provides: Each local government unit shall have the power to create its own source of revenue and to levy taxes, fees, and other charges subject to such guidelines and limitation as the congress may provide, consistent with the basic policy on local autonomy. Such taxes, fees and charges shall accrue exclusively to the local government. A close reading of the above provision does not violate local autonomy (particularly on taxing powers) as it was clearly stated that the taxing power of LGUs are subject to such guidelines and limitation as Congress may provide. Further, the City of Manila, being a mere Municipal corporation has no inherent right to impose taxes. The Charter of the City of Manila is subject to control by Congress. It should be stressed that municipal corporations are mere creatures of Congress which has the power to create and abolish municipal corporations due to its general legislative powers. Congress, therefore, has the power of control over Local governments. And if Congress can grant the City of Manila the power to tax certain matters, it can also provide for exemptions or even take back the power. Further still, local governments have no power to tax instrumentalities of the National Government. PAGCOR is a government owned or controlled corporation with an original charter, PD 1869. All of its shares of stocks are owned by the National Government. Otherwise, its operation might be burdened, impeded or subjected to control by a mere Local government. This doctrine emanates from the supremacy of the National Government over local governments.