G.R. No.

L-6583

February 16, 1912

RAMON FABIE, ET AL., plaintiffs-appellees,

vs.
THE CITY OF MANILA, defendant-appellant.
Acting Attorney-General Harvey for appellant.
Sanz & Opisso for appellees.
CARSON, J.:
Ordinance No. 124 of the city of Manila, enacted September 21, 1909, is an amendment of section
107 of the Revised Ordinances of the city of Manila, enacted June 13, 1908 relating to the issuance
of permits for the erection of buildings. Section 107 so amended reads as follows:
SEC. 107. Issuance of permits. When the application plans, and specifications conform to the
requirements of this title and of title eleven hereof, the engineer shall issue a permit for the erection
of the building and shall approve such plans and specifications in writing: Provided, That the building
shall about or face upon a public street or alley or on a private street or alley which has been
officially approved. One copy of all approved plans and specifications shall be returned to the owner
or his agent and one copy shall be retained by the engineer.
The appellees are the owners in common of a large tract of land which forms a part of the estate
known as theHacienda de Santa Ana de Sapa and which is inclosed between Calle Herran of the
District of Paco and an estero known as Tripa de Gallina, and lying within the corporate limits of the
city of Manila.
On the 26th day of November, 1909, the plaintiffs and appellees sought to obtain from the city of
Manila a building permit authorizing the construction of a small nipa house upon the property in
question. It was claimed that the purpose of the building was to serve as a guard house in which
watchmen might be stationed in order to prevent the carrying away of zacate from the premises. The
permit was denied by the city authorities on the ground that the site of the proposed building did not
conform to the requirements of section 107 of the Revised Ordinances of the city of Manila, as
amended by Ordinance No. 124, which provides: "That the building shall abut or face upon a public
street or alley or on a private street or alley which has been officially approved." It is the contention
of the appellees herein that this provision is unconstitutional and in violation of the fundamental
rights of the property owners of the city of Manila as guaranteed by the established laws of these
Islands and by the Constitution of the United States, in that it constitutes an invasion of their property
rights without due process of law. The lower court found in favor of appellees and declared the
ordinance null and void, at least to the extent of the above-cited provision. From this judgment this
appeal has been duly perfected. The only question submitted for the adjudication on this appeal is
the constitutionality of the ordinance, and to this question alone was direct our attention in this
opinion.
The appellant, the city of Manila, is a duly organized municipal corporation having full power and
authority to enact lawful ordinances for the protection and security of the lives, health and property of
its citizens. Counsel for appellant insists that the ordinance in question is a valid exercise of the

police power of the city, in that its sold purpose and aim is to effect these ends by affording better
sanitary regulations as well as increased facilities for protection to property from loss by fire.
It is undoubtedly on of the fundamental duties of the city of Manila to make all reasonable
regulations looking to the preservation and security of the general health of the community, and the
protection of life and property from loss or destruction by fire. All such regulations have their sanction
in what is termed the police power. Much difficulty has been experienced by the courts and text
writers in the attempt to define the police power of the state, and to set forth its precise limitations. In
fact it has been said to be, from its very nature incapable of any exact definition or limitation. Mr.
Thompson in his exhaustive treatise on Corporations summarizes as follows the conclusions of the
leading adjudicated cases and authorities touching this subject. He says:
Its business is to regulate and protect the security of social order, the life and health of the citizen,
the comfort of an existence in thickly populated communities, the enjoyment of private and social life,
and the beneficial use of property.
And again the same author says:
However courts may differ as to the extent and boundaries of this power, and however difficult it may
be of precise definition, there is a general agreement that it extends to the protection of the lives,
health and property of the citizens, and to the preservation of good order and the public morals. In
the absence of any constitutional prohibition, a legislature may lawfully prevent all things hurtful to
the comfort, safety, and welfare of society though the prohibition invades the right of liberty or
property of an individual. (Thompson on Corporations, 2d ed., vol. 1, sec. 421.)
In the case of U. S. vs. Toribio (15 Phil. Rep., 92) we had occasion to discuss at length the police
powers of the State, and in the opinion in that case will be found a number of quotations from
textbook and judicial authority, developing and exemplifying the principles on which the exercise of
the police powers of the State have been recognized and applied. But for the purpose of this opinion
the foregoing citations from Thompson's treatise on Corporations sets forth the doctrine quite
satisfactorily, and relying on the reasoning of the opinion in the case of U. S. vs. Toribio (15 Phil.
Rep., 92), it is not necessary to enter at this time into an extended discussion of the principles on
which the doctrine rest.
In accord with the rule laid down in the case of Lawton vs. Steele (152 U. S., 132-134), quoted at
some length in the opinion in the case of U. S. vs. Toribio, to justify the State in the exercise of it
police powers on behalf of the public, it must appear;
First, that the interests of the public generally, as distinguished from those of a particular class,
require such interference; and, second, that the means are reasonably necessary for the
accomplishment of the purpose, and not unduly oppressive upon individuals. The legislature may
not, under the guise of protecting the public interest, arbitrary interfere with private business, or
impose unusual and unnecessary restrictions upon lawful occupations. In other words, is
determination as to what is a proper exercise of its police powers is not conclusive, but is subject to
the supervision of the court.
It is very clear that the ordinance, if it be held to be reasonable, prescribes a rule in the interest of
the public of the city of Manila generally, as distinguished from the interest of individuals or of a

particular class. In determining its validity, therefore, the only questions which need be considered,
are whether its provisions are or are not reasonably necessary for the accomplishment of its
purposes, and whether they are or are not unduly oppressive upon individuals.
The purpose and object of the ordinance is avowedly and manifestly to protect and secure the
health, lives and property of the citizens of Manila against the ravages of fire and disease. The
provision that denies permits for the construction of buildings within the city limits unless they "abut
or face upon a public street or alley or on a private street or alley which has been officially
approved," is in our opinion reasonably necessary to secure the end in view.
In the first place it prevents the huddling and crowding of buildings in irregular masses on single or
adjoining tracts of land, and secures an air space on at least one side of each new residence or
other building constructed in the city. The menace to the health and safety of the residents of Manila
resulting from the crowding of nipa shakes, and even more substantial buildings upon small tracts of
land is a matter of common knowledge; and in a community, exposed as this city is to destructive
conflagrations and epidemic diseases, a legislative measures which tends to prevent the repitition of
such unfortunate conditions should not be judicially declared to be unreasonable, in the absence of
the most compelling reasons.
In the second place, the provisions of the ordinance in question manifestly promote the safety and
security of the citizens of Manila and of their property against fire and disease, especially epidemic
disease, by securing the easy and unimpeded approach to all new buildings: First, of fire engines,
and other apparatus for fighting fire; second, of ambulances, refuse wagons, and apparatus used by
the sanitary department in caring for the sanitation of the city; third, of fire and health inspectors
generally; of employees of the fire department and others engaged in fighting fire; and of employees
of the Bureau of Health engaged in their duty as guardians of the sanitary conditions and general
health of the city.
There can be no question as to the intent an purpose of the provision of the ordinance under
discussion. It is manifestly intended to subserve the public health and safety of the citizens of Manila
generally and was not conceived in favor of any class or of particular individuals. Those charged with
the public welfare and safety of the city deemed the enactment of the ordinance necessary to secure
these purposes, and it cannot be doubted that if its enactment was reasonably necessary to that end
it was and is a due and proper exercise of the police power. We are of opinion that the enforcement
of its provisions cannot fail to redound to the public good, and that it should be sustained on the
principle that "the welfare of the people is the highest law" (salus populi suprema est lex). Indeed
having in mind the controlling public necessity which demands the adoption of proper measures to
secure the ends sought to be attained by the enactment of this provisions of the ordinances; and the
large discretion necessarily vested in the legislative authority to determine not only what the interests
of the public require, but what measures are necessary for the protection of such interest; we are
satisfied that we would not be justified in an attempt to restrict or control the exercise of that
discretion even if the "reasonable necessity" for its exercise in the particular form actually adopted
were much less apparent than it is in this case.
That the ordinance is not "unduly oppressive upon individuals" becomes very clear when the nature
and extent of the limitations imposed by its provisions upon the use of private property are
considered with relation to the public interests, the public health and safety, which the ordinance
seeks to secure. Discussing this question in his opinion to the Municipal Board relative to the validity

and constitutionality of this ordinance, the Attorney-General well said: "Under the ordinance before
us rights in private property are not arbitrary regulated. No person desiring to erect a building is
prohibited from doing so. He can, if necessary, lay out a private street or the city can extend the
public street system. The property may thus be substantially increased in value rather than the
reverse, In brief, the owner's right to the enjoyment of his property is only interfered with in so far as
it is necessary to protect the rights of others."
To this we may add the following citation from the opinion in the case of Commonwelth vs. Alger (7
Cush., 53, 84) which to our minds well states the principle in this regard on which the validity of the
of the ordinance in question must be sustained:
We think it is a settled principle, growing out of the nature of well ordered civil society, that every
holder of property, however absolute and unqualified may be his title, holds it under the implied
liability that his use of it may be so regulated that it shall not be injurious to the rights of the
community. . . . Rights of property, like all other social and conventional rights, are subject to such
reasonable limitations in their enjoyment as shall prevent them from being injurious, and to such
reasonable restraints and regulations established by law, as the legislature, under the governing and
controlling power vested in them by the constitution, may think necessary and expedient.
We conclude that the proviso of the ordinance in question directing: "That the building shall abut or
face upon a public street or alley which has been officially approved," is valid, and that the judgment
of the lower court should be reversed, without special condemnation of costs. So ordered.
Torres, Johnson, Moreland and Trent, JJ., concur.

G.R. No. L-10255, U.S. v. Pompeya

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
DECISION
August 6, 1915
G.R. No. L-10255
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. 1309is
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 ablebodied 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 ofAct 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 that panguingue is not a game of chance or hazard and
is not prohibited by Act No. 1757. (See Opinions of the Attorney-General of July 11, 1904; July 25,
1904; October 10, 1905; and September 7, 1911; also Berriz, Diccionario de la Administracion, p.
35.) If, therefore, we were to restrict our investigation to those portions of the Administrative Code
which authorize a municipal council to prohibit and penalize gambling, there would exist grave doubt,
to say the least, of the validity of ordinance No. 3 of the municipality of Orion, Bataan.
There remains for consideration a different approach to the question.
While Philippine law gives to gambling a restricted meaning, it is to be noted that, in its broader
signification, gambling relates to play by certain rules at cards, dice, or other contrivance, so that one
shall be the loser an the other the winner. (20 Cyc., 878; Bouvier's Law Dictionary; People vs. Todd
[1889], 51 Hun [N. Y.], 446 451; 4 N. Y. Supp., 25.) As one example the Charter of the town of
Ruston, State of Louisiana, authorized it "to restrain, prohibit, an suppress . . . games and gambling
houses and rooms . . ., and to provide for the punishment of the persons engaged in the same."
Under this power the town passed an ordinance prohibiting "all games of chance, lottery, banking
games, raffling, and all other species of gambling," indicating that there were other species of
gambling in addition to games of chance. (See Town of Ruston vs. Perkins [1905], 114 La., 851.)
The common law notion of gambling, which only made it an indictable offense when the play was
attended by such circumstances as would in themselves amount to a riot or a nuisance or to an
actual breach of the peace, has given way to statutes and ordinances designed to restrain,
suppress, or control gambling.
Authority for the State or a municipality to take action to control gambling in this larger sense can be
found in an analysis of what is calle the police power.
Any attempt to define the police power with circumstantial precision would savor of pedantry. The
United States Supreme Court tritely describes it as "the most essential of all powers, at times the
most insistent, an always one of least limitable of the powers of government." (District of
Columbia vs. Brooks [1909], 214 U.S., 138.) The police power is based on the maxim "salus populi
est suprema lex" the welfare of the people is the first law. The United States Supreme Court has
said that it extends "to the protection of the lives, health and property of the citizens, and to
the preservation of good order and the public morals." (Beer Co. vs. Massachusetts [1878] , 97 U.S.,
25; Barbier vs. Connolly [1885], 113 U.S., 27.) The Supreme Court of these Islands has said that it
extends "the police power of the state includes not only the public health safety, but also the public
welfare, protection against impositions, and generally the public's best interest." (U.S. vs. Pompeya
[1915], 31 Phil., 245.) Recent judicial decisions incline to give a more extensive scope to the police
power that the older cases. The public welfare is rightfully made the basis of construction.
Not only does the State effectuate its purposes through the exercise of the police power but the
municipality does also. Like the State, the police power of a municipal corporation extends to all
matters affecting the peace, order, health, morals, convenience, comfort, and safety of its citizens
the security of social order the best and highest interests of the municipality. (Case vs. Board of
Health of Manila and Heiser [1913], 24 Phil., 250.) The best considered decisions have tended to
broaden the scope of action of the municipality in dealing with police offenses. Within the general
police powers of a municipal corporation is the suppression of gambling. Ordinances aimed in a
reasonable way at the accomplishment of this purpose are undoubtedly valid. (See U.S. vs. Pacis
[1915], 31 Phil., 524; 39 L. R. A., 523, Note; Cooley's Constitutional Limitations, 6th edition, pp. 138,
226, 742; Greenville vs. Kemmis [1900], 58 S. C., 427 [holding that under the general welfare clause
a city may pass an ordinance prohibiting gambling in any private house].)

The Philippine Legislature, as before intimated, delegated to municipalities certain legislative powers
are named specifically. But in addition, and preceding both the specific powers of a mandatory and
discretionary character, is the general power of a municipal council to enact ordinances and make
regulations. It is this grant that the preamble of the ordinance of Orion assigns as authority for its
enactment. Said section 2184 of the Administrative Code of 1916 (sec. 2238, Adm. Code of 1917)
reads:
The municipal council shall enact such ordinances and make such regulations, not
repugnant to law, as may be necessary to carry into effect and discharge the powers an
duties conferred upon it by law an suchas shall seem necessary and proper to provide for
the health and safety, promote the prosperity, improve the morals, peace, good order,
comfort, and convenience of the municipality and the inhabitants thereof,and for the
protection of property therein.
This section, known as the general welfare clause, delegates in statutory form the police power to a
municipality. As above stated, this clause has been given wide application by municipal authorities
and has in its relation to the particular circumstances of the case been liberally construed by the
courts. Such, it is well to recall, is the progressive view of Philippine jurisprudence.
The general welfare clause has two branches. One branch attaches itself to the main trunk of
municipal authority, and relates to such ordinances and regulations as may be necessary to carry
into effect and discharge the powers and duties conferred upon the municipal council by law. With
this class we are not here directly concerned. The second branch of the clause is much more
independent of the specific functions of the council which are enumerated by law. It authorizes such
ordinances "as shall seem necessary and proper to provide for the health and safety, promote the
prosperity, improve the morals, peace, good order, comfort, and convenience of the municipality and
the inhabitants thereof, and for the protection of property therein."
It is a general rule that ordinances passed by virtue of the implied power found in the general powers
and purposes of the corporation, and not inconsistent with the laws or policy of the State. The
ordinance of the municipality of Orion does not seem in itself to be pernicious, or unreasonable or
discriminatory. Its purposes evidently are to improve the morals and stimulate the industry of the
people. A person is to be compelled to refrain from private acts injurious both to himself an his
neighbors. These objects, to be attained by limiting the pastime to definite days, do not infringe any
law of the general government.
The constitutional provision that no person shall be deprived of liberty without due process of law is
not violated by this ordinance. Liberty of action by the individual is not unduly circumscribed; that is,
it is not unduly circumscribed if we have in mind the correct notion of this "the greatest of all rights."
That gravest of sociological questions How far, consistently with freedom, may the liberties of the
individual member of society be subordinated to the will of the Government? has been debated
for centuries, in vain, if we can not now discount the time worn objection to any and all interference
with private rights in order to effectuate the public purpose. (See Jacobson vs. Massachusetts
[1905], 197 U. S., 11; State vs. Kreutzberg [1902], 58 L. R. A., 748.) Almost countless are the
governmental restrictions on the citizen.
The presumption is all favor of validity. The inhabitants of a municipality are in themselves miniature
states. The action of the elected representatives of the people cannot be lightly set aside. The
councilors must, in the very nature of things, be familiar with the necessities of their particular
municipality an with all the facts and circumstances which surround the subject, and necessities of
their particular municipality and with all the facts and circumstances which surround the subject, and
necessitate action. The local legislative body, by enacting the ordinance, has in effect given notice

that the regulations are essential to the well being of the people. Who is in a better position to say
whether the playing of panguingue is deleterious to social order and the public interest in a certain
municipality the municipal council, or the courts? The answer is self-evident. The Judiciary should
not lightly set aside legislative action when there is not a clear invasion of personal or property rights
under the guise of police regulation. (See U.S. vs. Joson [1913], 26 Phil., 1.)
President McKinley's Instructions to the Commission still remain undisturbed by subsequent Acts of
Congress dealing with Philippine affairs and yet constitute a portion of our constitutional law, as to
the inviolable rule that "municipal governments . . . shall be afforded the opportunity to manage their
own affairs to the fullest extent of which they are capable." Again the same organic law says, "In the
distribution of powers among the governments organized by the Commission, the presumption is
always to be in favor of the smaller subdivision, so that all the powers which can properly be
exercised by the municipal government shall be vested in that government . . . ." Let us never forget
these principles so highly protective of local self-government.
The judiciary can very well take notice of the fact that municipalities are accustomed to enacting
ordinances aimed at the regulation of gambling. The executive authorities an the Attorney-General
have usually upheld the validity of such ordinances, especially those intended to restrict the playing
of panguingue. (Opinions of the Attorney-General, supra; Opinion of the Executive Secretary, July 6,
1909; Indorsement of the Governor-General, July 21, 1904.) This general municipal practice,
indicative of a social cancer to be eradicated, should not be discouraged by strict judicial
construction.
More important still, the courts cannot but realize that gambling, in its larger sense as well as in its
restricted sense, is an act beyond the pale of good morals, which, for the welfare of the Filipino
people, should be exterminated. The suppression of the evil does not interfere with any of the
inherent rights of citizenship. The pernicious practice is rightfully regarded as the offspring of
idleness and the prolific parent of vice and immorality, demoralizing in its association and
tendencies, detrimental to the best interests of society, and encouraging wastefulness, thriftlessness,
and a belief that a livelihood may be earned by other means than honest industry. To be condemned
in itself, it has the further effect of causing poverty, dishonesty, fraud, and deceit. Many a man has
neglected his business and mortgaged his integrity to follow the fickle Goddess of the cards. Many a
woman has wasted her hours and squandered her substance at the gambling board while home and
children were forgotten. It is highly proper that this pastime should be subject to the control of
restraints imposed by the ordinances of local governments peculiarly afflicted by the evil. (See In
re Voss [1903], 11 N. D., 540; Ex parte Tuttle [1891], 91, Cal., 589; Greenwood vs. State [1873], 6
Baxt., 567; 32 Am. Rep., 539; 12 R. C. L., 709-715.)
For the suppression of such an evil, coordinate and harmonious action must concur between the
three departments of Government. A law or ordinance enacted by the legislative body must exist.
Such an ordinance is before us. Vigorous executive enforcement must take place to make the law or
ordinance a reality. Such activity by the police has brought this case to the courts. And finally the
Judiciary, having full respect for the legislative action of the municipal council and for the prosecution
by the executive officials, must, by judicial construction, equally as progressive and constructive,
give effect to the action of the other two powers. Wherefore, althoughpanguingue is not entirely a
game of chance, since it is a proper subject for regulation by municipal authorities acting under their
delegated police power, whose laudable intention is to improve the public morals and promote the
prosperity of their people, their action should be upheld by the courts. Ordinance No. 3 of Orion,
Bataan, is found to be valid.
The culprit in this case is himself a member of the Judiciary. Instead of enforcing the law, he has
scorned it. His example to the people of Orion has been pernicious in its influence. If gambling is to

be suppressed, not only the weak and ignorant must be punished, but those with full knowledge of
the law and the consequences of violation. We would accordingly suggest to Courts of First Instance
that in all cases arising under the Gambling Law or ordinances, except for unusual circumstances, a
prison sentence should be imposed, if permitted by the law or ordinance. We further suggest that,
where the defendant has been found guilty and is a man of station, he be given the maximum
penalty.
lawphil.net

Applying the foregoing in this instance, it results that the defendant and appellant must be found
guilty of a violation of ordinance No. 3 of the municipality of Orion, Bataan; and, in accordance
therewith, shall be sentenced to the maximum penalty of the payment of a fine of P200, or to
subsidiary imprisonment in case of insolvency, with the costs of all three instances against him. So
ordered.
Arellano, C.J., Torres, Araullo and Avancea, JJ., concur.

Separate Opinions

JOHNSON, J., concurring:

I concur upon the ground that the ordinance in question is fully authorized under the "general
welfare" provisions of the Municipal Code.
STREET, J., concurring:
I agree in the conclusion that the ordinance passed by the municipality of Orion prohibiting the
playing ofpanguingue on secular days is valid and am of the opinion that the authority to pass such
an ordinance is to be found exclusively in section 2184 of the Administrative Code (1916), which
gives a general authority for the enactment of ordinances which seem proper to improve the morals
and good order of the community. As the game of panguingue is admittedly not a game of chance or
hazard played for money, it is not within the prohibitions of Act No. 1757; an I think the case should
be determined without reference to the legislation against gambling and without reference t the
circumstance that under subsection (i) of section 2188 of the same Code the Legislature has made it
mandatory upon municipal councils to prohibit and penalize gambling.
The legislature has clearly authorized the municipal council to use its discretion as to the measures
which it esteems desirable to promote morals an good order; and I know of no rule of law which
would justify any court in overruling that discretion in such a matter as is now before us. Certainly I
would be sorry to see this court adopt a paternalistic attitude of captious criticism and correction
tending to embarrass the free exercise of the legislative discretion vested by law in the municipal

councils. Those bodies are undoubtedly destined to make mistakes in the exercise of the powers
conferred on them, but there is no better school than that of experience in which their members may
discover what is most likely to promote the welfare of the community and the interests of their
constituents.
As already suggested, I think that the Gambling Law (Act No. 1757) and the provisions of the
Municipal Code relative to the suppression of gambling, strictly speaking, have nothing to do with the
case; and the circumstance that those measures are upon the statute book cannot serve in the
slightest degree to limit the powers of a municipal council in legislating upon a matter not implicated
with gambling. From the preamble to the ordinance it may be seen that the council had in view the
promotion of the general well-being and the advancement of prosperity in the community; and the
ordinance was doubtless intended to discourage the playing of games which involve a frivolous and
idle waste of time, rather than directly to suppress gambling. But even if the council had suppose
that the games which it proposed to regulate are calculated to foment the gambling instinct and
should be suppressed for that reason, the ordinance in question could not possibly have been
rendered invalid by that fact.
FISHER, J., dissenting:
The importance of suppressing gambling, properly emphasized in the majority opinion, cannot
warrant a conviction where gambling is not involved. The zeal to remedy an evil should not induce
the graver evil of obliterating legal landmarks.
Gambling is the playing, for money or its equivalent, of any game of which the result depends
"wholly or chiefly upon chance or hazard, . . . ." (Act No. 1757).
The defendant herein is accused of playing panguingue, which is avowedly not a game of chance or
hazard within this definition. It is not alleged in the information that the playing was for money or any
other thing of value. The fact that some money was found on the table when the accused was
arrested is immaterial in this case. The ordinance under which the conviction was had does not
make playing the prohibited games for money an ingredient of the offense, and the decision of the
majority proceeds upon the theory that the result would have been the same had no money been
staked upon the game.
To play a game of skill without risking anything upon the outcome is not gambling, and the
prohibition of harmless amusements cannot be justified by the authority to prohibit gambling.
In recognition of the fact that the ordinance upon which is based this prosecution goes beyond the
terms of the statutory authority, it is sought to find power to pass the same under the general welfare
clause (section 2238, Administrative Code of 1917). But the ordinance which imposes a fine and
imprisonment upon a man and wife who play a game of cards together as mere pastime, in their own
home, without risking a cent upon the outcome, is beyond the protection of such general provision
for two reasons. In the first place, it is unreasonably subversive of the liberty of the citizen an
unnecessary. In the second place, the Legislature of the Islands has spoken in well defined terms on
the subject of gambling, and its pronouncement on the subject fills the field and precludes the
possibility of stretching the authority delegated to municipalities into the right to repeal, modify, or
supplement existing legislation.
The subject of gambling has merited the attention of our Legislature and Act No. 1757 very clearly
defines the intention and will of that body in the premises. Its limitation of the prohibition is its refusal
to prohibit games of skill and games in which no value is at stake, and is the exact equivalent of a
pronouncement that non-gambling pastimes shall not be prohibited.

When the legislature authorized municipalities to "penalize . . . . gambling" it was aiming at the vice
of risking money upon the hazard of a game of chance. The Legislature has not prohibited the
playing of card games in itself an innocent pastime but the playing for money of games of
hazard. When it delegated like power to municipalities it had a like object in view and not other.
Equally untenable, to my mind, is the attempt to justify the statute under the "general welfare"
clause. The prohibition by ordinance of the playing of certain card games as an amusement, without
stake or wager, cannot be said to promote the health, safety, morals, peace, good order, comfort or
convenience of the inhabitants of a municipality. The majority opinion contends that the purpose of
the enactment was to "improve the morals and stimulate the industry of the people." Unfortunately
for that theory it appears that the ordinance expressly permits these "immoral" diversions on
Sundays and official holidays. I am unable to see how one's morals are to be improved by permitting
him to play panguingue, poker or burro all day Sunday, and then sending him to jail for engaging in
the same amusement Monday evening. So far as the "stimulation of . . . industry" is concerned, that
argument might have had some weight if the prohibition of these amusements had been limited to
working hours. But such is not the case. The inhabitants of Orion may play poker without a wager
to their heart's content on Sunday, but to do it Saturday evening, after the work of the week is
over, is prohibited their morals are to be "improved" and their industry "stimulated" until midnight.
After that they may yield to their depraved instincts until midnight of Sunday, without let or hindrance.
I submit that it is obvious that the ordinance in question wasintended to prevent gambling, but is not
warranted by the delegated authority of municipal councils over this subject, because it is so drawn
as to include harmless amusements not within the legislative definition of gambling. By limiting the
definition and prohibition of gambling to the playing for money of games of hazard, the Legislature by
implication permitted the playing of all other games not within the prohibition. Is the "general welfare"
clause of grant of power to municipal corporation to be so construed as to make the express
delegation of power redundant and useless? If under the general welfare clause the playing of whist
or chess in one's own house, not for money, but merely for amusement, may be prohibited under the
general welfare clause, certainly the power "to penalize and prohibit . . . gambling" must have been
included in that clause. If so, the special grant relating to gambling is merely redundant.
I submit that when a special power to enact ordinances is granted to a municipal council upon a
particular subject, the power as to that matter is to be measured by the express grant, without
enlargement by the interpretation of the general "welfare clause." The express grant of power to
regulate public dance halls (section 2243 [k], Administrative Code of 1917) is not be expanded under
the general "welfare clause" so as to authorize the prohibition and penalizing of dancing in private
houses. The express grant of power to establish and maintain streets cannot be expanded, under
the general welfare clause, this court has held, so as to authorize an ordinance to compel citizen to
clean the streets. (U.S. vs. Gaspay, 33 Phil. Rep., 96.)
I think the law on this subject is correctly expressed in Judge Dillon's authoritative work on Municipal
Corporations as follows:
When there are both special and general provisions, the power to pass by-laws under the
special or express grant can only be exercised in the cases and to the extent, as respects
those matters, allowed by the charter or incorporating act; and the power to pass by-laws
under the general clause does not enlarge or annul the power conferred by the special
provisions in relation to their various subject matters, but gives authority to pass by-laws,
reasonable in their character, upon all other matters within the scope of their municipal
authority, and not repugnant to the Constitution and general laws of the State.
But if we disregard entirely the delegated power relating to the prohibition of gambling and consider
the matter from the standpoint of the general welfare clause alone, it seems equally clear to me that

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

September 30, 1960

G.R. No. L-15305
THE CITY OF MANILA, plaintiff-appellant,
vs.
ARCADIO PALLUNGNA, defendant-appellee.
City Fiscal H. Concepcion, Jr. and Astt. City Fiscal A.H. Cusi for
appellant.
Ansberto Paredes for appellee.
BAUTISTA ANGELO, J.:
The City of Manila brought this action before the court of first
instance of said city against Arcadio Pallugna to recover the amount
of P2,923.75 being the difference between what the latter should

pay for the operation of seven (7) pinball machines under Ordinance
No. 3628 and what he actually paid under Ordinance No. 3347.
Defendant interposed the defense that Ordinance No. 3628 on which
plaintiff bases its claim is invalid for having been enacted in excess
of the power conferred by law upon it and, as a counterclaim, he
claims the amount of P745.75 as attorney's fee and expenses of
litigation.
The parties submitted a stipulation of facts from which the following
may be deduced: that defendant was granted license to operate
seven pinball machines during the effectivity of Ordinance No. 3628;
that said pinball machines are of the flipper type and defendant had
operated them from 1956 to April 24, 1957, having paid for their
operation a license fee of P12.50 a quarter for each machine, or a
total of P437.50; that on April 24, 1957, when defendant was
notified of the increase in the license fees under Ordinance No. 3628
he retired from business and ceased operating his pinball machines;
that on September 6, 1957, defendant was formally advised by the
city treasurer to pay a deficiency tax, including surcharge under said
ordinance, in the amount of P1,983.75 for the operation of said
seven pinball machines; and that on September 12, 1957, defendant
requested the city treasurer to desist from collecting the aforesaid
deficiency tax due to the pendency of a civil case pending in the
same court, but the request was unheeded and the present action
was brought.
The trial court, on February 23, 1959, rendered decision holding
Ordinance No. 3628 null and void following its ruling in some
previous cases wherein it held that said ordnance being a tax
measure adopted for the purpose of arising revenue is beyond the
power of the City of Manila to enact. Accordingly, it dismissed the
complaint without costs.
The City of Manila is now appealing from said decision assigning as
main error the finding of the trial court that Ordinance No. 3628 is

invalid for being a tax measure which cannot be enacted by said

city.
In Uy Ha vs. The City Mayor, et al., 108 Phil., 400; 58 Off. Gaz., (37)
5997, this Court held:
Since Ordinance No. 3628 seeks to regulate and license the
operation of "pinball machines" within the City of Manila upon
payment of an annual license of P300.00 for each "pinball
machines," the same is ultra vires, it being an exercise of power not
granted by law to the intervenor. As already stated, those devices
are prohibited by law and as such are not subject to regulation. The
attempt, therefore, on the part of the intervenor to collect the sum
of P4,620.00 as unpaid license fees under said ordinance cannot be
entertained.
It, therefore, appears that Ordinance No. 3628 is ultra vires, not
because it is a tax measure, but because it was enacted beyond the
power granted by law to the City of Manila. Hence, any attempt to
collect any license fee under said ordinance is illegal.
WHEREFORE, the decision appealed from is affirmed, without
pronouncement as to costs.
Paras, C.J., Bengzon, Padilla, Labrador, Concepcion, Reyes, J.B.L.,
Barrera, Gutierrez David, Paredes, and Dizon, JJ., concur.

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.

EUSEBIO PELINO, plaintiff-appellee,

vs.
JOSE ICHON, ET AL., defendants.
JOSE ICHON, appellant.
P. Salazar and F. Montejo for appellant.
Mateo Canonoy for appellee.

AVANCEA, C.J.:

The plaintiff is operating a cockpit in the municipality of Tanauan, under a license issued in
accordance with municipal ordinance No. 20 of 1935 authorizing the establishment of a single
cockpit in the municipality.
On March 15, 1938, the municipal council of Tanauan approved another ordinance No. 8 authorizing
as many cockpits as are applied for. The Municipal President vetoed this ordinance . The municipal
council, however, composed of six councilors, kept Ordinance No. 8 in being over the veto of the
president by a two-thirds vote of its members.
The defendant, in turn, obtained a license, pursuant to this ordinance No. 8, to operate another
cockpit in the same municipality.
On June 8, 1938, the plaintiff Eusebio Pelio brought this action against the municipal council of
Tanauan, asking that municipal ordinance No. 8 be declared null and void and that the defendant
Ichon be ordered to pay him, by way of damages, the amount of P2,000.
Upon petition of the plaintiff, the court, on April 9th of the same year, issued a writ of preliminary
injunction against the defendants, which writ was lifted by the filing of a bond put up by the
defendant Ichon.
The court declared ordinance No. 8 null and void, revived the writ of injunction issued against the
defendants and ordered the defendant Inchon to pay the plaintiff the sum of P2,000 by way of
damages. The defendants appealed form this decision.
The only ground of the appealed decision is annulling ordinance No. 8 is that the same is contrary to
the spirit of section 2338 of the Revised Administrative Code and is beyond the powers granted to
the municipal council by section 2243 of the same code.
The portion of ordinance No. 8 which led the court to declare it null and void is that one authorizing
as many cockpits in the municipality as there are applicants therefor. However, the municipal council
acted within its powers in enacting this ordinance. It is granted discretion by law to regulate or
prohibit cockpits (section 2243 of the Revised Administrative Code). While, according to this, the
municipal council may absolutely prohibit cockpits, nevertheless, when it does not so prohibit, they
are deemed to be authorized subject to its regulation. This power to regulate includes the power to
fix its number, inasmuch as the law neither fixes it nor limits it to one.
The court sentenced the defendant to pay the plaintiff P2,000 by way of damages on the theory that
the plaintiff suffered damages because of the establishment of defendant's cockpit. It is clearly seen
from the facts set out that no cause of action exists against the defendant. he operated his cockpit
pursuant to a license issued under ordinance No. 8, in the enactment of which he had absolutely
nothing to do.
lwphi1.nt

The appealed judgment is reversed,, ordinance No. 8 of the municipality of Tanauan, Leyte, is
declared valid, and the defendant, is absolved from the sentence to pay damages without special
pronouncement as to the costs. So ordered.
Villa-Real, Imperial, Diaz, Laurel, Concepcion and Moran, JJ., concur.
G.R. No. L-24693

July 31, 1967

ERMITA-MALATE HOTEL AND MOTEL OPERATORS ASSOCIATION, INC., HOTEL DEL MAR
INC. and GO CHIU, petitioners-appellees,
vs.
THE HONORABLE CITY MAYOR OF MANILA, respondent-appellant.
VICTOR ALABANZA, intervenor-appellee.
Panganiban, Abad and Associates Law Office for respondent-appellant.
J. M. Aruego, Tenchavez and Associates for intervenor-appellee.
FERNANDO, J.:
The principal question in this appeal from a judgment of the lower court in an action for prohibition is
whether Ordinance No. 4760 of the City of Manila is violative of the due process clause. The lower
court held that it is and adjudged it "unconstitutional, and, therefore, null and void." For reasons to be
more specifically set forth, such judgment must be reversed, there being a failure of the requisite
showing to sustain an attack against its validity.
The petition for prohibition against Ordinance No. 4760 was filed on July 5, 1963 by the petitioners,
Ermita-Malate Hotel and Motel Operators Association, one of its members, Hotel del Mar Inc., and a
certain Go Chiu, who is "the president and general manager of the second petitioner" against the
respondent Mayor of the City of Manila who was sued in his capacity as such "charged with the
general power and duty to enforce ordinances of the City of Manila and to give the necessary orders
for the faithful execution and enforcement of such ordinances." (par. 1). It was alleged that the
petitioner non-stock corporation is dedicated to the promotion and protection of the interest of its
eighteen (18) members "operating hotels and motels, characterized as legitimate businesses duly
licensed by both national and city authorities, regularly paying taxes, employing and giving livelihood
to not less than 2,500 person and representing an investment of more than P3 million." 1 (par. 2). It
was then alleged that on June 13, 1963, the Municipal Board of the City of Manila enacted
Ordinance No. 4760, approved on June 14, 1963 by the then Vice-Mayor Herminio Astorga, who
was at the time acting as Mayor of the City of Manila. (par. 3).
After which the alleged grievances against the ordinance were set forth in detail. There was the
assertion of its being beyond the powers of the Municipal Board of the City of Manila to enact insofar
as it would regulate motels, on the ground that in the revised charter of the City of Manila or in any
other law, no reference is made to motels; that Section 1 of the challenged ordinance is
unconstitutional and void for being unreasonable and violative of due process insofar as it would
impose P6,000.00 fee per annum for first class motels and P4,500.00 for second class motels; that
the provision in the same section which would require the owner, manager, keeper or duly
authorized representative of a hotel, motel, or lodging house to refrain from entertaining or accepting
any guest or customer or letting any room or other quarter to any person or persons without his filling
up the prescribed form in a lobby open to public view at all times and in his presence, wherein the
surname, given name and middle name, the date of birth, the address, the occupation, the sex, the
nationality, the length of stay and the number of companions in the room, if any, with the name,
relationship, age and sex would be specified, with data furnished as to his residence certificate as
well as his passport number, if any, coupled with a certification that a person signing such form has
personally filled it up and affixed his signature in the presence of such owner, manager, keeper or
duly authorized representative, with such registration forms and records kept and bound together, it
also being provided that the premises and facilities of such hotels, motels and lodging houses would

be open for inspection either by the City Mayor, or the Chief of Police, or their duly authorized
representatives is unconstitutional and void again on due process grounds, not only for being
arbitrary, unreasonable or oppressive but also for being vague, indefinite and uncertain, and likewise
for the alleged invasion of the right to privacy and the guaranty against self-incrimination; that
Section 2 of the challenged ordinance classifying motels into two classes and requiring the
maintenance of certain minimum facilities in first class motels such as a telephone in each room, a
dining room or, restaurant and laundry similarly offends against the due process clause for being
arbitrary, unreasonable and oppressive, a conclusion which applies to the portion of the ordinance
requiring second class motels to have a dining room; that the provision of Section 2 of the
challenged ordinance prohibiting a person less than 18 years old from being accepted in such
hotels, motels, lodging houses, tavern or common inn unless accompanied by parents or a lawful
guardian and making it unlawful for the owner, manager, keeper or duly authorized representative of
such establishments to lease any room or portion thereof more than twice every 24 hours, runs
counter to the due process guaranty for lack of certainty and for its unreasonable, arbitrary and
oppressive character; and that insofar as the penalty provided for in Section 4 of the challenged
ordinance for a subsequent conviction would, cause the automatic cancellation of the license of the
offended party, in effect causing the destruction of the business and loss of its investments, there is
once again a transgression of the due process clause.
There was a plea for the issuance of preliminary injunction and for a final judgment declaring the
above ordinance null and void and unenforceable. The lower court on July 6, 1963 issued a writ of
preliminary injunction ordering respondent Mayor to refrain from enforcing said Ordinance No. 4760
from and after July 8, 1963.
In the a answer filed on August 3, 1963, there was an admission of the personal circumstances
regarding the respondent Mayor and of the fact that petitioners are licensed to engage in the hotel or
motel business in the City of Manila, of the provisions of the cited Ordinance but a denial of its
alleged nullity, whether on statutory or constitutional grounds. After setting forth that the petition did
fail to state a cause of action and that the challenged ordinance bears a reasonable relation, to a
proper purpose, which is to curb immorality, a valid and proper exercise of the police power and that
only the guests or customers not before the court could complain of the alleged invasion of the right
to privacy and the guaranty against self incrimination, with the assertion that the issuance of the
preliminary injunction ex parte was contrary to law, respondent Mayor prayed for, its dissolution and
the dismissal of the petition.
Instead of evidence being offered by both parties, there was submitted a stipulation of facts dated
September 28, 1964, which reads:
1. That the petitioners Ermita-Malate Hotel and Motel Operators Association, Inc. and Hotel del Mar
Inc. are duly organized and existing under the laws of the Philippines, both with offices in the City of
Manila, while the petitioner Go Chin is the president and general manager of Hotel del Mar Inc., and
the intervenor Victor Alabanza is a resident of Baguio City, all having the capacity to sue and be
sued;
2. That the respondent Mayor is the duly elected and incumbent City Mayor and chief executive of
the City of Manila charged with the general power and duty to enforce ordinances of the City of
Manila and to give the necessary orders for the faithful execution and enforcement of such
ordinances;

3. That the petitioners are duly licensed to engage in the business of operating hotels and motels in
Malate and Ermita districts in Manila;
4. That on June 13, 1963, the Municipal Board of the City of Manila enacted Ordinance No. 4760,
which was approved on June 14, 1963, by Vice-Mayor Herminio Astorga, then the acting City Mayor
of Manila, in the absence of the respondent regular City Mayor, amending sections 661, 662, 668-a,
668-b and 669 of the compilation of the ordinances of the City of Manila besides inserting therein
three new sections. This ordinance is similar to the one vetoed by the respondent Mayor (Annex A)
for the reasons stated in its 4th Indorsement dated February 15, 1963 (Annex B);
5. That the explanatory note signed by then Councilor Herminio Astorga was submitted with the
proposed ordinance (now Ordinance 4760) to the Municipal Board, copy of which is attached hereto
as Annex C;
6. That the City of Manila derived in 1963 an annual income of P101,904.05 from license fees paid
by the 105 hotels and motels (including herein petitioners) operating in the City of Manila.
1wph1.t

Thereafter came a memorandum for respondent on January 22, 1965, wherein stress was laid on
the presumption of the validity of the challenged ordinance, the burden of showing its lack of
conformity to the Constitution resting on the party who assails it, citing not only U.S. v. Salaveria, but
likewise applicable American authorities. Such a memorandum likewise refuted point by point the
arguments advanced by petitioners against its validity. Then barely two weeks later, on February 4,
1965, the memorandum for petitioners was filed reiterating in detail what was set forth in the petition,
with citations of what they considered to be applicable American authorities and praying for a
judgment declaring the challenged ordinance "null and void and unenforceable" and making
permanent the writ of preliminary injunction issued.
After referring to the motels and hotels, which are members of the petitioners association, and
referring to the alleged constitutional questions raised by the party, the lower court observed: "The
only remaining issue here being purely a question of law, the parties, with the nod of the Court,
agreed to file memoranda and thereafter, to submit the case for decision of the Court." It does
appear obvious then that without any evidence submitted by the parties, the decision passed upon
the alleged infirmity on constitutional grounds of the challenged ordinance, dismissing as is
undoubtedly right and proper the untenable objection on the alleged lack of authority of the City of
Manila to regulate motels, and came to the conclusion that "the challenged Ordinance No. 4760 of
the City of Manila, would be unconstitutional and, therefore, null and void." It made permanent the
preliminary injunction issued against respondent Mayor and his agents "to restrain him from
enforcing the ordinance in question." Hence this appeal.
As noted at the outset, the judgment must be reversed. A decent regard for constitutional doctrines
of a fundamental character ought to have admonished the lower court against such a sweeping
condemnation of the challenged ordinance. Its decision cannot be allowed to stand, consistently with
what has hitherto been the accepted standards of constitutional adjudication, in both procedural and
substantive aspects.
Primarily what calls for a reversal of such a decision is the absence of any evidence to offset the
presumption of validity that attaches to a challenged statute or ordinance. As was expressed
categorically by Justice Malcolm: "The presumption is all in favor of validity x x x . The action of the

elected representatives of the people cannot be lightly set aside. The councilors must, in the very
nature of things, be familiar with the necessities of their particular municipality and with all the facts
and circumstances which surround the subject and necessitate action. The local legislative body, by
enacting the ordinance, has in effect given notice that the regulations are essential to the well being
of the people x x x . The Judiciary should not lightly set aside legislative action when there is not a
clear invasion of personal or property rights under the guise of police regulation. 2
It admits of no doubt therefore that there being a presumption of validity, the necessity for evidence
to rebut it is unavoidable, unless the statute or ordinance is void on its face which is not the case
here. The principle has been nowhere better expressed than in the leading case of O'Gorman &
Young v. Hartford Fire Insurance Co.,3 where the American Supreme Court through Justice Brandeis
tersely and succinctly summed up the matter thus: The statute here questioned deals with a subject
clearly within the scope of the police power. We are asked to declare it void on the ground that the
specific method of regulation prescribed is unreasonable and hence deprives the plaintiff of due
process of law. As underlying questions of fact may condition the constitutionality of legislation of this
character, the resumption of constitutionality must prevail in the absence of some factual foundation
of record for overthrowing the statute." No such factual foundation being laid in the present case, the
lower court deciding the matter on the pleadings and the stipulation of facts, the presumption of
validity must prevail and the judgment against the ordinance set aside.
Nor may petitioners assert with plausibility that on its face the ordinance is fatally defective as being
repugnant to the due process clause of the Constitution. The mantle of protection associated with
the due process guaranty does not cover petitioners. This particular manifestation of a police power
measure being specifically aimed to safeguard public morals is immune from such imputation of
nullity resting purely on conjecture and unsupported by anything of substance. To hold otherwise
would be to unduly restrict and narrow the scope of police power which has been properly
characterized as the most essential, insistent and the least limitable of powers, 4extending as it does
"to all the great public needs."5 It would be, to paraphrase another leading decision, to destroy the
very purpose of the state if it could be deprived or allowed itself to be deprived of its competence to
promote public health, public morals, public safety and the genera welfare. 6 Negatively put, police
power is "that inherent and plenary power in the State which enables it to prohibit all that is hurt full
to the comfort, safety, and welfare of society.7
There is no question but that the challenged ordinance was precisely enacted to minimize certain
practices hurtful to public morals. The explanatory note of the Councilor Herminio Astorga included
as annex to the stipulation of facts, speaks of the alarming increase in the rate of prostitution,
adultery and fornication in Manila traceable in great part to the existence of motels, which "provide a
necessary atmosphere for clandestine entry, presence and exit" and thus become the "ideal haven
for prostitutes and thrill-seekers." The challenged ordinance then proposes to check the clandestine
harboring of transients and guests of these establishments by requiring these transients and guests
to fill up a registration form, prepared for the purpose, in a lobby open to public view at all times, and
by introducing several other amendatory provisions calculated to shatter the privacy that
characterizes the registration of transients and guests." Moreover, the increase in the licensed fees
was intended to discourage "establishments of the kind from operating for purpose other than legal"
and at the same time, to increase "the income of the city government." It would appear therefore that
the stipulation of facts, far from sustaining any attack against the validity of the ordinance, argues
eloquently for it.

It is a fact worth noting that this Court has invariably stamped with the seal of its approval,
ordinances punishing vagrancy and classifying a pimp or procurer as a vagrant; 8 provide a license
tax for and regulating the maintenance or operation of public dance halls; 9 prohibiting
gambling;10 prohibiting jueteng;11 and monte;12prohibiting playing of panguingui on days other than
Sundays or legal holidays;13 prohibiting the operation of pinball machines;14 and prohibiting any
person from keeping, conducting or maintaining an opium joint or visiting a place where opium is
smoked or otherwise used,15 all of which are intended to protect public morals.
On the legislative organs of the government, whether national or local, primarily rest the exercise of
the police power, which, it cannot be too often emphasized, is the power to prescribe regulations to
promote the health, morals, peace, good order, safety and general welfare of the people. In view of
the requirements of due process, equal protection and other applicable constitutional guaranties
however, the exercise of such police power insofar as it may affect the life, liberty or property of any
person is subject to judicial inquiry. Where such exercise of police power may be considered as
either capricious, whimsical, unjust or unreasonable, a denial of due process or a violation of any
other applicable constitutional guaranty may call for correction by the courts.
We are thus led to considering the insistent, almost shrill tone, in which the objection is raised to the
question of due process.16 There is no controlling and precise definition of due process. It furnishes
though a standard to which the governmental action should conform in order that deprivation of life,
liberty or property, in each appropriate case, be valid. What then is the standard of due process
which must exist both as a procedural and a substantive requisite to free the challenged ordinance,
or any governmental action for that matter, from the imputation of legal infirmity sufficient to spell its
doom? It is responsiveness to the supremacy of reason, obedience to the dictates of justice.
Negatively put, arbitrariness is ruled out and unfairness avoided. To satisfy the due process
requirement, official action, to paraphrase Cardozo, must not outrun the bounds of reason and result
in sheer oppression. Due process is thus hostile to any official action marred by lack of
reasonableness. Correctly it has been identified as freedom from arbitrariness. It is the embodiment
of the sporting idea of fair play.17 It exacts fealty "to those strivings for justice" and judges the act of
officialdom of whatever branch "in the light of reason drawn from considerations of fairness that
reflect [democratic] traditions of legal and political thought." 18 It is not a narrow or "technical
conception with fixed content unrelated to time, place and circumstances," 19 decisions based on such
a clause requiring a "close and perceptive inquiry into fundamental principles of our
society."20 Questions of due process are not to be treated narrowly or pedantically in slavery to form
or phrases.21
It would thus be an affront to reason to stigmatize an ordinance enacted precisely to meet what a
municipal lawmaking body considers an evil of rather serious proportion an arbitrary and capricious
exercise of authority. It would seem that what should be deemed unreasonable and what would
amount to an abdication of the power to govern is inaction in the face of an admitted deterioration of
the state of public morals. To be more specific, the Municipal Board of the City of Manila felt the need
for a remedial measure. It provided it with the enactment of the challenged ordinance. A strong case
must be found in the records, and, as has been set forth, none is even attempted here to attach to
an ordinance of such character the taint of nullity for an alleged failure to meet the due process
requirement. Nor does it lend any semblance even of deceptive plausibility to petitioners' indictment
of Ordinance No. 4760 on due process grounds to single out such features as the increased fees for

motels and hotels, the curtailment of the area of freedom to contract, and, in certain particulars, its
alleged vagueness.
Admittedly there was a decided increase of the annual license fees provided for by the challenged
ordinance for hotels and motels, 150% for the former and over 200% for the latter, first-class motels
being required to pay a P6,000 annual fee and second-class motels, P4,500 yearly. It has been the
settled law however, as far back as 1922 that municipal license fees could be classified into those
imposed for regulating occupations or regular enterprises, for the regulation or restriction of nonuseful occupations or enterprises and for revenue purposes only.22 As was explained more in detail
in the above Cu Unjieng case: (2) Licenses for non-useful occupations are also incidental to the
police power and the right to exact a fee may be implied from the power to license and regulate, but
in fixing amount of the license fees the municipal corporations are allowed a much wider discretion in
this class of cases than in the former, and aside from applying the well-known legal principle that
municipal ordinances must not be unreasonable, oppressive, or tyrannical, courts have, as a general
rule, declined to interfere with such discretion. The desirability of imposing restraint upon the number
of persons who might otherwise engage in non-useful enterprises is, of course, generally an
important factor in the determination of the amount of this kind of license fee. Hence license fees
clearly in the nature of privilege taxes for revenue have frequently been upheld, especially in of
licenses for the sale of liquors. In fact, in the latter cases the fees have rarely been declared
unreasonable.23
Moreover in the equally leading case of Lutz v. Araneta24 this Court affirmed the doctrine earlier
announced by the American Supreme Court that taxation may be made to implement the state's
police power. Only the other day, this Court had occasion to affirm that the broad taxing authority
conferred by the Local Autonomy Act of 1959 to cities and municipalities is sufficiently plenary to
cover a wide range of subjects with the only limitation that the tax so levied is for public purposes,
just and uniform.25
As a matter of fact, even without reference to the wide latitude enjoyed by the City of Manila in
imposing licenses for revenue, it has been explicitly held in one case that "much discretion is given
to municipal corporations in determining the amount," here the license fee of the operator of a
massage clinic, even if it were viewed purely as a police power measure. 26 The discussion of this
particular matter may fitly close with this pertinent citation from another decision of significance: "It is
urged on behalf of the plaintiffs-appellees that the enforcement of the ordinance could deprive them
of their lawful occupation and means of livelihood because they can not rent stalls in the public
markets. But it appears that plaintiffs are also dealers in refrigerated or cold storage meat, the sale of
which outside the city markets under certain conditions is permitted x x x . And surely, the mere fact,
that some individuals in the community may be deprived of their present business or a particular
mode of earning a living cannot prevent the exercise of the police power. As was said in a case,
persons licensed to pursue occupations which may in the public need and interest be affected by the
exercise of the police power embark in these occupations subject to the disadvantages which may
result from the legal exercise of that power."27
Nor does the restriction on the freedom to contract, insofar as the challenged ordinance makes it
unlawful for the owner, manager, keeper or duly authorized representative of any hotel, motel,
lodging house, tavern, common inn or the like, to lease or rent room or portion thereof more than
twice every 24 hours, with a proviso that in all cases full payment shall be charged, call for a different

conclusion. Again, such a limitation cannot be viewed as a transgression against the command of
due process. It is neither unreasonable nor arbitrary. Precisely it was intended to curb the
opportunity for the immoral or illegitimate use to which such premises could be, and, according to
the explanatory note, are being devoted. How could it then be arbitrary or oppressive when there
appears a correspondence between the undeniable existence of an undesirable situation and the
legislative attempt at correction. Moreover, petitioners cannot be unaware that every regulation of
conduct amounts to curtailment of liberty which as pointed out by Justice Malcolm cannot be
absolute. Thus: "One thought which runs through all these different conceptions of liberty is plainly
apparent. It is this: 'Liberty' as understood in democracies, is not license; it is 'liberty regulated by
law.' Implied in the term is restraint by law for the good of the individual and for the greater good of
the peace and order of society and the general well-being. No man can do exactly as he pleases.
Every man must renounce unbridled license. The right of the individual is necessarily subject to
reasonable restraint by general law for the common good x x x The liberty of the citizen may be
restrained in the interest of the public health, or of the public order and safety, or otherwise within the
proper scope of the police power."28
A similar observation was made by Justice Laurel: "Public welfare, then, lies at the bottom of the
enactment of said law, and the state in order to promote the general welfare may interfere with
personal liberty, with property, and with business and occupations. Persons and property may be
subjected to all kinds of restraints and burdens, in order to secure the general comfort, health, and
prosperity of the state x x x To this fundamental aim of our Government the rights of the individual
are subordinated. Liberty is a blessing without which life is a misery, but liberty should not be made
to prevail over authority because then society will fall into anarchy. Neither should authority be made
to prevail over liberty because then the individual will fall into slavery. The citizen should achieve the
required balance of liberty and authority in his mind through education and personal discipline, so
that there may be established the resultant equilibrium, which means peace and order and
happiness for all.29
It is noteworthy that the only decision of this Court nullifying legislation because of undue deprivation
of freedom to contract, People v. Pomar,30 no longer "retains its virtuality as a living principle. The
policy of laissez faire has to some extent given way to the assumption by the government of the right
of intervention even in contractual relations affected with public interest. 31 What may be stressed
sufficiently is that if the liberty involved were freedom of the mind or the person, the standard for the
validity of governmental acts is much more rigorous and exacting, but where the liberty curtailed
affects at the most rights of property, the permissible scope of regulatory measure is wider.32 How
justify then the allegation of a denial of due process?
Lastly, there is the attempt to impugn the ordinance on another due process ground by invoking the
principles of vagueness or uncertainty. It would appear from a recital in the petition itself that what
seems to be the gravamen of the alleged grievance is that the provisions are too detailed and
specific rather than vague or uncertain. Petitioners, however, point to the requirement that a guest
should give the name, relationship, age and sex of the companion or companions as indefinite and
uncertain in view of the necessity for determining whether the companion or companions referred to
are those arriving with the customer or guest at the time of the registry or entering the room With him
at about the same time or coming at any indefinite time later to join him; a proviso in one of its
sections which cast doubt as to whether the maintenance of a restaurant in a motel is dependent
upon the discretion of its owners or operators; another proviso which from their standpoint would

require a guess as to whether the "full rate of payment" to be charged for every such lease thereof
means a full day's or merely a half-day's rate. It may be asked, do these allegations suffice to render
the ordinance void on its face for alleged vagueness or uncertainty? To ask the question is to answer
it. From Connally v. General Construction Co.33 toAdderley v. Florida,34 the principle has been
consistently upheld that what makes a statute susceptible to such a charge is an enactment either
forbidding or requiring the doing of an act that men of common intelligence must necessarily guess
at its meaning and differ as to its application. Is this the situation before us? A citation from Justice
Holmes would prove illuminating: "We agree to all the generalities about not supplying criminal laws
with what they omit but there is no canon against using common sense in construing laws as saying
what they obviously mean."35
That is all then that this case presents. As it stands, with all due allowance for the arguments
pressed with such vigor and determination, the attack against the validity of the challenged
ordinance cannot be considered a success. Far from it. Respect for constitutional law principles so
uniformly held and so uninterruptedly adhered to by this Court compels a reversal of the appealed
decision.
Wherefore, the judgment of the lower court is reversed and the injunction issued lifted forthwith. With
costs.
Reyes, J.B.L., Makalintal, Bengzon, J.P., Zaldivar, Sanchez, Castro and Angeles, JJ., concur.
Concepcion, C.J. and Dizon, J., are on leave.
Footnotes
The eighteen members are Waldorf Hotel, Hotel Monte Carlo, Golden Gate Motel, Miami Hotel,
Palm Spring Hotel, Flamingo Motel, Holiday Motel, Rainbow Motel, Palo Alto Hotel, Paradise Hotel,
Mayfair Hotel, Siesta Court, Sun Valley Hotel, Springfield Hotel, New Palace Hotel, Hotel del Mar
Longbeach Hotel and Ritz Motel.
1

U.S. V. Salaveria (1918), 39 Phil. 102, at p. 111. There was an affirmation of the presumption of
validity of municipal ordinance as announced in the leading Salaveria decision in Eboa v. Daet,
(1950) 85 Phil. 369.
2

282 US 251, 328, January 5, 1931.

Cf. Ichong v. Hernandez, (1957) 101 Phil. 1155, at p. 1163. Also: "To Frankfurter the police power,
true to its etymology is the power to shape policy. It defies legal definition; as a response to the
dynamic aspects of society, it cannot be reduced to a constitutional formula. The law must be
sensitive to life; in resolving cases, it must not fall back upon sterile claims; its judgments are not
derived from an abstract duel between liberty and the police power. Instead, in a world of trusts and
unions and large-scale industry, it must meet the challenge of drastic social change. For him as for
Holmes, 'society is more than bargain and business' and the jurist's art rises to no higher peak than
in vindicating interests not represented by the items in a balance-sheet. In a progressive society,
new interests emerge, new attitudes appeal, social consciousness quickens. In the face of the
unknown one cannot choose with certainty. Nor as yet, has the whole of truth been brought up from
its bottomless well and how fragile in scientific proof is the ultimate validity of any particular
economic adjustment. Social development is a process of trial and error; in the making of policy the
4

fullest possible opportunity must be given for the play of the human mind. If Congress or legislature
does not regulate, laissez faire not the individual must be the regulator. (Hamilton, Preview of a
Justice (1939) 48 Yale Law Journal, 819).
5

Noble state Bank v. Haskell, 219 U.S. 412.

U.S. v. Gomez-Jesus, (1915) 31 Phil. 218.

Rubi v. Provincial Board, (1918) 39 Phil. 660.

U.S. vs. Giner Cruz, (1918) 38 Phil. 677.

U.S. vs. Rodriguez, (1918) 38 Phil. 759. See also Sarmiento v. Belderol, L-15719, May 31, 1961;
Lapera v. Vicente, L-18102, June 30, 1962.
9

10

U.S. v. Pacis, (1915) 31 Phil. 524.

U.S. vs. Espiritu-Santo, (1912) 23 Phil. 610; U.S. vs. Joson, (1913) 26 Phil. 1; People vs. Chan
Hong, (1938) 65 Phil. 625.
11

12

U.S. v. Tamparong, (1915) 31 Phil. 321.

13

U.S. v. Salaveria, (1918) 39 Phil. 102.

Uy Ha v. The City Mayor, L-14149, May 30, 1969; Miranda v. City of Manila, L-17252, May 31,
1961.
14

15

U.S. v. Ten Yu, (1912) 24 Phil. 1.

There is no occasion to consider even cursorily the alleged invasion of the right of privacy or the
prohibition against self-incrimination. Petitioners obviously are not the proper parties to do so. Nor
may such an incurable defect be remedied by an accommodating intervenor "who has always taken
advantage of as he exclusively relies on, the facilities, services and accommodations offered by
petitioner-motels. A general merchant, doing business not only in Baguio City but in the City of
Manila, has no legitimate cause for complaint. At least, not according to the case as it has been
developed.
16

17

Frankfurter, Mr. Justice Holmes and the Supreme Court, (1938) pp. 32- 33.

18

Frankfurter, Hannah v. Larche, (1960) 363 U.S. 420, at 487.

19

Cafeteria Workers v. McElroy, (1961) 367 U.S. 1230.

20

Bartkus v. Illinois, (1959) 359 U.S. 121.

21

Pearson v. McGraw, (1939) 308 U.S. 313.

22

Cu Unjieng v. Postpone, (1922) 42 Phil. 818, 828.

Citing Swarth v. People, 109 Ill. 621; Dennehy v. City of Chicago, 120 Ill. 627; 12 N.E., 227; United
States Distilling Co. v. City of Chicago, 112 Ill. 19: Drew County v. Bennet, 43 Ark. 364; Merced
County v. Fleming, Ill Cal. 46; 43 Pac. 392; Williams v. City Council of West Point, 68 Ga. 816;
23

Cheny v. Shellbyville, 19 Ind. 84; Wiley y. Owens, 39 Ind. 429; Sweet v. City of Wabash, 41 Ind. 7;
Jones v. Grady, 25 La. Ann. 586; Goldsmith v. City of New Orleans, 31 La. Ann. 646; People ex
rel., Cramer v. Medberry, 39 N.Y.S. 207; 17 Misc. Rep., 8 ; McGuigan v. Town of Belmont, 89 Wis.
637; 62 N.W., 421; Ex parte Burnett 30 Ala. 461; Craig v. Burnett 32 Ala., 728, and Muhlenbrinck v.
Long Branch Commissioner, 42 N.J.L. 364; 36 Am. Rep., 518. At pp. 829-830.
98 Phil. 148 (1955), citing Great Atl & Pac. Tea Co. v Grosjean, 301 U.S. 412, 81 L. Ed. 1193; U.S.
v. Butler, 297 US 1, 80 L. Ed 477; M'Culloch v. Maryland, 4 Wheat 316, 4 L. Ed 579. The Lutz
decision was followed in Republic v. Bacolod Murcia Milling, L-19824, July 9, 1966.
24

25

Ormoc Sugar Co. v. Municipal Board of Ormoc City, L-24322, July 21, 1967.

26

Physical Therapy Organization v. Municipal Board, (1957) 101 Phil. 1142.

Co Kian & Lee Ban v. City of Manila, (1955) 96 Phil. 649, 654, citing City of New Orleans v.
Stafford, 27 L. Ann. 417.
27

Rubi v. Provincial Board, (1919) 39 Phil. 660, at 706, citing Hall v. Geiger-Jones (1916), 242 U.S.
539; Hardie-Tynes Manufacturing Co. vs. Cruz (1914), 189 Ala. 66.
28

29

Calalang v. Williams (1940), 70 Phil. 726, at 733-734.

46 Phil. 440 (1924). The Philippines was then under American sovereignty, American Supreme
Court decisions having thus an obligatory effect. No alternative was left to this Court except to follow
the then controlling decision in Adkins v. Children's Hospital (1924), 261 U.S. 525, which
subsequently was overruled in West Coast Hotel v. Parrish (1937), 300 U.S. 379.
30

Antamok Goldfields Mining Co. v. Court (1940), 70 Phil. 340, at 360, quoting a concurring opinion of
Justice Laurel in Ang Tibay v. Court, G.R. No. 46496.
31

Cf. "In weighing arguments of the parties it is important to distinguish between the due process
clause of the Fourteenth Amendment as an instrument for transmitting the principles of the First
Amendment and those cases in which it is applied for its own sake. The test of legislation which
collides with the Fourteenth Amendment because it also collides with the principles of the First, is
much more definite than the test when only the Fourteen is involved. Much of the vagueness of the
due process clause disappears when the specific prohibition of the First become its standard. The
right of a State to regulate, for example, a public utility may well include, so far as the due process
test is concerned, power to impose all of the restrictions which a legislature may have a 'rational
basis' for adopting. But freedoms of speech and of press, of assembly, and of worship may well be
infringed on such slender grounds. They are susceptible of restriction only to prevent an immediate
danger to interests which the state may lawfully protect." (West Virginia State Bd. of Edu v. Barnette,
(1942), 319 U.S. 624, at 639).
32

33

269 U.S. 385 (1926).

34

17 L. ed. 2d 149, Nov. 14, 1966.

35

Roschen v. Ward (1929), 279 U. S. 337,339.

G.R. No. L-42571-72 July 25, 1983

VICENTE DE LA CRUZ, RENATO ALIPIO, JOSE TORRES III, LEONCIO CORPUZ, TERESITA
CALOT, ROSALIA FERNANDEZ, ELIZABETH VELASCO, NANETTE VILLANUEVA, HONORATO
BUENAVENTURA, RUBEN DE CASTRO, VICENTE ROXAS, RICARDO DAMIAN, DOMDINO
ROMDINA, ANGELINA OBLIGACION, CONRADO GREGORIO, TEODORO REYES, LYDIA
ATRACTIVO, NAPOLEON MENDOZA, PERFECTO GUMATAY, ANDRES SABANGAN, ROSITA
DURAN, SOCORRO BERNARDEZ, and PEDRO GABRIEL,petitioners,
vs.
THE HONORABLE EDGARDO L. PARAS, MATIAS RAMIREZ as the Municipal Mayor, MARIO
MENDOZA as the Municipal Vice-Mayor, and THE MUNICIPAL COUNCIL OF BOCAUE,
BULACAN, respondents.
Federico N. Alday for petitioners.
Dakila F. Castro for respondents.

FERNANDO, C.J.:
The crucial question posed by this certiorari proceeding is whether or not a municipal corporation,
Bocaue, Bulacan, represented by respondents, 1 can, prohibit the exercise of a lawful trade, the
operation of night clubs, and the pursuit of a lawful occupation, such clubs employing hostesses. It is
contended that the ordinance assailed as invalid is tainted with nullity, the municipality being devoid of
power to prohibit a lawful business, occupation or calling, petitioners at the same time alleging that their
rights to due process and equal protection of the laws were violated as the licenses previously given to
them was in effect withdrawn without judicial hearing. 2
The assailed ordinance 3 is worded as follows: "Section 1. Title of Ordinance. This Ordinance shall
be known and may be cited as the [Prohibition and Closure Ordinance] of Bocaue, Bulacan. Section 2.
Definitions of Terms (a) 'Night Club' shall include any place or establishment selling to the public
food or drinks where customers are allowed to dance. (b) 'Cabaret' or 'Dance Hall' shall include any place
or establishment where dancing is permitted to the public and where professional hostesses or hospitality
girls and professional dancers are employed. (c) 'Professional hostesses' or 'hospitality girls' shall include
any woman employed by any of the establishments herein defined to entertain guests and customers at
their table or to dance with them. (d) 'Professional dancer' shall include any woman who dances at any of
the establishments herein defined for a fee or remuneration paid directly or indirectly by the operator or by
the persons she dances with. (e) 'Operator' shall include the owner, manager, administrator or any person
who operates and is responsible for the operation of any night club, cabaret or dance hall. Section 3.
Prohibition in the Issuance and Renewal of Licenses, Permits. Being the principal cause in the
decadence of morality and because of their other adverse effects on this community as explained above,
no operator of night clubs, cabarets or dance halls shall henceforth be issued permits/licenses to operate
within the jurisdiction of the municipality and no license/permit shall be issued to any professional
hostess, hospitality girls and professional dancer for employment in any of the aforementioned
establishments. The prohibition in the issuance of licenses/permits to said persons and operators of said
establishments shall include prohibition in the renewal thereof. Section 4. Revocation of Permits and
Licenses. The licenses and permits issued to operators of night clubs, cabarets or dance halls which
are now in operation including permits issued to professional hostesses, hospitality girls and professional

dancers are hereby revoked upon the expiration of the thirty-day period given them as provided in Section
8 hereof and thenceforth, the operation of these establishments within the jurisdiction of the municipality
shall be illegal. Section 5. Penalty in case of violation. Violation of any of the provisions of this
Ordinance shall be punishable by imprisonment not exceeding three (3) months or a fine not exceeding
P200.00 or both at the discretion of the Court. If the offense is committed by a juridical entity, the person
charged with the management and/or operation thereof shall be liable for the penalty provided herein.
Section 6. Separability Clause. If, for any reason, any section or provision of this Ordinance is held
unconstitutional or invalid, no other section or provision hereof shall be affected thereby. Section 7.
Repealing Clause. All ordinance, resolutions, circulars, memoranda or parts thereof that are
inconsistent with the provisions of this Ordinance are hereby repealed. Section 8. Effectivity. This
Ordinance shall take effect immediately upon its approval; provided, however, that operators of night
clubs, cabarets and dance halls now in operation including professional hostesses, hospitality girls and
professional dancers are given a period of thirty days from the approval hereof within which to wind up
their businesses and comply with the provisions of this Ordinance." 4

On November 5, 1975, two cases for prohibition with preliminary injunction were filed with the Court
of First Instance of Bulacan. 5 The grounds alleged follow:
1. Ordinance No. 84 is null and void as a municipality has no authority to prohibit a lawful business,
occupation or calling.
2. Ordinance No. 84 is violative of the petitioners' right to due process and the equal protection of the
law, as the license previously given to petitioners was in effect withdrawn without judicial hearing. 3.
That under Presidential Decree No. 189, as amended, by Presidential Decree No. 259, the power to
license and regulate tourist-oriented businesses including night clubs, has been transferred to the
Department of Tourism." 6 The cases were assigned to respondent Judge, now Associate Justice Paras
of the Intermediate Appellate Court, who issued a restraining order on November 7, 1975. The answers
were thereafter filed. It was therein alleged: " 1. That the Municipal Council is authorized by law not only
to regulate but to prohibit the establishment, maintenance and operation of night clubs invoking Section
2243 of the RAC, CA 601, Republic Acts Nos. 938, 978 and 1224. 2. The Ordinance No. 84 is not
violative of petitioners' right to due process and the equal protection of the law, since property rights are
subordinate to public interests. 3. That Presidential Decree No. 189, as amended, did not deprive
Municipal Councils of their jurisdiction to regulate or prohibit night clubs." 7There was the admission of the
following facts as having been established: "l. That petitioners Vicente de la Cruz, et al. in Civil Case No.
4755-M had been previously issued licenses by the Municipal Mayor of Bocaue-petitioner Jose Torres III,
since 1958; petitioner Vicente de la Cruz, since 1960; petitioner Renato Alipio, since 1961 and petitioner
Leoncio Corpuz, since 1972; 2. That petitioners had invested large sums of money in their businesses; 3.
That the night clubs are well-lighted and have no partitions, the tables being near each other; 4. That the
petitioners owners/operators of these clubs do not allow the hospitality girls therein to engage in immoral
acts and to go out with customers; 5. That these hospitality girls are made to go through periodic medical
check-ups and not one of them is suffering from any venereal disease and that those who fail to submit to
a medical check-up or those who are found to be infected with venereal disease are not allowed to work;
6. That the crime rate there is better than in other parts of Bocaue or in other towns of Bulacan." 8 Then
came on January 15, 1976 the decision upholding the constitutionality and validity of Ordinance No. 84
and dismissing the cases. Hence this petition for certiorari by way of appeal.
In an exhaustive as well as scholarly opinion, the lower court dismissed the petitions. Its rationale is
set forth in the opening paragraph thus: "Those who lust cannot last. This in essence is why the
Municipality of Bocaue, Province of Bulacan, stigmatized as it has been by innuendos of sexual

titillation and fearful of what the awesome future holds for it, had no alternative except to order thru
its legislative machinery, and even at the risk of partial economic dislocation, the closure of its night
clubs and/or cabarets. This in essence is also why this Court, obedient to the mandates of good
government, and cognizant of the categorical imperatives of the current legal and social revolution,
hereby [upholds] in the name of police power the validity and constitutionality of Ordinance No. 84,
Series of 1975, of the Municipal Council of Bocaue, Bulacan. The restraining orders heretofore
issued in these two cases are therefore hereby rifted, effective the first day of February, 1976, the
purpose of the grace period being to enable the petitioners herein to apply to the proper appellate
tribunals for any contemplated redress." 9 This Court is, however, unable to agree with such a
conclusion and for reasons herein set forth, holds that reliance on the police power is insufficient to justify
the enactment of the assailed ordinance. It must be declared null and void.
1. Police power is granted to municipal corporations in general terms as follows: "General power of
council to enact ordinances and make regulations. - The municipal council shall enact such
ordinances and make such regulations, not repugnant to law, as may be necessary to carry into
effect and discharge the powers and duties conferred upon it by law and such as shall seem
necessary and proper to provide for the health and safety, promote the prosperity, improve the
morals, peace, good order, comfort, and convenience of the municipality and the inhabitants thereof,
and for the protection of property therein." 10 It is practically a reproduction of the former Section 39 of
Municipal Code. 11 An ordinance enacted by virtue thereof, according to Justice Moreland, speaking for
the Court in the leading case of United States v. Abendan 12 "is valid, unless it contravenes the
fundamental law of the Philippine Islands, or an Act of the Philippine Legislature, or unless it is against
public policy, or is unreasonable, oppressive, partial, discriminating, or in derogation of common right.
Where the power to legislate upon a given subject, and the mode of its exercise and the details of such
legislation are not prescribed, the ordinance passed pursuant thereto must be a reasonable exercise of
the power, or it will be pronounced invalid." 13 In another leading case, United States v.
Salaveria, 14 the ponente this time being Justice Malcolm, where the present Administrative Code
provision was applied, it was stated by this Court: "The general welfare clause has two branches: One
branch attaches itself to the main trunk of municipal authority, and relates to such ordinances and
regulations as may be necessary to carry into effect and discharge the powers and duties conferred upon
the municipal council by law. With this class we are not here directly concerned. The second branch of the
clause is much more independent of the specific functions of the council which are enumerated by law. It
authorizes such ordinances as shall seem necessary and proper to provide for the health and safety,
promote the prosperity, improve the morals, peace, good order, comfort, and convenience of the
municipality and the inhabitants thereof, and for the protection of property therein.' It is a general rule that
ordinances passed by virtue of the implied power found in the general welfare clause must be reasonable,
consonant with the general powersand purposes of the corporation, and not inconsistent with the laws or
policy of the State." 15 If night clubs were merely then regulated and not prohibited, certainly the assailed
ordinance would pass the test of validity. In the two leading cases above set forth, this Court had stressed
reasonableness, consonant with the general powers and purposes of municipal corporations, as well as
consistency with the laws or policy of the State. It cannot be said that such a sweeping exercise of a
lawmaking power by Bocaue could qualify under the term reasonable. The objective of fostering public
morals, a worthy and desirable end can be attained by a measure that does not encompass too wide a
field. Certainly the ordinance on its face is characterized by overbreadth. The purpose sought to be
achieved could have been attained by reasonable restrictions rather than by an absolute prohibition. The
admonition in Salaveria should be heeded: "The Judiciary should not lightly set aside legislative action
when there is not a clear invasion of personal or property rights under the guise of police regulation." 16 It
is clear that in the guise of a police regulation, there was in this instance a clear invasion of personal or

property rights, personal in the case of those individuals desirous of patronizing those night clubs and
property in terms of the investments made and salaries to be earned by those therein employed.

2. The decision now under review refers to Republic Act No. 938 as amended. 17 It was originally
enacted on June 20, 1953. It is entitled: "AN ACT GRANTING MUNICIPAL OR CITY BOARDS AND
COUNCILS THE POWER TO REGULATE THE ESTABLISHMENT, MAINTENANCE AND OPERATION
OF CERTAIN PLACES OF AMUSEMENT WITHIN THEIR RESPECTIVE TERRITORIAL
JURISDICTIONS.' 18 Its first section insofar as pertinent reads: "The municipal or city board or council of
each chartered city shall have the power to regulate by ordinance the establishment, maintenance and
operation of night clubs, cabarets, dancing schools, pavilions, cockpits, bars, saloons, bowling alleys,
billiard pools, and other similar places of amusement within its territorial jurisdiction: ... " 19 Then on May
21, 1954, the first section was amended to include not merely "the power to regulate, but likewise
"Prohibit ... " 20 The title, however, remained the same. It is worded exactly as Republic Act No. 938. It is to
be admitted that as thus amended, if only the above portion of the Act were considered, a municipal
council may go as far as to prohibit the operation of night clubs. If that were all, then the appealed
decision is not devoid of support in law. That is not all, however. The title was not in any way altered. It
was not changed one whit. The exact wording was followed. The power granted remains that
of regulation, notprohibition. There is thus support for the view advanced by petitioners that to construe
Republic Act No. 938 as allowing the prohibition of the operation of night clubs would give rise to a
constitutional question. The Constitution mandates: "Every bill shall embrace only one subject which shall
be expressed in the title thereof. " 21 Since there is no dispute as the title limits the power to regulating, not
prohibiting, it would result in the statute being invalid if, as was done by the Municipality of Bocaue, the
operation of a night club was prohibited. There is a wide gap between the exercise of a regulatory power
"to provide for the health and safety, promote the prosperity, improve the morals, 22 in the language of the
Administrative Code, such competence extending to all "the great public needs, 23 to quote from Holmes,
and to interdict any calling, occupation, or enterprise. In accordance with the well-settled principle of
constitutional construction that between two possible interpretations by one of which it will be free from
constitutional infirmity and by the other tainted by such grave defect, the former is to be preferred. A
construction that would save rather than one that would affix the seal of doom certainly commends itself.
We have done so before We do so again. 24
3. There is reinforcement to the conclusion reached by virtue of a specific provision of the recentlyenacted Local Government Code. 25 The general welfare clause, a reiteration of the Administrative Code
provision, is set forth in the first paragraph of Section 149 defining the powers and duties of
the sangguniang bayan. It read as follows: "(a) Enact such ordinances and issue such regulations as may
be necessary to carry out and discharge the responsibilities conferred upon it by law, and such as shall be
necessary and proper to provide for the health, safety, comfort and convenience, maintain peace and
order, improve public morals, promote the prosperity and general welfare of the municipality and the
inhabitants thereof, and insure the protection of property therein; ..." 26 There are in addition provisions
that may have a bearing on the question now before this Court. Thus the sangguniang bayan shall "(rr)
Regulate cafes, restaurants, beer-houses, hotels, motels, inns, pension houses and lodging houses,
except travel agencies, tourist guides, tourist transports, hotels, resorts, de luxe restaurants, and tourist
inns of international standards which shall remain under the licensing and regulatory power of the Ministry
of Tourism which shall exercise such authority without infringing on the taxing or regulatory powers of the
municipality; (ss) Regulate public dancing schools, public dance halls, and sauna baths or massage
parlors; (tt) Regulate the establishment and operation of billiard pools, theatrical performances, circuses
and other forms of entertainment; ..." 27It is clear that municipal corporations cannot prohibit the operation
of night clubs. They may be regulated, but not prevented from carrying on their business. It would be,
therefore, an exercise in futility if the decision under review were sustained. All that petitioners would have

to do is to apply once more for licenses to operate night clubs. A refusal to grant licenses, because no
such businesses could legally open, would be subject to judicial correction. That is to comply with the
legislative will to allow the operation and continued existence of night clubs subject to appropriate
regulations. In the meanwhile, to compel petitioners to close their establishments, the necessary result of
an affirmance, would amount to no more than a temporary termination of their business. During such
time, their employees would undergo a period of deprivation. Certainly, if such an undesirable outcome
can be avoided, it should be. The law should not be susceptible to the reproach that it displays less than
sympathetic concern for the plight of those who, under a mistaken appreciation of a municipal power,
were thus left without employment. Such a deplorable consequence is to be avoided. If it were not thus,
then the element of arbitrariness enters the picture. That is to pay less, very much less, than full
deference to the due process clause with its mandate of fairness and reasonableness.

4. The conclusion reached by this Court is not to be interpreted as a retreat from its resolute stand
sustaining police power legislation to promote public morals. The commitment to such an Ideal
forbids such a backward step. Legislation of that character is deserving of the fullest sympathy from
the judiciary. Accordingly, the judiciary has not been hesitant to lend the weight of its support to
measures that can be characterized as falling within that aspect of the police power. Reference is
made by respondents to Ermita-Malate Hotel and Motel Operators Association, Inc. v. City Mayor of
Manila. 28 There is a misapprehension as to what was decided by this Court. That was a regulatory
measure. Necessarily, there was no valid objection on due process or equal protection grounds. It did not
prohibit motels. It merely regulated the mode in which it may conduct business in order precisely to put an
end to practices which could encourage vice and immorality. This is an entirely different case. What was
involved is a measure not embraced within the regulatory power but an exercise of an assumed power to
prohibit. Moreover, while it was pointed out in the aforesaid Ermita-Malate Hotel and Motel Operators
Association, Inc. decision that there must be a factual foundation of invalidity, it was likewise made clear
that there is no need to satisfy such a requirement if a statute were void on its face. That it certainly is if
the power to enact such ordinance is at the most dubious and under the present Local Government Code
non-existent.
WHEREFORE, the writ of certiorari is granted and the decision of the lower court dated January 15,
1976 reversed, set aside, and nullied. Ordinance No. 84, Series of 1975 of the Municipality of
Bocaue is declared void and unconstitutional. The temporary restraining order issued by this Court is
hereby made permanent. No costs.
Teehankee, Aquino, Concepcion Jr., Guerrero, Abad Santos, Plana, Escolin Relova and Gutierrez,
Jr., JJ., concur.
Makasiar, J, reserves his right to file a dissent.
De Castro, Melencio-Herrera and Vasquez, JJ., are on leave.

Footnotes
1 Municipal Mayor Matias Ramirez and Municipal Vice-Mayor Mario Mendoza.
2 Petition, 7. The other question raised was the jurisdiction of a municipal council to prohibit the
operation of nightclubs, it being alleged that the power of regulating tourist-oriented businesses
being granted to the then Department, now Ministry, of Tourism.

3 Ordinance No. 84, Series of 1975.

4 Ibid.
5 Vicente de la Cruz, et al. v. Matias Ramirez, et al., and Teresita Calot, et al. v. The Municipal
Mayor, docketed as Civil Cases Nos. 4755-M and 4756-M, respectively. On November 21, 1975, the
petition in one of the above cases was amended to raise the further issue of lack of authority of
respondent Municipal Officials to pass the ordinance in question, since the power to license,
supervise and regulate night clubs has been transferred to the Department of Tourism by virtue of
Presidential Decree No. 189, as amended.
6 Petition, 7.
7 Ibid, 8.
8 Ibid, 8-9.
9 Decision, Annex A to Petition 1.
10 Section 2238, Revised Administrative Code of the Philippines (1917).
11 Act No. 82 (1901).
12 24 Phil. 165 (1913). Abendan is followed in United States v. Tamparong, 31 Phil. 321 (1915);
United States v. Gaspay, 33 Phil. 96 (1915) and Sarmiento v. Balderol, 112 Phil. 394 (1961).
13 Ibid, 168. Cf. United States v. Ten Yu, 24 Phil. 1 (1912); Case v. Board of Health, 24 Phil. 250
(1913).
14 39 Phil. 102 (1918).
15 Ibid, 109-110.
16 Ibid, 111. In Salaveria though the ordinance penalizing the playing of panguingue on days not
Sundays or legal holidays was declared as valid.
17 It was amended by Republic Act No. 979 and Republic Act No. 1224.
18 Title of Republic Act No. 938 as amended.
19 Republic Act No. 938, Section 1.
20 Republic Act No. 979, Section 1.
21 Article VIII, Section 19, par. 1 of the Constitution.
22 Section 2238.
23 Otis v. Parker, 187 US 606 (1902).

24 Cf. Nuez v. Sandiganbayan, G.R. Nos. 50581-50617, January 30, 1982, 111 SCRA 433.
Separate opinion of Justice Makasiar. De la Llana v. Alba, G.R. No. 57883, March 12,1982,112
SCRA 294.
25 Batas Pambansa Blg. 337 (1983). Under Section 234 of the Code it took effect one month after
its publication in the Official Gazette. It was published in the issue of February 14,1983.
26 Ibid, Section 149 (1) (a).
27 Ibid, Section 149 (1) (rr, ss and tt ).
28 L-24693, 20 SCRA 849, July 31, 1967.

CITY OF MANILA, HON. ALFREDO S. LIM as the Mayor of the City of

Manila, HON. JOSELITO L. ATIENZA, in his capacity as ViceMayor of the City of Manila and Presiding Officer of the City
Council of Manila, HON. ERNESTO A. NIEVA, HON. GONZALO P.
GONZALES, HON. AVELINO S. CAILIAN, HON. ROBERTO C.
OCAMPO, HON. ALBERTO DOMINGO, HON. HONORIO U.
LOPEZ, HON. FRANCISCO G. VARONA, JR., HON. ROMUALDO
S. MARANAN, HON. NESTOR C. PONCE, JR., HON. HUMBERTO
B. BASCO, HON. FLAVIANO F. CONCEPCION, JR., HON. ROMEO
G. RIVERA, HON. MANUEL M. ZARCAL, HON. PEDRO S. DE
JESUS, HON. BERNARDITO C. ANG, HON. MANUEL L. QUIN,
HON. JHOSEP Y. LOPEZ, HON. CHIKA G. GO, HON. VICTORIANO
A. MELENDEZ, HON. ERNESTO V.P. MACEDA, JR., HON.
ROLANDO P. NIETO, HON. DANILO V. ROLEDA, HON. GERINO A.
TOLENTINO, JR., HON. MA. PAZ E. HERRERA, HON. JOEY D.
HIZON, HON. FELIXBERTO D. ESPIRITU, HON. KARLO Q.
BUTIONG, HON. ROGELIO P. DELA PAZ, HON. BERNARDO D.
RAGAZA, HON. MA. CORAZON R. CABALLES, HON. CASIMIRO
C. SISON, HON. BIENVINIDO M. ABANTE, JR., HON. MA.
LOURDES M. ISIP, HON. ALEXANDER S. RICAFORT, HON.
ERNESTO F. RIVERA, HON. LEONARDO L. ANGAT, and HON.
JOCELYN B. DAWIS, in their capacity as councilors of the City of
Manila, petitioners, vs. HON. PERFECTO A.S. LAGUIO, JR., as
Presiding Judge, RTC, Manila and MALATE TOURIST
DEVELOPMENT CORPORATION, respondents.
DECISION
TINGA, J.:

I know only that what is moral is what you feel good after and what is immoral is
what you feel bad after.
Ernest Hermingway
Death in the Afternoon, Ch. 1
It is a moral and political axiom that any dishonorable act, if performed by oneself, is
less immoral than if performed by someone else, who would be well-intentioned in his
dishonesty.
J. Christopher Gerald
Bonaparte in Egypt, Ch. I
The Courts commitment to the protection of morals is secondary to its fealty to the
fundamental law of the land. It is foremost a guardian of the Constitution but not the
conscience of individuals. And if it need be, the Court will not hesitate to make the
hammer fall, and heavily in the words of Justice Laurel, and uphold the constitutional
guarantees when faced with laws that, though not lacking in zeal to promote morality,
nevertheless fail to pass the test of constitutionality.
The pivotal issue in this Petition under Rule 45 (then Rule 42) of the Revised Rules
on Civil Procedure seeking the reversal of the Decision in Civil Case No. 93-66511 of
the Regional Trial Court (RTC) of Manila, Branch 18 (lower court), is the validity of
Ordinance No. 7783 (the Ordinance) of the City of Manila.
[1]

[2]

[3]

[4]

The antecedents are as follows:

Private respondent Malate Tourist Development Corporation (MTDC) is a
corporation engaged in the business of operating hotels, motels, hostels and lodging
houses. It built and opened Victoria Court in Malate which was licensed as a motel
although duly accredited with the Department of Tourism as a hotel. On 28 June 1993,
MTDC filed a Petition for Declaratory Relief with Prayer for a Writ of Preliminary
Injunction and/or Temporary Restraining Order (RTC Petition) with the lower court
impleading as defendants, herein petitioners City of Manila, Hon. Alfredo S. Lim (Lim),
Hon. Joselito L. Atienza, and the members of the City Council of Manila (City Council).
MTDC prayed that the Ordinance, insofar as it includes motels and inns as among its
prohibited establishments, be declared invalid and unconstitutional.
[5]

[6]

[7]

[8]

Enacted by the City Council on 9 March 1993 and approved by petitioner City
Mayor on 30 March 1993, the said Ordinance is entitled
[9]

AN ORDINANCE PROHIBITING THE ESTABLISHMENT OR OPERATION OF

BUSINESSES PROVIDING CERTAIN FORMS OF AMUSEMENT,
ENTERTAINMENT, SERVICES AND FACILITIES IN THE ERMITA-MALATE
AREA, PRESCRIBING PENALTIES FOR VIOLATION THEREOF, AND FOR
OTHER PURPOSES.
[10]

The Ordinance is reproduced in full, hereunder:

SECTION 1. Any provision of existing laws and ordinances to the contrary

notwithstanding, no person, partnership, corporation or entity shall, in the
Ermita-Malate area bounded by Teodoro M. Kalaw Sr. Street in the North, Taft
Avenue in the East, Vito Cruz Street in the South and Roxas Boulevard in the West,
pursuant to P.D. 499 be allowed or authorized to contract and engage in, any
business providing certain forms of amusement, entertainment, services and
facilities where women are used as tools in entertainment and which tend to
disturb the community, annoy the inhabitants, and adversely affect the social and
moral welfare of the community, such as but not limited to:
1. Sauna Parlors
2. Massage Parlors
3. Karaoke Bars
4. Beerhouses
5. Night Clubs
6. Day Clubs
7. Super Clubs
8. Discotheques
9. Cabarets
10. Dance Halls
11. Motels
12. Inns

SEC. 2 The City Mayor, the City Treasurer or any person acting in behalf of the
said officials are prohibited from issuing permits, temporary or otherwise, or
from granting licenses and accepting payments for the operation of business
enumerated in the preceding section.
SEC. 3. Owners and/or operator of establishments engaged in, or devoted to, the
businesses enumerated in Section 1 hereof are hereby given three (3) months from
the date of approval of this ordinance within which to wind up business
operations or to transfer to any place outside of the Ermita-Malate area or
convert said businesses to other kinds of business allowable within the area,such
as but not limited to:
1. Curio or antique shop
2. Souvenir Shops
3. Handicrafts display centers
4. Art galleries
5. Records and music shops
6. Restaurants
7. Coffee shops
8. Flower shops

9. Music lounge and sing-along restaurants, with well-defined activities for

wholesome family entertainment that cater to both local and foreign clientele.
10. Theaters engaged in the exhibition, not only of motion pictures but
also of cultural shows, stage and theatrical plays, art exhibitions, concerts and the
like.
11. Businesses allowable within the law and medium intensity districts as
provided for in the zoning ordinances for Metropolitan Manila, except new
warehouse or open-storage depot, dock or yard, motor repair shop, gasoline service
station, light industry with any machinery, or funeral establishments.

SEC. 4. Any person violating any provisions of this ordinance, shall upon
conviction, be punished by imprisonment of one (1) year or fine of FIVE
THOUSAND (P5,000.00) PESOS, or both, at the discretion of the Court,
PROVIDED, that in case of juridical person, the President, the General Manager, or
person-in-charge of operation shall be liable thereof; PROVIDED FURTHER, that in
case of subsequent violation and conviction, the premises of the erring
establishment shall be closed and padlocked permanently.
SEC. 5. This ordinance shall take effect upon approval.
Enacted by the City Council of Manila at its regular session today, March 9, 1993.
Approved by His Honor, the Mayor on March 30, 1993. (Emphasis supplied)
In the RTC Petition, MTDC argued that the Ordinance erroneously and improperly
included in its enumeration of prohibited establishments, motels and inns such as
MTDCs Victoria Court considering that these were not establishments for amusement
or entertainment and they were not services or facilities for entertainment, nor did
they use women as tools for entertainment, and neither did they disturb the
community, annoy the inhabitants or adversely affect the social and moral welfare of
the community.
[11]

MTDC further advanced that the Ordinance was invalid and unconstitutional for the
following reasons: (1) The City Council has no power to prohibit the operation of motels
as Section 458 (a) 4 (iv) of the Local Government Code of 1991 (the Code) grants to
the City Council only the power to regulate the establishment, operation and
maintenance of hotels, motels, inns, pension houses, lodging houses and other similar
establishments; (2) The Ordinance is void as it is violative of Presidential Decree (P.D.)
No. 499 which specifically declared portions of the Ermita-Malate area as a
commercial zone with certain restrictions; (3) The Ordinance does not 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; (4)
The Ordinance constitutes an ex post facto law by punishing the operation of Victoria
Court which was a legitimate business prior to its enactment; (5) The Ordinance violates
MTDCs constitutional rights in that: (a) it is confiscatory and constitutes an invasion of
plaintiffs property rights; (b) the City Council has no power to find as a fact that a
[12]

[13]

particular thing is a nuisance per se nor does it have the power to extrajudicially destroy
it; and (6) TheOrdinance constitutes a denial of equal protection under the law as no
reasonable basis exists for prohibiting the operation of motels and inns, but not pension
houses, hotels, lodging houses or other similar establishments, and for prohibiting said
business in the Ermita-Malate area but not outside of this area.
[14]

In their Answer dated 23 July 1993, petitioners City of Manila and Lim maintained
that the City Council had the power to prohibit certain forms of entertainment in order to
protect the social and moral welfare of the community as provided for in Section 458
(a) 4 (vii) of the Local Government Code, which reads, thus:
[15]

[16]

Section 458. Powers, Duties, Functions and Compensation. (a) The sangguniang
panlungsod, as the legislative body of the city, shall enact ordinances, approve
resolutions and appropriate funds for the general welfare of the city and its inhabitants
pursuant to Section 16 of this Code and in the proper exercise of the corporate powers
of the city as provided for under Section 22 of this Code, and shall:
....
(4) Regulate activities relative to the use of land, buildings and structures within the
city in order to promote the general welfare and for said purpose shall:
....
(vii) Regulate the establishment, operation, and maintenance of any
entertainment or amusement facilities, including theatrical performances,
circuses, billiard pools, public dancing schools, public dance halls, sauna
baths, massage parlors, and other places for entertainment or amusement;
regulate such other events or activities for amusement or entertainment,
particularly those which tend to disturb the community or annoy the
inhabitants, or require the suspension or suppression of the same; or, prohibit
certain forms of amusement or entertainment in order to protect the social and
moral welfare of the community.
Citing Kwong Sing v. City of Manila, petitioners insisted that the power of
regulation spoken of in the above-quoted provision included the power to control, to
govern and to restrain places of exhibition and amusement.
[17]

[18]

Petitioners likewise asserted that the Ordinance was enacted by the City Council of
Manila to protect the social and moral welfare of the community in conjunction with its
police power as found in Article III, Section 18(kk) of Republic Act No. 409, otherwise
known as the Revised Charter of the City of Manila (Revised Charter of Manila) which
reads, thus:
[19]

[20]

ARTICLE III

THE MUNICIPAL BOARD

. . .
Section 18. Legislative powers. The Municipal Board shall have the
following legislative powers:
. . .
(kk) To enact all ordinances it may deem necessary and proper for the
sanitation and safety, the furtherance of the prosperity, and the promotion of
the morality, peace, good order, comfort, convenience, and general welfare of
the city and its inhabitants, and such others as may be necessary to carry into
effect and discharge the powers and duties conferred by this chapter; and to
fix penalties for the violation of ordinances which shall not exceed two
hundred pesos fine or six months imprisonment, or both such fine and
imprisonment, for a single offense.
Further, the petitioners noted, the Ordinance had the presumption of validity; hence,
private respondent had the burden to prove its illegality or unconstitutionality.
[21]

Petitioners also maintained that there was no inconsistency between P.D. 499 and
the Ordinance as the latter simply disauthorized certain forms of businesses and
allowed the Ermita-Malate area to remain a commercial zone. The Ordinance, the
petitioners likewise claimed, cannot be assailed as ex post facto as it was prospective in
operation. The Ordinance also did not infringe the equal protection clause and cannot
be denounced as class legislation as there existed substantial and real differences
between the Ermita-Malate area and other places in the City of Manila.
[22]

[23]

[24]

On 28 June 1993, respondent Judge Perfecto A.S. Laguio, Jr. (Judge Laguio)
issued an ex-parte temporary restraining order against the enforcement of
the Ordinance. And on 16 July 1993, again in an intrepid gesture, he granted the writ
of preliminary injunction prayed for by MTDC.
[25]

[26]

After trial, on 25 November 1994, Judge Laguio rendered the assailed Decision,
enjoining the petitioners from implementing the Ordinance. The dispositive portion of
said Decisionreads:
[27]

WHEREFORE, judgment is hereby rendered declaring Ordinance No. 778[3], Series

of 1993, of the City of Manila null and void, and making permanent the writ of
preliminary injunction that had been issued by this Court against the defendant. No
costs.
SO ORDERED.

[28]

Petitioners filed with the lower court a Notice of Appeal on 12 December 1994,
manifesting that they are elevating the case to this Court under then Rule 42 on pure
questions of law.
[29]

[30]

On 11 January 1995, petitioners filed the present Petition, alleging that the following
errors were committed by the lower court in its ruling: (1) It erred in concluding that the
subject ordinance is ultra vires, or otherwise, unfair, unreasonable and oppressive
exercise
of
police
power;
(2)
It
erred
in
holding
that
the
questioned Ordinance contravenes P.D. 499 which allows operators of all kinds of
commercial establishments, except those specified therein; and (3) It erred in declaring
the Ordinance void and unconstitutional.
[31]

[32]

In the Petition and in its Memorandum, petitioners in essence repeat the

assertions they made before the lower court. They contend that the
assailed Ordinance was enacted in the exercise of the inherent and plenary power of
the State and the general welfare clause exercised by local government units provided
for in Art. 3, Sec. 18 (kk) of the Revised Charter of Manila and conjunctively, Section
458 (a) 4 (vii) of the Code. They allege that the Ordinance is a valid exercise of police
power; it does not contravene P.D. 499; and that it enjoys the presumption of validity.
[33]

[34]

[35]

In its Memorandum dated 27 May 1996, private respondent maintains that

the Ordinance is ultra vires and that it is void for being repugnant to the general law. It
reiterates that the questioned Ordinance is not a valid exercise of police power; that it is
violative of due process, confiscatory and amounts to an arbitrary interference with its
lawful business; that it is violative of the equal protection clause; and that it confers on
petitioner City Mayor or any officer unregulated discretion in the execution of
the Ordinance absent rules to guide and control his actions.
[36]

This is an opportune time to express the Courts deep sentiment and tenderness for
the Ermita-Malate area being its home for several decades. A long-time resident, the
Court witnessed the areas many turn of events. It relished its glory days and endured
its days of infamy. Much as the Court harks back to the resplendent era of the Old
Manila and yearns to restore its lost grandeur, it believes that the Ordinance is not the
fitting means to that end. The Court is of the opinion, and so holds, that the lower court
did not err in declaring theOrdinance, as it did, ultra vires and therefore null and void.
The Ordinance is so replete with constitutional infirmities that almost every sentence
thereof violates a constitutional provision. The prohibitions and sanctions therein
transgress the cardinal rights of persons enshrined by the Constitution. The Court is
called upon to shelter these rights from attempts at rendering them worthless.
The tests of a valid ordinance are well established. A long line of decisions has held
that for an ordinance to be valid, it must not only be within the corporate powers of the
local government unit to enact and must be passed according to the procedure
prescribed by law, it must also conform to the following substantive requirements: (1)
must not contravene the Constitution or any statute; (2) must not be unfair or
oppressive; (3) must not be partial or discriminatory; (4) must not prohibit but may
regulate trade; (5) must be general and consistent with public policy; and (6) must not
be unreasonable.
[37]

Anent the first criterion, ordinances shall only be valid when they are not contrary to
the Constitution and to the laws. The Ordinance must satisfy two requirements: it must
pass muster under the test of constitutionality and the test of consistency with the
prevailing laws. That ordinances should be constitutional uphold the principle of the
supremacy of the Constitution. The requirement that the enactment must not violate
existing law gives stress to the precept that local government units are able to legislate
only by virtue of their derivative legislative power, a delegation of legislative power from
the national legislature. The delegate cannot be superior to the principal or exercise
powers higher than those of the latter.
[38]

[39]

This relationship between the national legislature and the local government units
has not been enfeebled by the new provisions in the Constitution strengthening the
policy of local autonomy. The national legislature is still the principal of the local
government units, which cannot defy its will or modify or violate it.
[40]

The Ordinance was passed by the City Council in the exercise of its police power,
an enactment of the City Council acting as agent of Congress. Local government units,
as agencies of the State, are endowed with police power in order to effectively
accomplish and carry out the declared objects of their creation. This delegated police
power is found in Section 16 of the Code, known as the general welfare clause, viz:
[41]

SECTION 16. General Welfare. Every local government unit shall exercise the
powers expressly granted, those necessarily implied therefrom, as well as powers
necessary, appropriate, or incidental for its efficient and effective governance, and
those which are essential to the promotion of the general welfare. Within their
respective territorial jurisdictions, local government units shall ensure and support,
among other things, the preservation and enrichment of culture, promote health and
safety, enhance the right of the people to a balanced ecology, encourage and support
the development of appropriate and self-reliant scientific and technological
capabilities, improve public morals, enhance economic prosperity and social justice,
promote full employment among their residents, maintain peace and order, and
preserve the comfort and convenience of their inhabitants.
Local government units exercise police power through their respective legislative
bodies; in this case, the sangguniang panlungsod or the city council. The Code
empowers the legislative bodies to enact ordinances, approve resolutions and
appropriate funds for the general welfare of the province/city/municipality and its
inhabitants pursuant to Section 16 of the Code and in the proper exercise of the
corporate powers of the province/city/ municipality provided under the Code. The
inquiry in this Petition is concerned with the validity of the exercise of such delegated
power.
[42]

The Ordinance contravenes

the Constitution

The police power of the City Council, however broad and far-reaching, is
subordinate to the constitutional limitations thereon; and is subject to the limitation that
its exercise must be reasonable and for the public good. In the case at bar, the
enactment of the Ordinance was an invalid exercise of delegated power as it is
unconstitutional and repugnant to general laws.
[43]

The relevant constitutional provisions are the following:

SEC. 5. The maintenance of peace and order, the protection of life, liberty, and
property, and the promotion of the general welfare are essential for the enjoyment by
all the people of the blessings of democracy.
[44]

SEC. 14. The State recognizes the role of women in nation-building, and shall ensure
the fundamental equality before the law of women and men.
[45]

SEC. 1. No person shall be deprived of life, liberty or property without due process of
law, nor shall any person be denied the equal protection of laws.
[46]

Sec. 9. Private property shall not be taken for public use without just compensation.

[47]

A. The Ordinance infringes

the Due Process Clause
The constitutional safeguard of due process is embodied in the fiat (N)o person
shall be deprived of life, liberty or property without due process of law. . . .
[48]

There is no controlling and precise definition of due process. It furnishes though a

standard to which governmental action should conform in order that deprivation of life,
liberty or property, in each appropriate case, be valid. This standard is aptly described
as a responsiveness to the supremacy of reason, obedience to the dictates of justice,
and as such it is a limitation upon the exercise of the police power.
[49]

[50]

The purpose of the guaranty is to prevent governmental encroachment against the

life, liberty and property of individuals; to secure the individual from the arbitrary
exercise of the powers of the government, unrestrained by the established principles of
private rights and distributive justice; to protect property from confiscation by legislative
enactments, from seizure, forfeiture, and destruction without a trial and conviction by the
ordinary mode of judicial procedure; and to secure to all persons equal and impartial
justice and the benefit of the general law.
[51]

The guaranty serves as a protection against arbitrary regulation, and private

corporations and partnerships are persons within the scope of the guaranty insofar as
their property is concerned.
[52]

This clause has been interpreted as imposing two separate limits on government,
usually called procedural due process and substantive due process.

Procedural due process, as the phrase implies, refers to the procedures that the
government must follow before it deprives a person of life, liberty, or property. Classic
procedural due process issues are concerned with what kind of notice and what form of
hearing the government must provide when it takes a particular action.
[53]

Substantive due process, as that phrase connotes, asks whether the government
has an adequate reason for taking away a persons life, liberty, or property. In other
words, substantive due process looks to whether there is a sufficient justification for the
governments action. Case law in the United States (U.S.) tells us that whether there is
such a justification depends very much on the level of scrutiny used. For example, if a
law is in an area where only rational basis review is applied, substantive due process is
met so long as the law is rationally related to a legitimate government purpose. But if it
is an area where strict scrutiny is used, such as for protecting fundamental rights, then
the government will meet substantive due process only if it can prove that the law is
necessary to achieve a compelling government purpose.
[54]

[55]

[56]

The police power granted to local government units must always be exercised with
utmost observance of the rights of the people to due process and equal protection of the
law. Such power cannot be exercised whimsically, arbitrarily or despotically as its
exercise is subject to a qualification, limitation or restriction demanded by the respect
and regard due to the prescription of the fundamental law, particularly those forming
part of the Bill of Rights. Individual rights, it bears emphasis, may be adversely affected
only to the extent that may fairly be required by the legitimate demands of public interest
or public welfare. Due process requires the intrinsic validity of the law in interfering
with the rights of the person to his life, liberty and property.
[57]

[58]

[59]

Requisites for the valid exercise

of Police Power are not met
To successfully invoke the exercise of police power as the rationale for the
enactment of the Ordinance, and to free it from the imputation of constitutional infirmity,
not only must it appear that the interests of the public generally, as distinguished from
those of a particular class, require an interference with private rights, but the means
adopted must be reasonably necessary for the accomplishment of the purpose and not
unduly oppressive upon individuals. It must be evident that no other alternative for the
accomplishment of the purpose less intrusive of private rights can work. A reasonable
relation must exist between the purposes of the police measure and the means
employed for its accomplishment, for even under the guise of protecting the public
interest, personal rights and those pertaining to private property will not be permitted to
be arbitrarily invaded.
[60]

[61]

Lacking a concurrence of these two requisites, the police measure shall be struck
down as an arbitrary intrusion into private rights a violation of the due process
clause.
[62]

The Ordinance was enacted to address and arrest the social ills purportedly
spawned by the establishments in the Ermita-Malate area which are allegedly operated
under the deceptive veneer of legitimate, licensed and tax-paying nightclubs, bars,

karaoke bars, girlie houses, cocktail lounges, hotels and motels. Petitioners insist that
even the Court in the case of Ermita-Malate Hotel and Motel Operators Association, Inc.
v. City Mayor of Manila had already taken judicial notice of the alarming increase in
the rate of prostitution, adultery and fornication in Manila traceable in great part to
existence of motels, which provide a necessary atmosphere for clandestine entry,
presence and exit and thus become the ideal haven for prostitutes and thrill-seekers.
[63]

[64]

The object of the Ordinance was, accordingly, the promotion and protection of the
social and moral values of the community. Granting for the sake of argument that the
objectives of theOrdinance are within the scope of the City Councils police powers, the
means employed for the accomplishment thereof were unreasonable and unduly
oppressive.
It is undoubtedly one of the fundamental duties of the City of Manila to make all
reasonable regulations looking to the promotion of the moral and social values of the
community. However, the worthy aim of fostering public morals and the eradication of
the communitys social ills can be achieved through means less restrictive of private
rights; it can be attained by reasonable restrictions rather than by an absolute
prohibition. The closing down and transfer of businesses or their conversion into
businesses allowed under the Ordinance have no reasonable relation to the
accomplishment of its purposes. Otherwise stated, the prohibition of the enumerated
establishments will not per se protect and promote the social and moral welfare of the
community; it will not in itself eradicate the alluded social ills of prostitution, adultery,
fornication nor will it arrest the spread of sexual disease in Manila.
Conceding for the nonce that the Ermita-Malate area teems with houses of ill-repute
and establishments of the like which the City Council may lawfully prohibit, it is
baseless and insupportable to bring within that classification sauna parlors, massage
parlors, karaoke bars, night clubs, day clubs, super clubs, discotheques, cabarets,
dance halls, motels and inns. This is not warranted under the accepted definitions of
these terms. The enumerated establishments are lawful pursuits which are not per
se offensive to the moral welfare of the community.
[65]

That these are used as arenas to consummate illicit sexual affairs and as venues to
further the illegal prostitution is of no moment. We lay stress on the acrid truth that
sexual immorality, being a human frailty, may take place in the most innocent of places
that it may even take place in the substitute establishments enumerated under Section
3 of the Ordinance. If the flawed logic of the Ordinance were to be followed, in the
remote instance that an immoral sexual act transpires in a church cloister or a court
chamber, we would behold the spectacle of the City of Manila ordering the closure of
the church or court concerned. Every house, building, park, curb, street or even
vehicles for that matter will not be exempt from the prohibition. Simply because there
are no pure places where there are impure men. Indeed, even the Scripture and the
Tradition of Christians churches continually recall the presence and universality of sin in
mans history.
[66]

The problem, it needs to be pointed out, is not the establishment, which by its
nature cannot be said to be injurious to the health or comfort of the community and
which in itself is amoral, but the deplorable human activity that may occur within its

premises. While a motel may be used as a venue for immoral sexual activity, it cannot
for that reason alone be punished. It cannot be classified as a house of ill-repute or as a
nuisance per se on a mere likelihood or a naked assumption. If that were so and if that
were allowed, then the Ermita-Malate area would not only be purged of its supposed
social ills, it would be extinguished of its soul as well as every human activity,
reprehensible or not, in its every nook and cranny would be laid bare to the estimation
of the authorities.
The Ordinance seeks to legislate morality but fails to address the core issues of
morality. Try as the Ordinance may to shape morality, it should not foster the illusion that
it can make a moral man out of it because immorality is not a thing, a building or
establishment; it is in the hearts of men. The City Council instead should regulate
human conduct that occurs inside the establishments, but not to the detriment of liberty
and privacy which are covenants, premiums and blessings of democracy.
While petitioners earnestness at curbing clearly objectionable social ills is
commendable, they unwittingly punish even the proprietors and operators of
wholesome, innocent establishments. In the instant case, there is a clear invasion of
personal or property rights, personal in the case of those individuals desirous of owning,
operating and patronizing those motels and property in terms of the investments made
and the salaries to be paid to those therein employed. If the City of Manila so desires to
put an end to prostitution, fornication and other social ills, it can instead impose
reasonable regulations such as daily inspections of the establishments for any violation
of the conditions of their licenses or permits; it may exercise its authority to suspend or
revoke their licenses for these violations; and it may even impose increased license
fees. In other words, there are other means to reasonably accomplish the desired end.
[67]

Means employed are

constitutionally infirm
The Ordinance disallows the operation of sauna parlors, massage parlors, karaoke
bars, beerhouses, night clubs, day clubs, super clubs, discotheques, cabarets, dance
halls, motels and inns in the Ermita-Malate area. In Section 3 thereof, owners and/or
operators of the enumerated establishments are given three (3) months from the date of
approval of the Ordinancewithin which to wind up business operations or to transfer to
any place outside the Ermita-Malate area or convert said businesses to other kinds of
business allowable within the area. Further, it states in Section 4 that in cases of
subsequent violations of the provisions of the Ordinance, the premises of the erring
establishment shall be closed and padlocked permanently.
It is readily apparent that the means employed by the Ordinance for the
achievement of its purposes, the governmental interference itself, infringes on the
constitutional guarantees of a persons fundamental right to liberty and property.
Liberty as guaranteed by the Constitution was defined by Justice Malcolm to include
the right to exist and the right to be free from arbitrary restraint or servitude. The term
cannot be dwarfed into mere freedom from physical restraint of the person of the citizen,
but is deemed to embrace the right of man to enjoy the facilities with which he has been

endowed by his Creator, subject only to such restraint as are necessary for the common
welfare. In accordance with this case, the rights of the citizen to be free to use his
faculties in all lawful ways; to live and work where he will; to earn his livelihood by any
lawful calling; and to pursue any avocation are all deemed embraced in the concept of
liberty.
[68]

[69]

The U.S. Supreme Court in the case of Roth v. Board of Regents, sought to clarify
the meaning of liberty. It said:
[70]

While the Court has not attempted to define with exactness the liberty. . . guaranteed
[by the Fifth and Fourteenth Amendments], the term denotes not merely freedom from
bodily restraint but also the right of the individual to contract, to engage in any of the
common occupations of life, to acquire useful knowledge, to marry, establish a home
and bring up children, to worship God according to the dictates of his own conscience,
and generally to enjoy those privileges long recognizedas essential to the orderly
pursuit of happiness by free men. In a Constitution for a free people, there can be no
doubt that the meaning of liberty must be broad indeed.
In another case, it also confirmed that liberty protected by the due process clause
includes personal decisions relating to marriage, procreation, contraception, family
relationships, child rearing, and education. In explaining the respect the Constitution
demands for the autonomy of the person in making these choices, the U.S. Supreme
Court explained:

These matters, involving the most intimate and personal choices a person may make
in a lifetime, choices central to personal dignity and autonomy, are central to the
liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to
define ones own concept of existence, of meaning, of universe, and of the mystery of
human life. Beliefs about these matters could not define the attributes of personhood
where they formed under compulsion of the State.
[71]

Persons desirous to own, operate and patronize the enumerated establishments

under Section 1 of the Ordinance may seek autonomy for these purposes.
Motel patrons who are single and unmarried may invoke this right to autonomy to
consummate their bonds in intimate sexual conduct within the motels premises be it
stressed that their consensual sexual behavior does not contravene any fundamental
state policy as contained in the Constitution. Adults have a right to choose to forge
such relationships with others in the confines of their own private lives and still retain
their dignity as free persons. The liberty protected by the Constitution allows persons
the right to make this choice. Their right to liberty under the due process clause gives
them the full right to engage in their conduct without intervention of the government, as
long as they do not run afoul of the law. Liberty should be the rule and restraint the
exception.
[72]

[73]

Liberty in the constitutional sense not only means freedom from unlawful
government restraint; it must include privacy as well, if it is to be a repository of
freedom. The right to be let alone is the beginning of all freedom it is the most
comprehensive of rights and the right most valued by civilized men.
[74]

The concept of liberty compels respect for the individual whose claim to privacy and
interference demands respect. As the case of Morfe v. Mutuc, borrowing the words of
Laski, so very aptly stated:
[75]

Man is one among many, obstinately refusing reduction to unity. His separateness, his
isolation, are indefeasible; indeed, they are so fundamental that they are the basis on
which his civic obligations are built. He cannot abandon the consequences of his
isolation, which are, broadly speaking, that his experience is private, and the will built
out of that experience personal to himself. If he surrenders his will to others, he
surrenders himself. If his will is set by the will of others, he ceases to be a master of
himself. I cannot believe that a man no longer a master of himself is in any real sense
free.
Indeed, the right to privacy as a constitutional right was recognized in Morfe, the
invasion of which should be justified by a compelling state interest. Morfe accorded
recognition to the right to privacy independently of its identification with liberty; in itself it
is fully deserving of constitutional protection. Governmental powers should stop short of
certain intrusions into the personal life of the citizen.
[76]

There is a great temptation to have an extended discussion on these civil liberties

but the Court chooses to exercise restraint and restrict itself to the issues presented
when it should. The previous pronouncements of the Court are not to be interpreted as
a license for adults to engage in criminal conduct. The reprehensibility of such conduct
is not diminished. The Court only reaffirms and guarantees their right to make this
choice. Should they be prosecuted for their illegal conduct, they should suffer the
consequences of the choice they have made. That, ultimately, is their choice.
Modality employed is
unlawful taking
In addition, the Ordinance is unreasonable and oppressive as it substantially divests
the respondent of the beneficial use of its property. The Ordinance in Section 1 thereof
forbids the running of the enumerated businesses in the Ermita-Malate area and in
Section 3 instructs its owners/operators to wind up business operations or to transfer
outside the area or convert said businesses into allowed businesses. An ordinance
which permanently restricts the use of property that it can not be used for any
reasonable purpose goes beyond regulation and must be recognized as a taking of the
property without just compensation. It is intrusive and violative of the private property
rights of individuals.
[77]

[78]

The Constitution expressly provides in Article III, Section 9, that private property
shall not be taken for public use without just compensation. The provision is the most

important protection of property rights in the Constitution. This is a restriction on the

general power of the government to take property. The constitutional provision is about
ensuring that the government does not confiscate the property of some to give it to
others. In part too, it is about loss spreading. If the government takes away a persons
property to benefit society, then society should pay. The principal purpose of the
guarantee is to bar the Government from forcing some people alone to bear public
burdens which, in all fairness and justice, should be borne by the public as a whole.
[79]

There are two different types of taking that can be identified. A possessory taking
occurs when the government confiscates or physically occupies property. A regulatory
taking occurs when the governments regulation leaves no reasonable economically
viable use of the property.
[80]

In the landmark case of Pennsylvania Coal v. Mahon, it was held that a taking also
could be found if government regulation of the use of property went too far. When
regulation reaches a certain magnitude, in most if not in all cases there must be an
exercise of eminent domain and compensation to support the act. While property may
be regulated to a certain extent, if regulation goes too far it will be recognized as a
taking.
[81]

[82]

No formula or rule can be devised to answer the questions of what is too far and
when regulation becomes a taking. In Mahon, Justice Holmes recognized that it was a
question of degree and therefore cannot be disposed of by general propositions. On
many other occasions as well, the U.S. Supreme Court has said that the issue of when
regulation constitutes a taking is a matter of considering the facts in each case. The
Court asks whether justice and fairness require that the economic loss caused by public
action must be compensated by the government and thus borne by the public as a
whole, or whether the loss should remain concentrated on those few persons subject to
the public action.
[83]

What is crucial in judicial consideration of regulatory takings is that government

regulation is a taking if it leaves no reasonable economically viable use of property in a
manner that interferes with reasonable expectations for use. A regulation that
permanently denies all economically beneficial or productive use of land is, from the
owners point of view, equivalent to a taking unless principles of nuisance or property
law that existed when the owner acquired the land make the use prohibitable. When
the owner of real property has been called upon to sacrifice all economically beneficial
uses in the name of the common good, that is, to leave his property economically idle,
he has suffered a taking.
[84]

[85]

[86]

A regulation which denies all economically beneficial or productive use of land will
require compensation under the takings clause. Where a regulation places limitations
on land that fall short of eliminating all economically beneficial use, a taking nonetheless
may have occurred, depending on a complex of factors including the regulations
economic effect on the landowner, the extent to which the regulation interferes with
reasonable investment-backed expectations and the character of government action.
These inquiries are informed by the purpose of the takings clause which is to prevent
the government from forcing some people alone to bear public burdens which, in all
fairness and justice, should be borne by the public as a whole.
[87]

A restriction on use of property may also constitute a taking if not reasonably

necessary to the effectuation of a substantial public purpose or if it has an unduly harsh
impact on the distinct investment-backed expectations of the owner.
[88]

The Ordinance gives the owners and operators of the prohibited establishments
three (3) months from its approval within which to wind up business operations or to
transfer to any place outside of the Ermita-Malate area or convert said businesses to
other kinds of business allowable within the area. The directive to wind up business
operations amounts to a closure of the establishment, a permanent deprivation of
property, and is practically confiscatory. Unless the owner converts his establishment to
accommodate an allowed business, the structure which housed the previous business
will be left empty and gathering dust. Suppose he transfers it to another area, he will
likewise leave the entire establishment idle. Consideration must be given to the
substantial amount of money invested to build the edifices which the owner reasonably
expects to be returned within a period of time. It is apparent that the Ordinance leaves
no reasonable economically viable use of property in a manner that interferes with
reasonable expectations for use.
The second and third options to transfer to any place outside of the Ermita-Malate
area or to convert into allowed businesses are confiscatory as well. The penalty of
permanent closure in cases of subsequent violations found in Section 4 of
the Ordinance is also equivalent to a taking of private property.
The second option instructs the owners to abandon their property and build another
one outside the Ermita-Malate area. In every sense, it qualifies as a taking without just
compensation with an additional burden imposed on the owner to build another
establishment solely from his coffers. The proffered solution does not put an end to the
problem, it merely relocates it. Not only is this impractical, it is unreasonable, onerous
and oppressive. The conversion into allowed enterprises is just as ridiculous. How may
the respondent convert a motel into a restaurant or a coffee shop, art gallery or music
lounge without essentially destroying its property? This is a taking of private property
without due process of law, nay, even without compensation.
The penalty of closure likewise constitutes unlawful taking that should be
compensated by the government. The burden on the owner to convert or transfer his
business, otherwise it will be closed permanently after a subsequent violation should be
borne by the public as this end benefits them as a whole.
Petitioners cannot take refuge in classifying the measure as a zoning ordinance. A
zoning ordinance, although a valid exercise of police power, which limits a wholesome
property to a use which can not reasonably be made of it constitutes the taking of such
property without just compensation. Private property which is not noxious nor intended
for noxious purposes may not, by zoning, be destroyed without compensation. Such
principle finds no support in the principles of justice as we know them. The police
powers of local government units which have always received broad and liberal
interpretation cannot be stretched to cover this particular taking.
Distinction should be made between destruction from necessity and eminent
domain. It needs restating that the property taken in the exercise of police power is

destroyed because it is noxious or intended for a noxious purpose while the property
taken under the power of eminent domain is intended for a public use or purpose and is
therefore wholesome. If it be of public benefit that a wholesome property remain
unused or relegated to a particular purpose, then certainly the public should bear the
cost of reasonable compensation for the condemnation of private property for public
use.
[89]

[90]

Further, the Ordinance fails to set up any standard to guide or limit the petitioners
actions. It in no way controls or guides the discretion vested in them. It provides no
definition of the establishments covered by it and it fails to set forth the conditions when
the establishments come within its ambit of prohibition. The Ordinance confers upon the
mayor arbitrary and unrestricted power to close down establishments. Ordinances such
as this, which make possible abuses in its execution, depending upon no conditions or
qualifications whatsoever other than the unregulated arbitrary will of the city authorities
as the touchstone by which its validity is to be tested, are unreasonable and invalid.
The Ordinance should have established a rule by which its impartial enforcement could
be secured.
[91]

Ordinances placing restrictions upon the lawful use of property must, in order to be
valid and constitutional, specify the rules and conditions to be observed and conduct to
avoid; and must not admit of the exercise, or of an opportunity for the exercise, of
unbridled discretion by the law enforcers in carrying out its provisions.
[92]

Thus, in Coates v. City of Cincinnati, as cited in People v. Nazario,

the U.S.
Supreme Court struck down an ordinance that had made it illegal for three or more
persons to assemble on any sidewalk and there conduct themselves in a manner
annoying to persons passing by. The ordinance was nullified as it imposed no standard
at all because one may never know in advance what annoys some people but does
not annoy others.
[93]

[94]

Similarly, the Ordinance does not specify the standards to ascertain which
establishments tend to disturb the community, annoy the inhabitants, and adversely
affect the social and moral welfare of the community. The cited case supports the
nullification of the Ordinance for lack of comprehensible standards to guide the law
enforcers in carrying out its provisions.
Petitioners cannot therefore order the closure of the enumerated establishments
without infringing the due process clause. These lawful establishments may be
regulated, but not prevented from carrying on their business. This is a sweeping
exercise of police power that is a result of a lack of imagination on the part of the City
Council and which amounts to an interference into personal and private rights which the
Court will not countenance. In this regard, we take a resolute stand to uphold the
constitutional guarantee of the right to liberty and property.
Worthy of note is an example derived from the U.S. of a reasonable regulation
which is a far cry from the ill-considered Ordinance enacted by the City Council.
In FW/PBS, INC. v. Dallas, the city of Dallas adopted a comprehensive ordinance
regulating sexually oriented businesses, which are defined to include adult arcades,
bookstores, video stores, cabarets, motels, and theaters as well as escort agencies,
[95]

nude model studio and sexual encounter centers. Among other things, the ordinance
required that such businesses be licensed. A group of motel owners were among the
three groups of businesses that filed separate suits challenging the ordinance. The
motel owners asserted that the city violated the due process clause by failing to produce
adequate support for its supposition that renting room for fewer than ten (10) hours
resulted in increased crime and other secondary effects. They likewise argued than the
ten (10)-hour limitation on the rental of motel rooms placed an unconstitutional burden
on the right to freedom of association. Anent the first contention, the U.S. Supreme
Court held that the reasonableness of the legislative judgment combined with a study
which the city considered, was adequate to support the citys determination that motels
permitting room rentals for fewer than ten (10 ) hours should be included within the
licensing scheme. As regards the second point, the Court held that limiting motel room
rentals to ten (10) hours will have no discernible effect on personal bonds as those
bonds that are formed from the use of a motel room for fewer than ten (10) hours are
not those that have played a critical role in the culture and traditions of the nation by
cultivating and transmitting shared ideals and beliefs.
The ordinance challenged in the above-cited case merely regulated the targeted
businesses. It imposed reasonable restrictions; hence, its validity was upheld.
The case of Ermita Malate Hotel and Motel Operators Association, Inc. v. City
Mayor of Manila, it needs pointing out, is also different from this case in that what was
involved therein was a measure which regulated the mode in which motels may conduct
business in order to put an end to practices which could encourage vice and immorality.
Necessarily, there was no valid objection on due process or equal protection grounds as
the ordinance did not prohibit motels. The Ordinance in this case however is not a
regulatory measure but is an exercise of an assumed power to prohibit.
[96]

[97]

The foregoing premises show that the Ordinance is an unwarranted and unlawful
curtailment of property and personal rights of citizens. For being unreasonable and an
undue restraint of trade, it cannot, even under the guise of exercising police power, be
upheld as valid.
B. The Ordinance violates Equal
Protection Clause
Equal protection requires that all persons or things similarly situated should be
treated alike, both as to rights conferred and responsibilities imposed. Similar subjects,
in other words, should not be treated differently, so as to give undue favor to some and
unjustly discriminate against others. The guarantee means that no person or class of
persons shall be denied the same protection of laws which is enjoyed by other persons
or other classes in like circumstances. The equal protection of the laws is a pledge of
the protection of equal laws. It limits governmental discrimination. The equal
protection clause extends to artificial persons but only insofar as their property is
concerned.
[98]

[99]

[100]

[101]

The Court has explained the scope of the equal protection clause in this wise:

 What does it signify? To quote from J.M. Tuason & Co. v. Land Tenure
Administration: The ideal situation is for the laws benefits to be available to all, that
none be placed outside the sphere of its coverage. Only thus could chance and favor
be excluded and the affairs of men governed by that serene and impartial uniformity,
which is of the very essence of the idea of law. There is recognition, however, in the
opinion that what in fact exists cannot approximate the ideal. Nor is the law
susceptible to the reproach that it does not take into account the realities of the
situation. The constitutional guarantee then is not to be given a meaning that
disregards what is, what does in fact exist. To assure that the general welfare be
promoted, which is the end of law, a regulatory measure may cut into the rights to
liberty and property. Those adversely affected may under such circumstances invoke
the equal protection clause only if they can show that the governmental act assailed,
far from being inspired by the attainment of the common weal was prompted by the
spirit of hostility, or at the very least, discrimination that finds no support in reason.
Classification is thus not ruled out, it being sufficient to quote from the Tuason
decision anew that the laws operate equally and uniformly on all persons under
similar circumstances or that all persons must be treated in the same manner, the
conditions not being different, both in the privileges conferred and the liabilities
imposed. Favoritism and undue preference cannot be allowed. For the principle is that
equal protection and security shall be given to every person under circumstances
which, if not identical, are analogous. If law be looked upon in terms of burden or
charges, those that fall within a class should be treated in the same fashion, whatever
restrictions cast on some in the group equally binding on the rest.
[102]

Legislative bodies are allowed to classify the subjects of legislation. If the

classification is reasonable, the law may operate only on some and not all of the people
without violating the equal protection clause. The classification must, as an
indispensable requisite, not be arbitrary. To be valid, it must conform to the following
requirements:
[103]

1) It must be based on substantial distinctions.

2) It must be germane to the purposes of the law.
3) It must not be limited to existing conditions only.
4) It must apply equally to all members of the class.[104]

In the Courts view, there are no substantial distinctions between motels, inns,
pension houses, hotels, lodging houses or other similar establishments. By definition, all
are commercial establishments providing lodging and usually meals and other services
for the public. No reason exists for prohibiting motels and inns but not pension houses,
hotels, lodging houses or other similar establishments. The classification in the instant
case is invalid as similar subjects are not similarly treated, both as to rights conferred
and obligations imposed. It is arbitrary as it does not rest on substantial distinctions
bearing a just and fair relation to the purpose of the Ordinance.

The Court likewise cannot see the logic for prohibiting the business and operation of
motels in the Ermita-Malate area but not outside of this area. A noxious establishment
does not become any less noxious if located outside the area.
The standard where women are used as tools for entertainment is also
discriminatory as prostitution one of the hinted ills the Ordinance aims to banish is
not a profession exclusive to women. Both men and women have an equal propensity to
engage in prostitution. It is not any less grave a sin when men engage in it. And why
would the assumption that there is an ongoing immoral activity apply only when women
are employed and be inapposite when men are in harness? This discrimination based
on gender violates equal protection as it is not substantially related to important
government objectives. Thus, the discrimination is invalid.
[105]

Failing the test of constitutionality, the Ordinance likewise failed to pass the test of
consistency with prevailing laws.
C. The Ordinance is repugnant
to general laws; it is ultra vires
The Ordinance is in contravention of the Code as the latter merely empowers local
government units to regulate, and not prohibit, the establishments enumerated in
Section 1 thereof.
The power of the City Council to regulate by ordinances the establishment,
operation, and maintenance of motels, hotels and other similar establishments is found
in Section 458 (a) 4 (iv), which provides that:

Section 458. Powers, Duties, Functions and Compensation. (a) The sangguniang
panlungsod, as the legislative body of the city, shall enact ordinances, approve
resolutions and appropriate funds for the general welfare of the city and its inhabitants
pursuant to Section 16 of this Code and in the proper exercise of the corporate powers
of the city as provided for under Section 22 of this Code, and shall:
. . .
(4) Regulate activities relative to the use of land, buildings and structures within the
city in order to promote the general welfare and for said purpose shall:
. . .
(iv) 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 . . . .
While its power to regulate the establishment, operation and maintenance of any
entertainment or amusement facilities, and to prohibit certain forms of amusement or

entertainment is provided under Section 458 (a) 4 (vii) of the Code, which reads as
follows:

Section 458. Powers, Duties, Functions and Compensation. (a) The sangguniang
panlungsod, as the legislative body of the city, shall enact ordinances, approve
resolutions and appropriate funds for the general welfare of the city and its inhabitants
pursuant to Section 16 of this Code and in the proper exercise of the corporate powers
of the city as provided for under Section 22 of this Code, and shall:
. . .
(4) Regulate activities relative to the use of land, buildings and structures within the
city in order to promote the general welfare and for said purpose shall:
. . .
(vii) Regulate the establishment, operation, and maintenance of any entertainment or
amusement facilities, including theatrical performances, circuses, billiard pools,
public dancing schools, public dance halls, sauna baths, massage parlors, and other
places for entertainment or amusement; regulate such other events or activities for
amusement or entertainment, particularly those which tend to disturb the community
or annoy the inhabitants, or require the suspension or suppression of the same; or,
prohibit certain forms of amusement or entertainment in order to protect the social and
moral welfare of the community.
Clearly, with respect to cafes, restaurants, beerhouses, hotels, motels, inns,
pension houses, lodging houses, and other similar establishments, the only power of
the City Council to legislate relative thereto is to regulate them to promote the general
welfare. The Code still withholds from cities the power to suppress and prohibit
altogether the establishment, operation and maintenance of such establishments. It is
well to recall the rulings of the Court in Kwong Sing v. City of Manila that:
[106]

The word regulate, as used in subsection (l), section 2444 of the Administrative
Code, means and includes the power to control, to govern, and to restrain; but
regulate should not be construed as synonymous with suppress or prohibit.
Consequently, under the power to regulate laundries, the municipal authorities could
make proper police regulations as to the mode in which the employment or business
shall be exercised.
[107]

And in People v. Esguerra, wherein the Court nullified an ordinance of the

Municipality of Tacloban which prohibited the selling, giving and dispensing of liquor
ratiocinating that the municipality is empowered only to regulate the same and not
prohibit. The Court therein declared that:
[108]

(A)s a general rule when a municipal corporation is specifically given authority or

power to regulate or to license and regulate the liquor traffic, power to prohibit is
impliedly withheld.
[109]

These doctrines still hold contrary to petitioners assertion

by the Code vesting upon City Councils prohibitory powers.

[110]

that they were modified

Similarly, the City Council exercises regulatory powers over public dancing schools,
public dance halls, sauna baths, massage parlors, and other places for entertainment or
amusement as found in the first clause of Section 458 (a) 4 (vii). Its powers to regulate,
suppress and suspend such other events or activities for amusement or entertainment,
particularly those which tend to disturb the community or annoy the inhabitants and to
prohibit certain forms of amusement or entertainment in order to protect the social and
moral welfare of the community are stated in the second and third clauses, respectively
of the same Section. The several powers of the City Council as provided in Section 458
(a) 4 (vii) of the Code, it is pertinent to emphasize, are separated by semi-colons (;), the
use of which indicates that the clauses in which these powers are set forth are
independent of each other albeit closely related to justify being put together in a single
enumeration or paragraph. These powers, therefore, should not be confused,
commingled or consolidated as to create a conglomerated and unified power of
regulation, suppression and prohibition.
[111]

[112]

The Congress unequivocably specified the establishments and forms of amusement

or entertainment subject to regulation among which are beerhouses, hotels, motels,
inns, pension houses, lodging houses, and other similar establishments (Section 458 (a)
4 (iv)), public dancing schools, public dance halls, sauna baths, massage parlors, and
other places for entertainment or amusement (Section 458 (a) 4 (vii)). This enumeration
therefore cannot be included as among other events or activities for amusement or
entertainment, particularly those which tend to disturb the community or annoy the
inhabitants or certain forms of amusement or entertainment which the City Council
may suspend, suppress or prohibit.
The rule is that the City Council has only such powers as are expressly granted to it
and those which are necessarily implied or incidental to the exercise thereof. By reason
of its limited powers and the nature thereof, said powers are to be construed strictissimi
juris and any doubt or ambiguity arising out of the terms used in granting said powers
must be construed against the City Council. Moreover, it is a general rule in statutory
construction that the express mention of one person, thing, or consequence is
tantamount to an express exclusion of all others. Expressio unius est exclusio alterium.
This maxim is based upon the rules of logic and the natural workings of human mind. It
is particularly applicable in the construction of such statutes as create new rights or
remedies, impose penalties or punishments, or otherwise come under the rule of strict
construction.
[113]

[114]

The argument that the City Council is empowered to enact the Ordinance by virtue
of the general welfare clause of the Code and of Art. 3, Sec. 18 (kk) of the Revised
Charter of Manila is likewise without merit. On the first point, the ruling of the Court
in People v. Esguerra, is instructive. It held that:
[115]

The powers conferred upon a municipal council in the general welfare clause, or
section 2238 of the Revised Administrative Code, refers to matters not covered by the
other provisions of the same Code, and therefore it can not be applied to intoxicating
liquors, for the power to regulate the selling, giving away and dispensing thereof is
granted specifically by section 2242 (g) to municipal councils. To hold that, under the
general power granted by section 2238, a municipal council may enact the ordinance
in question, notwithstanding the provision of section 2242 (g), would be to make the
latter superfluous and nugatory, because the power to prohibit, includes the power to
regulate, the selling, giving away and dispensing of intoxicating liquors.
On the second point, it suffices to say that the Code being a later expression of the
legislative will must necessarily prevail and override the earlier law, the Revised Charter
of Manila.Legis posteriores priores contrarias abrogant, or later statute repeals prior
ones which are repugnant thereto. As between two laws on the same subject matter,
which are irreconcilably inconsistent, that which is passed later prevails, since it is the
latest expression of legislative will. If there is an inconsistency or repugnance between
two statutes, both relating to the same subject matter, which cannot be removed by any
fair and reasonable method of interpretation, it is the latest expression of the legislative
will which must prevail and override the earlier.
[116]

[117]

Implied repeals are those which take place when a subsequently enacted law
contains provisions contrary to those of an existing law but no provisions expressly
repealing them. Such repeals have been divided into two general classes: those which
occur where an act is so inconsistent or irreconcilable with an existing prior act that only
one of the two can remain in force and those which occur when an act covers the whole
subject of an earlier act and is intended to be a substitute therefor. The validity of such a
repeal is sustained on the ground that the latest expression of the legislative will should
prevail.
[118]

In addition, Section 534(f) of the Code states that All general and special laws,
acts, city charters, decrees, executive orders, proclamations and administrative
regulations, or part or parts thereof which are inconsistent with any of the provisions of
this Code are hereby repealed or modified accordingly. Thus, submitting to petitioners
interpretation that the Revised Charter of Manila empowers the City Council to prohibit
motels, that portion of the Charter stating such must be considered repealed by the
Code as it is at variance with the latters provisions granting the City Council mere
regulatory powers.
It is well to point out that petitioners also cannot seek cover under the general
welfare clause authorizing the abatement of nuisances without judicial proceedings.
That tenet applies to a nuisance per se, or one which affects the immediate safety of
persons and property and may be summarily abated under the undefined law of
necessity. It can not be said that motels are injurious to the rights of property, health or
comfort of the community. It is a legitimate business. If it be a nuisance per accidens it
may be so proven in a hearing conducted for that purpose. A motel is not per se a
nuisance warranting its summary abatement without judicial intervention.
[119]

Notably, the City Council was conferred powers to prevent and prohibit certain
activities and establishments in another section of the Code which is reproduced as
follows:

Section 458. Powers, Duties, Functions and Compensation. (a) The sangguniang
panlungsod, as the legislative body of the city, shall enact ordinances, approve
resolutions and appropriate funds for the general welfare of the city and its inhabitants
pursuant to Section 16 of this Code and in the proper exercise of the corporate powers
of the city as provided for under Section 22 of this Code, and shall:
(1) Approve ordinances and pass resolutions necessary for an efficient and effective
city government, and in this connection, shall:
. . .
(v) Enact ordinances intended to prevent, suppress and impose appropriate penalties
for habitual drunkenness in public places, vagrancy, mendicancy, prostitution,
establishment and maintenance of
houses of ill repute, gambling and other
prohibited games of chance, fraudulent devices and ways to obtain money or
property, drug addiction, maintenance of drug dens, drug pushing, juvenile
delinquency, the printing, distribution or exhibition of obscene or pornographic
materials or publications, and such other activities inimical to the welfare and morals
of the inhabitants of the city;
. . .
If it were the intention of Congress to confer upon the City Council the power to
prohibit the establishments enumerated in Section 1 of the Ordinance, it would have so
declared in uncertain terms by adding them to the list of the matters it may prohibit
under the above-quoted Section. The Ordinance now vainly attempts to lump these
establishments with houses of ill-repute and expand the City Councils powers in the
second and third clauses of Section 458 (a) 4 (vii) of the Code in an effort to overreach
its prohibitory powers. It is evident that these establishments may only be regulated in
their establishment, operation and maintenance.
It is important to distinguish the punishable activities from the establishments
themselves. That these establishments are recognized legitimate enterprises can be
gleaned from another Section of the Code. Section 131 under the Title on Local
Government Taxation expressly mentioned proprietors or operators of massage clinics,
sauna, Turkish and Swedish baths, hotels, motels and lodging houses as among the
contractors defined in paragraph (h) thereof. The same Section also defined
amusement as a pleasurable diversion and entertainment, synonymous to
relaxation, avocation, pastime or fun; and amusement places to include theaters,
cinemas, concert halls, circuses and other places of amusement where one seeks
admission to entertain oneself by seeing or viewing the show or performances. Thus, it

can be inferred that the Code considers these establishments as legitimate enterprises
and activities. It is well to recall the maxim reddendo singula singulis which means that
words in different parts of a statute must be referred to their appropriate connection,
giving to each in its place, its proper force and effect, and, if possible, rendering none of
them useless or superfluous, even if strict grammatical construction demands
otherwise. Likewise, where words under consideration appear in different sections or
are widely dispersed throughout an act the same principle applies.
[120]

Not only does the Ordinance contravene the Code, it likewise runs counter to the
provisions of P.D. 499. As correctly argued by MTDC, the statute had already converted
the residential Ermita-Malate area into a commercial area. The decree allowed the
establishment and operation of all kinds of commercial establishments except
warehouse or open storage depot, dump or yard, motor repair shop, gasoline service
station, light industry with any machinery or funeral establishment. The rule is that for an
ordinance to be valid and to have force and effect, it must not only be within the powers
of the council to enact but the same must not be in conflict with or repugnant to the
general law. As succinctly illustrated in Solicitor General v. Metropolitan Manila
Authority:
[121]

[122]

The requirement that the enactment must not violate existing law explains itself. Local
political subdivisions are able to legislate only by virtue of a valid delegation of
legislative power from the national legislature (except only that the power to create
their own sources of revenue and to levy taxes is conferred by the Constitution itself).
They are mere agents vested with what is called the power of subordinate legislation.
As delegates of the Congress, the local government units cannot contravene but must
obey at all times the will of their principal. In the case before us, the enactment in
question, which are merely local in origin cannot prevail against the decree, which has
the force and effect of a statute.
[123]

Petitioners contend that the Ordinance enjoys the presumption of validity. While this
may be the rule, it has already been held that although the presumption is always in
favor of the validity or reasonableness of the ordinance, such presumption must
nevertheless be set aside when the invalidity or unreasonableness appears on the face
of the ordinance itself or is established by proper evidence. The exercise of police
power by the local government is valid unless it contravenes the fundamental law of the
land, or an act of the legislature, or unless it is against public policy or is unreasonable,
oppressive, partial, discriminating or in derogation of a common right.
[124]

Conclusion
All considered, the Ordinance invades fundamental personal and property rights
and impairs personal privileges. It is constitutionally infirm. The Ordinance contravenes
statutes; it is discriminatory and unreasonable in its operation; it is not sufficiently
detailed and explicit that abuses may attend the enforcement of its sanctions. And not to
be forgotten, the City Council under the Code had no power to enact the Ordinance and
is therefore ultra vires, null and void.

Concededly, the challenged Ordinance was enacted with the best of motives and
shares the concern of the public for the cleansing of the Ermita-Malate area of its social
sins. Police power legislation of such character deserves the full endorsement of the
judiciary we reiterate our support for it. But inspite of its virtuous aims, the enactment
of the Ordinance has no statutory or constitutional authority to stand on. Local
legislative bodies, in this case, the City Council, cannot prohibit the operation of the
enumerated establishments under Section 1 thereof or order their transfer or conversion
without infringing the constitutional guarantees of due process and equal protection of
laws not even under the guise of police power.
WHEREFORE, the Petition is hereby DENIED and the decision of the Regional Trial
Court declaring the Ordinance void is AFFIRMED. Costs against petitioners.
SO ORDERED.
Davide, Jr., C.J., Puno, Quisumbing, Sandoval-Gutierrez, Carpio, Austria-Martinez,
Corona, Carpio-Morales, Callejo, Sr., Azcuna, Chico-Nazario and Garcia, JJ., concur
Panganiban, J., in the result.
Ynares- Santiago, J., concur in the result only.

[1]

Dated 11 January 1995; Rollo, pp. 6-73 with annexes.

[2]

Id. at 64-72.

[3]

The lower court declared the Ordinance to be null and void.

[4]

In the case of Cotton Club Corporation, etc. v. Hon. Alfredo S. Lim, etc, et al. before RTC, Branch 55 of
Manila, docketed as Civil Case No. 93-66551, Judge Hermogenes R. Liwag declared the
Ordinance void and unconstitutional. The defendants elevated the case to the Court of Appeals
which denied their petition on procedural grounds in its Decision dated 21 May 2003. It appears
that defendants Hon. Alfredo S. Lim and the City Council of Manila did not elevate the case
before the Court. Entry of Judgment of the CA Decision was made on 22 April 2003.

[5]

Rollo, p. 37.

[6]

Id. at. 75; It now calls itself Hotel Victoria.

[7]

Id. at 35-47.

[8]

Id. at 46.

[9]

The principal authors of the Ordinance are: Hons. Bienvenido M. Abante, Jr.; Humberto B. Basco;
Nestor C. Ponce, Jr.; Ernesto A. Nieva; Francisco G. Varona, Jr.; Jhosep Y. Lopez; Ma. Paz E.
Herrera; Gerino A. Tolentino, Jr; Ma. Lourdes M. Isip; Flaviano F. Concepcion, Jr.; Ernesto V.P.
Maceda, Jr.; Victoriano A. Melendez; Ma. Corazon R. Caballes; Bernardito C. Ang; Roberto C.
Ocampo; Rogelio B. dela Paz; Romeo G. Rivera; Alexander S. Ricafort; Avelino S. Cailian;
Bernardo D. Ragasa; Joey D. Hizon; Leonardo L. Angat; and Jocelyn B. Dawis.

[10]

Rollo, p. 8.

[11]

RTC Records, pp. 10-11.

[12]

Paragraph (a) 4 (iv), Section 458, Chapter 3 of the Code reads, thus:

Section 458. Powers, Duties, Functions and Compensation. (a) The sangguniang panlungsod, as
the legislative body of the city, shall enact ordinances, approve resolutions and appropriate funds
for the general welfare of the city and its inhabitants pursuant to Section 16 of this Code and in
the proper exercise of the corporate powers of the city as provided for under Section 22 of this
Code, and shall:
. . .
(4) Regulate activities relative to the use of land, buildings and structures within the city in order to
promote the general welfare and for said purpose shall:
. . ..
(iv) 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; . . .
[13]

Presidential Decree No. 499; Dated 28 June 1974; Declaring Portions of the Ermita-Malate Area as
Commercial Zones with Certain Restrictions. It reads in full:
WHEREAS, the government is committed to the promotion and development of tourism in the
country, particularly in the City of Manila which is the hub of commercial and cultural activities in
Manila Metropolitan Area;
WHEREAS, certain portions of the districts of Ermita and Malate known as the Tourist Belt are still
classified as Class A Residential Zones and Class B Residential Zones where hotels and other
business establishments such as curio stores, souvenir shops, handicraft display centers and the
like are not allowed under the existing zoning plan in the City of Manila;
WHEREAS, the presence of such establishments in the area would not only serve as an attraction
for tourists but are dollar earning enterprises as well, which tourist areas all over the world cannot
do without;
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the
powers vested in me under the Constitution as Commander-in-Chief of all the Armed Forces of
the Philippines and pursuant to Proclamation No. 1081, dated September 21, 1972, and General
Order No. 1, dated September 22, 1972, as amended, do hereby order and decree the
classification as a Commercial Zone of that portion of the Ermita-Malate area bounded by
Teodoro M. Kalaw, Sr. Street in the north; Taft Avenue in the east; Vito Cruz Street in the south
and Roxas Boulevard in the west. PROVIDED, HOWEVER, That no permit shall be granted for
the establishment of any new warehouse or open storage depot, dump or yard, motor repair
shop, gasoline service station, light industry with any machinery or funeral establishment in these
areas, and PROVIDED, FURTHER, That for purposes of realty tax assessment on properties
situated therein, lands and buildings used exclusively for residential purposes by the owners
themselves shall remain assessed as residential properties.
All laws, ordinances, orders, rules and regulations which are inconsistent with this Decree are
hereby repealed or modified accordingly.
This Decree shall take effect immediately.
Done in the City of Manila this 28th day of June in the year of Our Lord, nineteen hundred and
seventy-four.

G.R. No. 122846

January 20, 2009

WHITE LIGHT CORPORATION, TITANIUM CORPORATION and STA. MESA TOURIST &
DEVELOPMENT CORPORATION, Petitioners,
vs.
CITY OF MANILA, represented by DE CASTRO, MAYOR ALFREDO S. LIM, Respondent.

DECISION
Tinga, J.:
With another city ordinance of Manila also principally involving the tourist district as subject, the
Court is confronted anew with the incessant clash between government power and individual liberty
in tandem with the archetypal tension between law and morality.
In City of Manila v. Laguio, Jr.,1 the Court affirmed the nullification of a city ordinance barring the
operation of motels and inns, among other establishments, within the Ermita-Malate area. The
petition at bar assails a similarly-motivated city ordinance that prohibits those same establishments
from offering short-time admission, as well as pro-rated or "wash up" rates for such abbreviated
stays. Our earlier decision tested the city ordinance against our sacred constitutional rights to liberty,
due process and equal protection of law. The same parameters apply to the present petition.
This Petition2 under Rule 45 of the Revised Rules on Civil Procedure, which seeks the reversal of
the Decision3 in C.A.-G.R. S.P. No. 33316 of the Court of Appeals, challenges the validity of Manila
City Ordinance No. 7774 entitled, "An Ordinance Prohibiting Short-Time Admission, Short-Time
Admission Rates, and Wash-Up Rate Schemes in Hotels, Motels, Inns, Lodging Houses, Pension
Houses, and Similar Establishments in the City of Manila" (the Ordinance).
I.
The facts are as follows:
On December 3, 1992, City Mayor Alfredo S. Lim (Mayor Lim) signed into law the Ordinance. 4 The
Ordinance is reproduced in full, hereunder:
SECTION 1. Declaration of Policy. It is hereby the declared policy of the City Government to protect
the best interest, health and welfare, and the morality of its constituents in general and the youth in
particular.
SEC. 2. Title. This ordinance shall be known as "An Ordinance" prohibiting short time admission in
hotels, motels, lodging houses, pension houses and similar establishments in the City of Manila.
SEC. 3. Pursuant to the above policy, short-time admission and rate [sic], wash-up rate or other
similarly concocted terms, are hereby prohibited in hotels, motels, inns, lodging houses, pension
houses and similar establishments in the City of Manila.
SEC. 4. Definition of Term[s]. Short-time admission shall mean admittance and charging of room rate
for less than twelve (12) hours at any given time or the renting out of rooms more than twice a day or
any other term that may be concocted by owners or managers of said establishments but would
mean the same or would bear the same meaning.
SEC. 5. Penalty Clause. Any person or corporation who shall violate any provision of this ordinance
shall upon conviction thereof be punished by a fine of Five Thousand (P5,000.00) Pesos or
imprisonment for a period of not exceeding one (1) year or both such fine and imprisonment at the
discretion of the court; Provided, That in case of [a] juridical person, the president, the manager, or
the persons in charge of the operation thereof shall be liable: Provided, further, That in case of
subsequent conviction for the same offense, the business license of the guilty party shall
automatically be cancelled.

SEC. 6. Repealing Clause. Any or all provisions of City ordinances not consistent with or contrary to
this measure or any portion hereof are hereby deemed repealed.
SEC. 7. Effectivity. This ordinance shall take effect immediately upon approval.
Enacted by the city Council of Manila at its regular session today, November 10, 1992.
Approved by His Honor, the Mayor on December 3, 1992.
On December 15, 1992, the Malate Tourist and Development Corporation (MTDC) filed a complaint
for declaratory relief with prayer for a writ of preliminary injunction and/or temporary restraining order
( TRO)5 with the Regional Trial Court (RTC) of Manila, Branch 9 impleading as defendant, herein
respondent City of Manila (the City) represented by Mayor Lim.6 MTDC prayed that the Ordinance,
insofar as it includes motels and inns as among its prohibited establishments, be declared invalid
and unconstitutional. MTDC claimed that as owner and operator of the Victoria Court in Malate,
Manila it was authorized by Presidential Decree (P.D.) No. 259 to admit customers on a short time
basis as well as to charge customers wash up rates for stays of only three hours.
On December 21, 1992, petitioners White Light Corporation (WLC), Titanium Corporation (TC) and
Sta. Mesa Tourist and Development Corporation (STDC) filed a motion to intervene and to admit
attached complaint-in-intervention7 on the ground that the Ordinance directly affects their business
interests as operators of drive-in-hotels and motels in Manila.8 The three companies are components
of the Anito Group of Companies which owns and operates several hotels and motels in Metro
Manila.9
On December 23, 1992, the RTC granted the motion to intervene. 10 The RTC also notified the
Solicitor General of the proceedings pursuant to then Rule 64, Section 4 of the Rules of Court. On
the same date, MTDC moved to withdraw as plaintiff.11
On December 28, 1992, the RTC granted MTDC's motion to withdraw.12 The RTC issued a TRO on
January 14, 1993, directing the City to cease and desist from enforcing the Ordinance. 13 The City
filed an Answer dated January 22, 1993 alleging that the Ordinance is a legitimate exercise of police
power.14
On February 8, 1993, the RTC issued a writ of preliminary injunction ordering the city to desist from
the enforcement of the Ordinance.15 A month later, on March 8, 1993, the Solicitor General filed his
Comment arguing that the Ordinance is constitutional.
During the pre-trial conference, the WLC, TC and STDC agreed to submit the case for decision
without trial as the case involved a purely legal question. 16 On October 20, 1993, the RTC rendered a
decision declaring the Ordinance null and void. The dispositive portion of the decision reads:
WHEREFORE, in view of all the foregoing, [O]rdinance No. 7774 of the City of Manila is hereby
declared null and void.
Accordingly, the preliminary injunction heretofor issued is hereby made permanent.
SO ORDERED.17
The RTC noted that the ordinance "strikes at the personal liberty of the individual guaranteed and
jealously guarded by the Constitution."18 Reference was made to the provisions of the Constitution

encouraging private enterprises and the incentive to needed investment, as well as the right to
operate economic enterprises. Finally, from the observation that the illicit relationships the Ordinance
sought to dissuade could nonetheless be consummated by simply paying for a 12-hour stay, the
RTC likened the law to the ordinance annulled in Ynot v. Intermediate Appellate Court,19 where the
legitimate purpose of preventing indiscriminate slaughter of carabaos was sought to be effected
through an inter-province ban on the transport of carabaos and carabeef.
The City later filed a petition for review on certiorari with the Supreme Court.20 The petition was
docketed as G.R. No. 112471. However in a resolution dated January 26, 1994, the Court treated
the petition as a petition forcertiorari and referred the petition to the Court of Appeals.21
Before the Court of Appeals, the City asserted that the Ordinance is a valid exercise of police power
pursuant to Section 458 (4)(iv) of the Local Government Code which confers on cities, among other
local government units, the power:
[To] regulate the establishment, operation and maintenance of cafes, restaurants, beerhouses,
hotels, motels, inns, pension houses, lodging houses and other similar establishments, including
tourist guides and transports.22
The Ordinance, it is argued, is also a valid exercise of the power of the City under Article III, Section
18(kk) of the Revised Manila Charter, thus:
"to enact all ordinances it may deem necessary and proper for the sanitation and safety, the
furtherance of the prosperity and the promotion of the morality, peace, good order, comfort,
convenience and general welfare of the city and its inhabitants, and such others as be necessary to
carry into effect and discharge the powers and duties conferred by this Chapter; and to fix penalties
for the violation of ordinances which shall not exceed two hundred pesos fine or six months
imprisonment, or both such fine and imprisonment for a single offense. 23
Petitioners argued that the Ordinance is unconstitutional and void since it violates the right to privacy
and the freedom of movement; it is an invalid exercise of police power; and it is an unreasonable
and oppressive interference in their business.
The Court of Appeals reversed the decision of the RTC and affirmed the constitutionality of the
Ordinance.24First, it held that the Ordinance did not violate the right to privacy or the freedom of
movement, as it only penalizes the owners or operators of establishments that admit individuals for
short time stays. Second, the virtually limitless reach of police power is only constrained by having a
lawful object obtained through a lawful method. The lawful objective of the Ordinance is satisfied
since it aims to curb immoral activities. There is a lawful method since the establishments are still
allowed to operate. Third, the adverse effect on the establishments is justified by the well-being of its
constituents in general. Finally, as held in Ermita-Malate Motel Operators Association v. City Mayor
of Manila, liberty is regulated by law.
TC, WLC and STDC come to this Court via petition for review on certiorari. 25 In their petition and
Memorandum, petitioners in essence repeat the assertions they made before the Court of Appeals.
They contend that the assailed Ordinance is an invalid exercise of police power.
II.
We must address the threshold issue of petitioners standing. Petitioners allege that as owners of
establishments offering "wash-up" rates, their business is being unlawfully interfered with by the

Ordinance. However, petitioners also allege that the equal protection rights of their clients are also
being interfered with. Thus, the crux of the matter is whether or not these establishments have the
requisite standing to plead for protection of their patrons' equal protection rights.
Standing or locus standi is the ability of a party to demonstrate to the court sufficient connection to
and harm from the law or action challenged to support that party's participation in the case. More
importantly, the doctrine of standing is built on the principle of separation of powers, 26 sparing as it
does unnecessary interference or invalidation by the judicial branch of the actions rendered by its
co-equal branches of government.
The requirement of standing is a core component of the judicial system derived directly from the
Constitution.27The constitutional component of standing doctrine incorporates concepts which
concededly are not susceptible of precise definition. 28 In this jurisdiction, the extancy of "a direct and
personal interest" presents the most obvious cause, as well as the standard test for a petitioner's
standing.29 In a similar vein, the United States Supreme Court reviewed and elaborated on the
meaning of the three constitutional standing requirements of injury, causation, and redressability
in Allen v. Wright.30
Nonetheless, the general rules on standing admit of several exceptions such as the overbreadth
doctrine, taxpayer suits, third party standing and, especially in the Philippines, the doctrine of
transcendental importance.31
For this particular set of facts, the concept of third party standing as an exception and the
overbreadth doctrine are appropriate. In Powers v. Ohio,32 the United States Supreme Court wrote
that: "We have recognized the right of litigants to bring actions on behalf of third parties, provided
three important criteria are satisfied: the litigant must have suffered an injury-in-fact, thus giving him
or her a "sufficiently concrete interest" in the outcome of the issue in dispute; the litigant must have a
close relation to the third party; and there must exist some hindrance to the third party's ability to
protect his or her own interests."33 Herein, it is clear that the business interests of the petitioners are
likewise injured by the Ordinance. They rely on the patronage of their customers for their continued
viability which appears to be threatened by the enforcement of the Ordinance. The relative silence in
constitutional litigation of such special interest groups in our nation such as the American Civil
Liberties Union in the United States may also be construed as a hindrance for customers to bring
suit.34
American jurisprudence is replete with examples where parties-in-interest were allowed standing to
advocate or invoke the fundamental due process or equal protection claims of other persons or
classes of persons injured by state action. In Griswold v. Connecticut,35 the United States Supreme
Court held that physicians had standing to challenge a reproductive health statute that would
penalize them as accessories as well as to plead the constitutional protections available to their
patients. The Court held that:
"The rights of husband and wife, pressed here, are likely to be diluted or adversely affected unless
those rights are considered in a suit involving those who have this kind of confidential relation to
them."36
An even more analogous example may be found in Craig v. Boren,37 wherein the United States
Supreme Court held that a licensed beverage vendor has standing to raise the equal protection
claim of a male customer challenging a statutory scheme prohibiting the sale of beer to males under
the age of 21 and to females under the age of 18. The United States High Court explained that the
vendors had standing "by acting as advocates of the rights of third parties who seek access to their
market or function."38

Assuming arguendo that petitioners do not have a relationship with their patrons for the former to
assert the rights of the latter, the overbreadth doctrine comes into play. In overbreadth analysis,
challengers to government actionare in effect permitted to raise the rights of third parties. Generally
applied to statutes infringing on the freedom of speech, the overbreadth doctrine applies when a
statute needlessly restrains even constitutionally guaranteed rights. 39 In this case, the petitioners
claim that the Ordinance makes a sweeping intrusion into the right to liberty of their clients. We can
see that based on the allegations in the petition, the Ordinance suffers from overbreadth.
We thus recognize that the petitioners have a right to assert the constitutional rights of their clients to
patronize their establishments for a "wash-rate" time frame.
III.
To students of jurisprudence, the facts of this case will recall to mind not only the recent City of
Manila ruling, but our 1967 decision in Ermita-Malate Hotel and Motel Operations Association, Inc.,
v. Hon. City Mayor of Manila.40Ermita-Malate concerned the City ordinance requiring patrons to fill up
a prescribed form stating personal information such as name, gender, nationality, age, address and
occupation before they could be admitted to a motel, hotel or lodging house. This earlier ordinance
was precisely enacted to minimize certain practices deemed harmful to public morals. A purpose
similar to the annulled ordinance in City of Manila which sought a blanket ban on motels, inns and
similar establishments in the Ermita-Malate area. However, the constitutionality of the ordinance
in Ermita-Malate was sustained by the Court.
The common thread that runs through those decisions and the case at bar goes beyond the
singularity of the localities covered under the respective ordinances. All three ordinances were
enacted with a view of regulating public morals including particular illicit activity in transient lodging
establishments. This could be described as the middle case, wherein there is no wholesale ban on
motels and hotels but the services offered by these establishments have been severely restricted. At
its core, this is another case about the extent to which the State can intrude into and regulate the
lives of its citizens.
The test of a valid ordinance is well established. A long line of decisions including City of Manila has
held that for an ordinance to be valid, it must not only be within the corporate powers of the local
government unit to enact and pass according to the procedure prescribed by law, it must also
conform to the following substantive requirements: (1) must not contravene the Constitution or any
statute; (2) must not be unfair or oppressive; (3) must not be partial or discriminatory; (4) must not
prohibit but may regulate trade; (5) must be general and consistent with public policy; and (6) must
not be unreasonable.41
The Ordinance prohibits two specific and distinct business practices, namely wash rate admissions
and renting out a room more than twice a day. The ban is evidently sought to be rooted in the police
power as conferred on local government units by the Local Government Code through such
implements as the general welfare clause.
A.
Police power, while incapable of an exact definition, has been purposely veiled in general terms to
underscore its comprehensiveness to meet all exigencies and provide enough room for an efficient
and flexible response as the conditions warrant. 42 Police power is based upon the concept of
necessity of the State and its corresponding right to protect itself and its people. 43 Police power has
been used as justification for numerous and varied actions by the State. These range from the
regulation of dance halls,44 movie theaters,45 gas stations46 and cockpits.47 The awesome scope of

police power is best demonstrated by the fact that in its hundred or so years of presence in our
nations legal system, its use has rarely been denied.
The apparent goal of the Ordinance is to minimize if not eliminate the use of the covered
establishments for illicit sex, prostitution, drug use and alike. These goals, by themselves, are
unimpeachable and certainly fall within the ambit of the police power of the State. Yet the desirability
of these ends do not sanctify any and all means for their achievement. Those means must align with
the Constitution, and our emerging sophisticated analysis of its guarantees to the people. The Bill of
Rights stands as a rebuke to the seductive theory of Macchiavelli, and, sometimes even, the political
majorities animated by his cynicism.
Even as we design the precedents that establish the framework for analysis of due process or equal
protection questions, the courts are naturally inhibited by a due deference to the co-equal branches
of government as they exercise their political functions. But when we are compelled to nullify
executive or legislative actions, yet another form of caution emerges. If the Court were animated by
the same passing fancies or turbulent emotions that motivate many political decisions, judicial
integrity is compromised by any perception that the judiciary is merely the third political branch of
government. We derive our respect and good standing in the annals of history by acting as judicious
and neutral arbiters of the rule of law, and there is no surer way to that end than through the
development of rigorous and sophisticated legal standards through which the courts analyze the
most fundamental and far-reaching constitutional questions of the day.
B.
The primary constitutional question that confronts us is one of due process, as guaranteed under
Section 1, Article III of the Constitution. Due process evades a precise definition. 48 The purpose of
the guaranty is to prevent arbitrary governmental encroachment against the life, liberty and property
of individuals. The due process guaranty serves as a protection against arbitrary regulation or
seizure. Even corporations and partnerships are protected by the guaranty insofar as their property
is concerned.
The due process guaranty has traditionally been interpreted as imposing two related but distinct
restrictions on government, "procedural due process" and "substantive due process." Procedural due
process refers to the procedures that the government must follow before it deprives a person of life,
liberty, or property.49 Procedural due process concerns itself with government action adhering to the
established process when it makes an intrusion into the private sphere. Examples range from the
form of notice given to the level of formality of a hearing.
If due process were confined solely to its procedural aspects, there would arise absurd situation of
arbitrary government action, provided the proper formalities are followed. Substantive due process
completes the protection envisioned by the due process clause. It inquires whether the government
has sufficient justification for depriving a person of life, liberty, or property.50
The question of substantive due process, moreso than most other fields of law, has reflected
dynamism in progressive legal thought tied with the expanded acceptance of fundamental freedoms.
Police power, traditionally awesome as it may be, is now confronted with a more rigorous level of
analysis before it can be upheld. The vitality though of constitutional due process has not been
predicated on the frequency with which it has been utilized to achieve a liberal result for, after all, the
libertarian ends should sometimes yield to the prerogatives of the State. Instead, the due process
clause has acquired potency because of the sophisticated methodology that has emerged to
determine the proper metes and bounds for its application.

C.
The general test of the validity of an ordinance on substantive due process grounds is best tested
when assessed with the evolved footnote 4 test laid down by the U.S. Supreme Court in U.S. v.
Carolene Products.51 Footnote 4 of the Carolene Products case acknowledged that the judiciary
would defer to the legislature unless there is a discrimination against a "discrete and insular" minority
or infringement of a "fundamental right."52 Consequently, two standards of judicial review were
established: strict scrutiny for laws dealing with freedom of the mind or restricting the political
process, and the rational basis standard of review for economic legislation.
A third standard, denominated as heightened or immediate scrutiny, was later adopted by the U.S.
Supreme Court for evaluating classifications based on gender 53 and legitimacy.54 Immediate scrutiny
was adopted by the U.S. Supreme Court in Craig,55 after the Court declined to do so in Reed v.
Reed.56 While the test may have first been articulated in equal protection analysis, it has in the
United States since been applied in all substantive due process cases as well.
We ourselves have often applied the rational basis test mainly in analysis of equal protection
challenges.57 Using the rational basis examination, laws or ordinances are upheld if they rationally
further a legitimate governmental interest.58 Under intermediate review, governmental interest is
extensively examined and the availability of less restrictive measures is considered. 59 Applying strict
scrutiny, the focus is on the presence of compelling, rather than substantial, governmental interest
and on the absence of less restrictive means for achieving that interest.
In terms of judicial review of statutes or ordinances, strict scrutiny refers to the standard for
determining the quality and the amount of governmental interest brought to justify the regulation of
fundamental freedoms.60 Strict scrutiny is used today to test the validity of laws dealing with the
regulation of speech, gender, or race as well as other fundamental rights as expansion from its
earlier applications to equal protection.61 The United States Supreme Court has expanded the scope
of strict scrutiny to protect fundamental rights such as suffrage,62 judicial access63 and interstate
travel.64
If we were to take the myopic view that an Ordinance should be analyzed strictly as to its effect only
on the petitioners at bar, then it would seem that the only restraint imposed by the law which we are
capacitated to act upon is the injury to property sustained by the petitioners, an injury that would
warrant the application of the most deferential standard the rational basis test. Yet as earlier
stated, we recognize the capacity of the petitioners to invoke as well the constitutional rights of their
patrons those persons who would be deprived of availing short time access or wash-up rates to
the lodging establishments in question.
Viewed cynically, one might say that the infringed rights of these customers were are trivial since
they seem shorn of political consequence. Concededly, these are not the sort of cherished rights
that, when proscribed, would impel the people to tear up their cedulas. Still, the Bill of Rights does
not shelter gravitas alone. Indeed, it is those "trivial" yet fundamental freedoms which the people
reflexively exercise any day without the impairing awareness of their constitutional consequence
that accurately reflect the degree of liberty enjoyed by the people. Liberty, as integrally incorporated
as a fundamental right in the Constitution, is not a Ten Commandments-style enumeration of what
may or what may not be done; but rather an atmosphere of freedom where the people do not feel
labored under a Big Brother presence as they interact with each other, their society and nature, in a
manner innately understood by them as inherent, without doing harm or injury to others.
D.

The rights at stake herein fall within the same fundamental rights to liberty which we upheld in City of
Manila v. Hon. Laguio, Jr. We expounded on that most primordial of rights, thus:
Liberty as guaranteed by the Constitution was defined by Justice Malcolm to include "the right to
exist and the right to be free from arbitrary restraint or servitude. The term cannot be dwarfed into
mere freedom from physical restraint of the person of the citizen, but is deemed to embrace the right
of man to enjoy the facilities with which he has been endowed by his Creator, subject only to such
restraint as are necessary for the common welfare."[65] In accordance with this case, the rights of the
citizen to be free to use his faculties in all lawful ways; to live and work where he will; to earn his
livelihood by any lawful calling; and to pursue any avocation are all deemed embraced in the
concept of liberty.[66]
The U.S. Supreme Court in the case of Roth v. Board of Regents, sought to clarify the meaning of
"liberty." It said:
While the Court has not attempted to define with exactness the liberty . . . guaranteed [by the Fifth
and Fourteenth Amendments], the term denotes not merely freedom from bodily restraint but also
the right of the individual to contract, to engage in any of the common occupations of life, to acquire
useful knowledge, to marry, establish a home and bring up children, to worship God according to the
dictates of his own conscience, and generally to enjoy those privileges long recognized . . . as
essential to the orderly pursuit of happiness by free men. In a Constitution for a free people, there
can be no doubt that the meaning of "liberty" must be broad indeed. 67 [Citations omitted]
It cannot be denied that the primary animus behind the ordinance is the curtailment of sexual
behavior. The City asserts before this Court that the subject establishments "have gained notoriety
as venue of prostitution, adultery and fornications in Manila since they provide the necessary
atmosphere for clandestine entry, presence and exit and thus became the ideal haven for prostitutes
and thrill-seekers."68 Whether or not this depiction of a mise-en-scene of vice is accurate, it cannot
be denied that legitimate sexual behavior among willing married or consenting single adults which is
constitutionally protected69 will be curtailed as well, as it was in the City of Manila case. Our holding
therein retains significance for our purposes:
The concept of liberty compels respect for the individual whose claim to privacy and interference
demands respect. As the case of Morfe v. Mutuc, borrowing the words of Laski, so very aptly stated:
Man is one among many, obstinately refusing reduction to unity. His separateness, his isolation, are
indefeasible; indeed, they are so fundamental that they are the basis on which his civic obligations
are built. He cannot abandon the consequences of his isolation, which are, broadly speaking, that
his experience is private, and the will built out of that experience personal to himself. If he surrenders
his will to others, he surrenders himself. If his will is set by the will of others, he ceases to be a
master of himself. I cannot believe that a man no longer a master of himself is in any real sense free.
Indeed, the right to privacy as a constitutional right was recognized in Morfe, the invasion of which
should be justified by a compelling state interest. Morfe accorded recognition to the right to privacy
independently of its identification with liberty; in itself it is fully deserving of constitutional protection.
Governmental powers should stop short of certain intrusions into the personal life of the citizen. 70
We cannot discount other legitimate activities which the Ordinance would proscribe or impair. There
are very legitimate uses for a wash rate or renting the room out for more than twice a day. Entire
families are known to choose pass the time in a motel or hotel whilst the power is momentarily out in
their homes. In transit passengers who wish to wash up and rest between trips have a legitimate
purpose for abbreviated stays in motels or hotels. Indeed any person or groups of persons in need of

comfortable private spaces for a span of a few hours with purposes other than having sex or using
illegal drugs can legitimately look to staying in a motel or hotel as a convenient alternative.
E.
That the Ordinance prevents the lawful uses of a wash rate depriving patrons of a product and the
petitioners of lucrative business ties in with another constitutional requisite for the legitimacy of the
Ordinance as a police power measure. It must appear that the interests of the public generally, as
distinguished from those of a particular class, require an interference with private rights and the
means must be reasonably necessary for the accomplishment of the purpose and not unduly
oppressive of private rights.71 It must also be evident that no other alternative for the accomplishment
of the purpose less intrusive of private rights can work. More importantly, a reasonable relation must
exist between the purposes of the measure and the means employed for its accomplishment, for
even under the guise of protecting the public interest, personal rights and those pertaining to private
property will not be permitted to be arbitrarily invaded.72
Lacking a concurrence of these requisites, the police measure shall be struck down as an arbitrary
intrusion into private rights. As held in Morfe v. Mutuc, the exercise of police power is subject to
judicial review when life, liberty or property is affected. 73 However, this is not in any way meant to
take it away from the vastness of State police power whose exercise enjoys the presumption of
validity.74
Similar to the Comelec resolution requiring newspapers to donate advertising space to candidates,
this Ordinance is a blunt and heavy instrument.75 The Ordinance makes no distinction between
places frequented by patrons engaged in illicit activities and patrons engaged in legitimate actions.
Thus it prevents legitimate use of places where illicit activities are rare or even unheard of. A plain
reading of section 3 of the Ordinance shows it makes no classification of places of lodging, thus
deems them all susceptible to illicit patronage and subject them without exception to the unjustified
prohibition.
The Court has professed its deep sentiment and tenderness of the Ermita-Malate area, its longtime
home,76 and it is skeptical of those who wish to depict our capital city the Pearl of the Orient as a
modern-day Sodom or Gomorrah for the Third World set. Those still steeped in Nick Joaquin-dreams
of the grandeur of Old Manila will have to accept that Manila like all evolving big cities, will have its
problems. Urban decay is a fact of mega cities such as Manila, and vice is a common problem
confronted by the modern metropolis wherever in the world. The solution to such perceived decay is
not to prevent legitimate businesses from offering a legitimate product. Rather, cities revive
themselves by offering incentives for new businesses to sprout up thus attracting the dynamism of
individuals that would bring a new grandeur to Manila.
The behavior which the Ordinance seeks to curtail is in fact already prohibited and could in fact be
diminished simply by applying existing laws. Less intrusive measures such as curbing the
proliferation of prostitutes and drug dealers through active police work would be more effective in
easing the situation. So would the strict enforcement of existing laws and regulations penalizing
prostitution and drug use. These measures would have minimal intrusion on the businesses of the
petitioners and other legitimate merchants. Further, it is apparent that the Ordinance can easily be
circumvented by merely paying the whole day rate without any hindrance to those engaged in illicit
activities. Moreover, drug dealers and prostitutes can in fact collect "wash rates" from their clientele
by charging their customers a portion of the rent for motel rooms and even apartments.
IV.

We reiterate that individual rights may be adversely affected only to the extent that may fairly be
required by the legitimate demands of public interest or public welfare. The State is a leviathan that
must be restrained from needlessly intruding into the lives of its citizens. However well-intentioned
the Ordinance may be, it is in effect an arbitrary and whimsical intrusion into the rights of the
establishments as well as their patrons. The Ordinance needlessly restrains the operation of the
businesses of the petitioners as well as restricting the rights of their patrons without sufficient
justification. The Ordinance rashly equates wash rates and renting out a room more than twice a day
with immorality without accommodating innocuous intentions.
The promotion of public welfare and a sense of morality among citizens deserves the full
endorsement of the judiciary provided that such measures do not trample rights this Court is sworn
to protect.77 The notion that the promotion of public morality is a function of the State is as old as
Aristotle.78 The advancement of moral relativism as a school of philosophy does not de-legitimize the
role of morality in law, even if it may foster wider debate on which particular behavior to penalize. It is
conceivable that a society with relatively little shared morality among its citizens could be functional
so long as the pursuit of sharply variant moral perspectives yields an adequate accommodation of
different interests.79
To be candid about it, the oft-quoted American maxim that "you cannot legislate morality" is
ultimately illegitimate as a matter of law, since as explained by Calabresi, that phrase is more
accurately interpreted as meaning that efforts to legislate morality will fail if they are widely at
variance with public attitudes about right and wrong.80 Our penal laws, for one, are founded on ageold moral traditions, and as long as there are widely accepted distinctions between right and wrong,
they will remain so oriented.
Yet the continuing progression of the human story has seen not only the acceptance of the rightwrong distinction, but also the advent of fundamental liberties as the key to the enjoyment of life to
the fullest. Our democracy is distinguished from non-free societies not with any more extensive
elaboration on our part of what is moral and immoral, but from our recognition that the individual
liberty to make the choices in our lives is innate, and protected by the State. Independent and fairminded judges themselves are under a moral duty to uphold the Constitution as the embodiment of
the rule of law, by reason of their expression of consent to do so when they take the oath of office,
and because they are entrusted by the people to uphold the law.81
Even as the implementation of moral norms remains an indispensable complement to governance,
that prerogative is hardly absolute, especially in the face of the norms of due process of liberty. And
while the tension may often be left to the courts to relieve, it is possible for the government to avoid
the constitutional conflict by employing more judicious, less drastic means to promote morality.
WHEREFORE, the Petition is GRANTED. The Decision of the Court of Appeals is REVERSED, and
the Decision of the Regional Trial Court of Manila, Branch 9, is REINSTATED. Ordinance No. 7774
is hereby declared UNCONSTITUTIONAL. No pronouncement as to costs.
SO ORDERED.
DANTE O. TINGA
Associate Justice
WE CONCUR:
REYNATO S. PUNO
Chief Justice

LEONARDO A. QUISUMBING
Associate Justice

CONSUELO YNARES-SANTIAGO
Associate Justice

(On Official Leave)

ANTONIO T. CARPIO
Associate Justice

MA. ALICIA AUSTRIA-MARTINEZ

Associate Justice

RENATO C. CORONA
Associate Justice

CONCHITA CARPIO MORALES

Associate Justice

ADOLFO S. AZCUNA
Associate Justice

PRESBITERO J. VELASCO, JR.

Associate Justice

MINITA V. CHICO-NAZARIO
Associate Justice

ANTONIO EDUARDO B. NACHUR

Associate Justice

TERESITA LEONARDO DE CASTRO

Associate Justice

(On Sick Leave)

ARTURO D. BRION
Associate Justice

(On Official Leave)

DIOSDADO M. PERALTA
Associate Justice
CERTIFICATION
Pursuant to Article VIII, Section 13 of the Constitution, it is hereby certified that the conclusions in the
above Decision were reached in consultation before the case was assigned to the writer of the
opinion of the Court.
REYNATO S. PUNO
Chief Justice
G.R. No. L-38429 June 30, 1988
CARLOS BALACUIT, LAMBERTO TAN and SERGIO YU CARCEL, petitioners-appellants,
vs.
COURT OF FIRST INSTANCE OF AGUSAN DEL NORTE AND BUTUAN CITY, Branch 11, and
the CITY OF BUTUAN, respondents-appellees.
Romeo B. Sanchez, Eduardo Deza Mercado and Wilfred D. Asis for petitioners.
The City Legal Officer for respondents-appeliees.

GANCAYCO, J.:

At issue in the petition for review before Us is the validity and constitutionality of Ordinance No. 640
passed by the Municipal Board of the City of Butuan on April 21, 1969, the title and text of which are
reproduced below:
ORDINANCE--640
ORDINANCE PENALIZING ANY PERSON, GROUP OF PERSONS, ENTITY OR CORPORATION
ENGAGED IN THE BUSINESS OF SELLING ADMISSION TICKETS TO ANY MOVIE OR OTHER
PUBLIC EXHIBITIONS, GAMES, CONTESTS OR OTHER PERFORMANCES TO REQUIRE
CHILDREN BETWEEN SEVEN (7) AND TWELVE (12) YEARS OF AGE TO PAY FULL PAYMENT
FOR TICKETS INTENDED FOR ADULTS BUT SHOULD CHARGE ONLY ONE-HALF OF THE SAID
TICKET
xxx xxx xxx
Be it ordained by the Municipal Board of the City of Butuan in session assembled, that:
SECTION 1It shall be unlawful for any person, group of persons, entity, or corporation engaged in
the business of selling admission tickets to any movie or other public exhibitions, games, contests,
or other performances to require children between seven (7) and twelve (12) years of age to pay full
payment for admission tickets intended for adults but should charge only one-half of the value of the
said tickets.
SECTION 2Any person violating the provisions of this Ordinance shall upon conviction be
punished by a fine of not less than TWO HUNDRED PESOS (P200.00) but not more than SIX
HUNDRED PESOS (P600.00) or an imprisonment of not less than TWO (2) MONTHS or not more
than SIX (6) MONTHS or both such firm and imprisonment in the discretion of the Court.
If the violator be a firm or corporation the penalty shall be imposed upon the Manager, Agent or
Representative of such firm or corporation.
SECTION 3This ordinance shall take effect upon its approval.
Petitioners are Carlos Balacuit Lamberto Tan, and Sergio Yu Carcel managers of the Maya and
Dalisay Theaters, the Crown Theater, and the Diamond Theater, respectively. Aggrieved by the effect
of Ordinance No. 640, they filed a complaint before the Court of First Instance of Agusan del Norte
and Butuan City docketed as Special Civil Case No. 237 on June 30, 1969 praying, inter alia, that
the subject ordinance be declared unconstitutional and, therefore, void and unenforceable. 1
Upon motion of the petitioners, 2 a temporary restraining order was issued on July 14, 1969 by the court
a quo enjoining the respondent City of Butuan and its officials from enforcing Ordinance No. 640. 3 On
July 29, 1969, respondents filed their answer sustaining the validity of the ordinance. 4
On January 30, 1973, the litigants filed their stipulation of facts. 5 On June 4, 1973, the respondent
court rendered its decision, 6 the dispositive part of which reads:
IN THE LIGHT OF ALL THE FOREGOING, the Court hereby adjudges in favor of the respondents
and against the petitioners, as follows:

1. Declaring Ordinance No. 640 of the City of Butuan constitutional and valid: Provided, however,
that the fine for a single offense shall not exceed TWO HUNDRED PESOS, as prescribed in the
aforequoted Section 15 (nn) of Rep. Act No. 523;
2. Dissolving the restraining order issued by this Court; and;
3. Dismissing the complaint, with costs against the petitioners.
4. SO ORDERED. 7
Petitioners filed their motion for reconsideration 8 of the decision of the court a quo which was denied in
a resolution of the said court dated November 10, 1973. 9
Hence, this petition.
Petitioners attack the validity and constitutionality of Ordinance No. 640 on the grounds that it is ultra
vires and an invalid exercise of police power.
Petitioners contend that Ordinance No. 640 is not within the power of' the Municipal Board to enact
as provided for in Section 15(n) of Republic Act No. 523, the Charter of the City of Butuan, which
states:
Sec. 15. General powers and duties of the Board Except as otherwise provided by law, and
subject to the conditions and limitations thereof, the Municipal Board shall have the following
legislative powers:
xxx xxx xxx
(n) To regulate and fix the amount of the license fees for the following; . . . theaters, theatrical
performances, cinematographs, public exhibitions and all other performances and places of
amusements ...
xxx xxx xxx
Respondent City of Butuan, on the other hand, attempts to justify the enactment of the ordinance by
invoking the general welfare clause embodied in Section 15 (nn) of the cited law, which provides:
(nn) To enact all ordinances it may deem necessary and proper for the sanitation and safety, the
furtherance of the prosperity, and the promotion of the morality, peace, good order, comfort,
convenience, and general welfare of the city and its inhabitants, and such others as may be
necessary to carry into effect and discharge the powers and duties conferred by this Act, and to fix
the penalties for the violation of the ordinances, which shall not exceed a two hundred peso fine or
six months imprisonment, or both such fine and imprisonment, for a single offense.
We can see from the aforecited Section 15(n) that the power to regulate and fix the amount of
license fees for theaters, theatrical performances, cinematographs, public exhibitions and other
places of amusement has been expressly granted to the City of Butuan under its charter. But the
question which needs to be resolved is this: does this power to regulate include the authority to
interfere in the fixing of prices of admission to these places of exhibition and amusement whether
under its general grant of power or under the general welfare clause as invoked by the City?

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

In Homeowners' Association of the Philippines, Inc. v. Municipal Board of the City of Manila, 19 this
Court held:
The authority of municipal corporations to regulate is essentially police power, Inasmuch as the
same generally entails a curtailment of the liberty, the rights and/or the property of persons, which
are protected and even guaranteed by the Constitution, the exercise of police power is necessarily
subject to a qualification, limitation or restriction demanded by the regard, the respect and the
obedience due to the prescriptions of the fundamental law, particularly those forming part of the
Constitution of Liberty, otherwise known as the Bill of Rights the police power measure must be
reasonable. In other words, individual rights may be adversely affected by the exercise of police
power to the extent only and only to the extent--that may be fairly required by the legitimate
demands of public interest or public welfare.
What is the reason behind the enactment of Ordinance No. 640?
A reading of the minutes of the regular session of the Municipal Board when the ordinance in
question was passed shows that a certain Councilor Calo, the proponent of the measure, had taken
into account the complaints of parents that for them to pay the full price of admission for their
children is too financially burdensome.
The trial court advances the view that "even if the subject ordinance does not spell out its raison
d'etre in all probability the respondents were impelled by the awareness that children are entitled to
share in the joys of their elders, but that considering that, apart from size, children between the ages
of seven and twelve cannot fully grasp the nuance of movies or other public exhibitions, games,
contests or other performances, the admission prices with respect to them ought to be reduced. 19a
We must bear in mind that there must be public necessity which demands the adoption of proper
measures to secure the ends sought to be attained by the enactment of the ordinance, and the large
discretion is necessarily vested in the legislative authority to determine not only what the interests of
the public require, but what measures are necessary for the protection of such interests. 20 The
methods or means used to protect the public health, morals, safety or welfare, must have some relation to
the end in view, for under the guise of the police power, personal rights and those pertaining to private
property will not be permitted to be arbitralily invaded by the legislative department. 21
We agree with petitioners that the ordinance is not justified by any necessity for the public interest.
The police power legislation must be firmly grounded on public interest and welfare, and a
reasonable relation must exist between purposes and means. 22 The evident purpose of the ordinance
is to help ease the burden of cost on the part of parents who have to shell out the same amount of money
for the admission of their children, as they would for themselves, A reduction in the price of admission
would mean corresponding savings for the parents; however, the petitioners are the ones made to bear
the cost of these savings. The ordinance does not only make the petitioners suffer the loss of earnings
but it likewise penalizes them for failure to comply with it. Furthermore, as petitioners point out, there will
be difficulty in its implementation because as already experienced by petitioners since the effectivity of the
ordinance, children over 12 years of age tried to pass off their age as below 12 years in order to avail of
the benefit of the ordinance. The ordinance does not provide a safeguard against this undesirable
practice and as such, the respondent City of Butuan now suggests that birth certificates be exhibited by
movie house patrons to prove the age of children. This is, however, not at all practicable. We can see that
the ordinance is clearly unreasonable if not unduly oppressive upon the business of petitioners. Moreover,

there is no discernible relation between the ordinance and the promotion of public health, safety, morals
and the general welfare.

Respondent City of Butuan claims that it was impelled to protect the youth from the pernicious
practice of movie operators and other public exhibitions promoters or the like of demanding equal
price for their admission tickets along with the adults. This practice is allegedly repugnant and
unconscionable to the interest of the City in the furtherance of the prosperity, peace, good order,
comfort, convenience and the general well-being of its inhabitants.
There is nothing pernicious in demanding equal price for both children and adults. The petitioners
are merely conducting their legitimate businesses. The object of every business entrepreneur is to
make a profit out of his venture. There is nothing immoral or injurious in charging the same price for
both children and adults. In fact, no person is under compulsion to purchase a ticket. It is a totally
voluntary act on the part of the purchaser if he buys a ticket to such performances.
Respondent City of Butuan claims that Ordinance No. 640 is reasonable and necessary to lessen
the economic burden of parents whose minor children are lured by the attractive nuisance being
maintained by the petitioners. Respondent further alleges that by charging the full price, the children
are being exploited by movie house operators. We fail to see how the children are exploited if they
pay the full price of admission. They are treated with the same quality of entertainment as the adults.
The supposition of the trial court that because of their age children cannot fully grasp the nuances of
such entertainment as adults do fails to convince Us that the reduction in admission ticket price is
justifiable. In fact, by the very claim of respondent that movies and the like are attractive nuisances,
it is difficult to comprehend why the municipal board passed the subject ordinance. How can the
municipal authorities consider the movies an attractive nuisance and yet encourage parents and
children to patronize them by lowering the price of admission for children? Perhaps, there is some
,truth to the argument of petitioners that Ordinance No. 640 is detrimental to the public good and the
general welfare of society for it encourages children of tender age to frequent the movies, rather
than attend to their studies in school or be in their homes.
Moreover, as a logical consequence of the ordinance, movie house and theater operators will be
discouraged from exhibiting wholesome movies for general patronage, much less children's pictures
if only to avoid compliance with the ordinance and still earn profits for themselves. For after all, these
movie house and theater operators cannot be compelled to exhibit any particular kind of film except
those films which may be dictated by public demand and those which are restricted by censorship
laws. So instead of children being able to share in the joys of their elders as envisioned by the trial
court, there will be a dearth of wholesome and educational movies for them to enjoy.
There are a number of cases decided by the Supreme Court and the various state courts of the
United States which upheld the right of the proprietor of a theater to fix the price of an admission
ticket as against the right of the state to interfere in this regard and which We consider applicable to
the case at bar.
A theater ticket has been described to be either a mere license, revocable at the will of the proprietor
of the theater or it may be evidence of a contract whereby, for a valuable consideration, the
purchaser has acquired the right to enter the theater and observe the performance on condition that
he behaves properly. 23 Such ticket, therefore, represents a right, Positive or conditional, as the case may
be, according to the terms of the original contract of sale. This right is clearly a right of property. The ticket

which represents that right is also, necessarily, a species of property. As such, the owner thereof, in the
absence of any condition to the contrary in the contract by which he obtained it, has the clear right to
dispose of it, to sell it to whom he pleases and at such price as he can obtain. 24 So that an act prohibiting
the sale of tickets to theaters or other places of amusement at more than the regular price was held
invalid as conflicting with the state constitution securing the right of property. 25

In Collister vs. Hayman, 26 it was held:

The defendants were conducting a private business, which, even if clothed with a public interest,
was without a franchise to accommodate the public, and they had the right to control it, the same as
the proprietors of any other business, subject to such obligations as were placed upon them by
statute. Unlike a carrier of passengers, for instance, with a franchise from the state, and hence under
obligation to transport anyone who applies and to continue the business year in and year out, the
proprietors of a theater can open and close their place at will, and no one can make a lawful
complaint. They can charge what they choose for admission to their theater. They can limit the
number admitted. They can refuse to sell tickets and collect the price of admission at the door. They
can preserve order and enforce quiet while the performance is going on. They can make it a part of
the contract and condition of admission, by giving due notice and printing the condition in the ticket
that no one shall be admitted under 21 years of age, or that men only or women only shall be
admitted, or that a woman cannot enter unless she is accompanied by a male escort, and the like.
The proprietors, in the control of their business, may regulate the terms of admission in any
reasonable way. If those terms are not satisfactory, no one is obliged to buy a ticket or make the
contract. If the terms are satisfactory, and the contract is made, the minds of the parties meet upon
the condition, and the purchaser impliedly promises to perform it.
In Tyson and Bro. United Theater Ticket Officers, Inc. vs. Banton, 27 the United States Supreme
Court held:
... And certainly a place of entertainment is in no legal sense a public utility; and quite as certainly, its
activities are not such that their enjoyment can be regarded under any conditions from the point of
view of an emergency.
The interest of the public in theaters and other places of entertainment may be more nearly, and with
better reason, assimilated to the like interest in provision stores and markets and in the rental of
houses and apartments for residence purposes; although in importance it fails below such an
interest in the proportion that food and shelter are of more moment than amusement or instruction.
As we have shown there is no legislative power to fix the prices of provisions or clothing, or the
rental charges for houses and apartments, in the absence of some controlling emergency; and we
are unable to perceive any dissimilarities of such quality or degree as to justify a different rule in
respect of amusements and entertainment ...
We are in consonance with the foregoing observations and conclusions of American courts. In this
jurisdiction, legislation had been passed controlling the prices of goods commodities and drugs
during periods of emergency,28 limiting the net profits of public utility 29 as well as regulating rentals of
residential apartments for a limited period, 30 as a matter of national policy in the interest of public health
and safety, economic security and the general welfare of the people. And these laws cannot be impugned
as unconstitutional for being violative of the due process clause.

However, the same could not be said of theaters, cinematographs and other exhibitions. In no sense
could these businesses be considered public utilities. The State has not found it appropriate as a
national policy to interfere with the admission prices to these performances. This does not mean
however, that theaters and exhibitions are not affected with public interest even to a certain degree.
Motion pictures have been considered important both as a medium for the communication of Ideas
and expression of the artistic impulse. Their effects on the perceptions by our people of issues and
public officials or public figures as well as the prevailing cultural traits are considerable. 31 People of
all ages flock to movie houses, games and other public exhibitions for recreation and relaxation. The
government realizing their importance has seen it fit to enact censorship laws to regulate the movie
industry.32 Their aesthetic entertainment and even educational values cannot be underestimated. Even
police measures regulating the operation of these businesses have been upheld in order to safeguard
public health and safety.
Nonetheless, as to the question of the subject ordinance being a valid exercise of police power, the
same must be resolved in the negative. While it is true that a business may be regulated, it is equally
true that such regulation must be within the bounds of reason, that is, the regulatory ordinance must
be reasonable, and its provisions cannot be oppressive amounting to an arbitrary interference with
the business or calling subject of regulation. A lawful business or calling may not, under the guise of
regulation, be unreasonably interfered with even by the exercise of police power. 33 A police measure
for the regulation of the conduct, control and operation of a business should not encroach upon the
legitimate and lawful exercise by the citizens of their property rights. 34 The right of the owner to fix a price
at which his property shall be sold or used is an inherent attribute of the property itself and, as such,
within the protection of the due process clause."" Hence, the proprietors of a theater have a right to
manage their property in their own way, to fix what prices of admission they think most for their own
advantage, and that any person who did not approve could stay away. 36
Respondent City of Butuan argues that the presumption is always in favor of the validity of the
ordinance. This maybe the rule but it has already been held that although the presumption is always
in favor of the validity or reasonableness of the ordinance, such presumption must nevertheless be
set aside when the invalidity or unreasonableness appears on the face of the ordinance itself or is
established by proper evidence. 37 The exercise of police power by the local government is valid unless it
contravenes the fundamental law of the land, or an act of the legislature, or unless it is against public
policy or is unreasonable, oppressive, partial, discriminating or in derogation of a common right. 38
Ordinance No. 640 clearly invades the personal and property rights of petitioners for even if We
could assume that, on its face, the interference was reasonable, from the foregoing considerations, it
has been fully shown that it is an unwarranted and unlawful curtailment of the property and personal
rights of citizens. For being unreasonable and an undue restraint of trade, it cannot, under the guise
of exercising police power, be upheld as valid.
WHEREFORE, the decision of the trial court in Special Civil Case No. 237 is hereby REVERSED
and SET ASIDE and a new judgment is hereby rendered declaring Ordinance No. 640
unconstitutional and, therefore, null and void. This decision is immediately executory.
SO ORDERED.
Yap, C.J., Narvasa, Cruz, Paras, Padilla, Bidin, Sarmiento and Grio-Aquino, JJ., concur.

Separate Opinions

GUTIERREZ, JR., J., Separate opinion

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

... [T]he proprietors of a theater can open and close their place at will, and no one can make lawful
complaint. They can charge what they choose for admission to their theater. They can limit the
number admitted. They can refuse to sell tickets and collect the price of admission at the door. They
can preserve order and enforce quiet while the performance is going on. They can make it a part of
the contract and a condition of admission, by giving due notice and printing the condition in the ticket
that no one shall be admitted under 21 years of age, or that men only or women only shall be
admitted, or that a woman cannot enter unless she is accompanied by a male escort, and the like.
The proprietors, in the control of their business, may regulate the terms of admission in any
reasonable way. If those terms are not satisfactory, no one is obliged to buy a ticket or make the
contract. If the terms are satisfactory, and the contract is made, the minds of the parties meet upon
the condition, and the purchaser impliedly promises to perform it. (Collister v. Hayman, 76 N.E.
20,183 N.Y. 250, 253, 1 L.R.A. [N.S.] 1188, 11 Am. St. Rep. 740, An Cas. 344).
I see no reason at this time why we should pass upon situations that are not before us or warn
municipal governments beforehand to avoid enacting certain regulations when nobody knows
exactly what circumstances may call for those regulations.
For instance,
A theater ticket has been described to be either a mere license, revocable at the will of the proprietor
of the theater or it may be evidence of a contract whereby, for a valuable consideration, the
purchaser has acquired the right to enter the theater and observe the performance on condition that
he behaves properly (Law of the State.
Screen and Radio by Marchetti, 1939, ec., page 268). Such ticket, therefore, represents a right,
positive or conditional, as the case may be, according to the terms of the original contract of sale.
This right is clearly a right of property. The ticket which represents that right is also, necessarily, a
species of property. As such, the owner thereof, in the absence of any condition to the contrary y in
the contract by which he obtained it, has the clear right to dispose of it, to sell it to whom he pleases
and at such price as he can obtain Ibids, citing Ex-parte Quarg, 84 Pac., 766,149 Cal. 79, 80, 5
L.R.A. [N.S], 183, 117 Am. St. Rep. 11 5, 9 Ann. Ca. 747; Also People v. Steele, 231, III. 340, 344, 14
R.A. [N.S.] 361, 121 Am. St. Rep. 321, 83 N.E. 236). ....
xxx xxx xxx
.... A lawful business or calling may not, under the guise of regulation, be unreasonably interfered
with even by the exercise of police power. (Ogden City v. Leo, 54 Utah 556, 182 P. 530) A police
measure for the regulation of the conduct, control and operation of a business should not encroach
upon the legitimate and lawful exercise by the citizens of their property rights (Pampanga Bus Co.,
Inc. v. Municipality of Tarlac, 3 SCRA 816). The right of the owner to fix a price at which his property
shall be sold or used is an inherent attribute of the property itself and, as such, within the protection
of the due process clause (Tyson and Bro.--United Theater Ticket Officers, Inc. v. Banton, supra).
Hence the proprietors of a theater have a right to manage their property in their own way, to fix what
prices of admission they think most for their own advantage, and that ally person who did not
approve could stay away (Ibid, citing v. Clifford v. Brandon, 2 Campb. 358, 368.).
may be interpreted as carte blanche for movie owners to practically ignore municipal regulation and
do as they please.

More appropriate to my maid is to state that while tile Butuan City ordinance is invalid, it does not
necessarily follow that all forms of regulation are proscribed.
We have ruled in People v. Chan (65 Phil. 612):
In the first place, it must be noted that there can be no doubt that the City of Manila exercises police
power, by delegation and that in the exercise of that power it is authorized to enact ordinances for,
the regulation of the operation of theatres and cinematographs (sec. 2444(m) and (ee) of the
Revised Administrative Code: U.S. v. Gomez Jesus, 31 Phil. 218; U.S. v. Pompeya, 31 Phil. 245).
On April 17, 1935, Ordinance No. 2347 was approved. In section 1 it provides that all first run
theatres or cinematographs should register their seating capacity with the City Treasurer, and in
section 1 it prohibits the sale of tickets in said theatres or cinematographs in excess of their
registered seating capacity.
Before the approval of Ordinance No. 2347, Ordinance No. 2188, approved on July 22, 1933, was in
force, section 1 of which divides cinematographs into three different classes: first, second and third.
The first class includes those located on certain and specified streets like Rosario, Escolta, etc.,
which exhibit films for the first time; those belonging to the second class are those which, not being
located on said streets, also exhibit films for the first time, and those which, being located on said
streets, regularly show films for the second time or which have the exclusive right to show
secondhand films; and the third class comprehends all those which are not included in the first and
second classes.
xxx xxx xxx
To the foregoing must be added, and this is of common knowledge, that the films which are shown
for the first time attract a large attendance, and the theatre or cinematograph, whether it is first or
second class, presenting shows for the first time, would be suffocatingly overcrowded if the number
of tickets were not limited. This is the reason for the prohibition of the sale of tickets in excess of the
seating capacity. The prohibition applies with equal force wherever the same reason exists, that is, to
first and second class theatres which show films for the first time. (at pp. 612- 613)
There being a rational basis for the restriction of sales of tickets beyond seating capacity, the
ordinance is perfectly valid.
The same is true for the situation found in Samson v. Mayor of Bacolod City (60 SCRA 274):
When it is further remembered that insofar as movie houses and other places of amusement are
concerned. (According to Section 17[1] of the City Charter of Bacolod, Commonwealth Act No. 326
119381: 'To regulate and fix the amount of the fees for the following: ... theatres, theatrical
performances, cinematographs, public exhibitions, circuses and all other performances and places
of amusements ....") the least doubt cannot be entertained as to the validity of a measure prohibiting
a proprietor, lessee or operator of an amusement place to admit two or more persons with only one
admission ticket, not only in the interest of preventing fraud insofar as municipal taxes are concerned
but also in accordance with public health, public safety and the general welfare. (Cf. People v. Chan,
65 Phil. 611 [1938]). An American Supreme Court decision, Western Turf Association v. Greenberg,
(204 US 359 [1907] the opinion being penned by Justice Harlan is equally illuminating: 'The statute
is only a regulation of places of public entertainment and amusement upon terms of equal and exact

justice to everyone holding a ticket of admission, and who is not, at the time, under the influence of
liquor, or boisterous in conduct, or of lewd and immoral character. .... Such a regulation, in itself just,
is likewise promotive of peace and good order among those who attend places of public
entertainment and amusement. It is neither an arbitrary exertion of the state's inherent or
governmental power, nor a violation of any right secured by the constitution of the United States. (at
pp. 363-364).
The City of Butuan tries to justify the challenged ordinance by invoking police power. The invocation
is improper. The definitions of police power, including its exercise based on the general welfare
clause, are emphasized to show that the respondents' arguments have no merit
Police power is inherent in the State but not in municipal corporations. For a municipal corporation to
exercise police power, there must be a legislative grant which necessarily also sets the limits for the
exercise of the power.
In the Philippines, the grant of authority to the municipality to exercise police power is embodied in
Section 2238 of the Revised Administrative Code, otherwise known as the General Welfare Clause.
Chartered cities are granted similar authority in their respective charters
The general welfare clause has two branches. The first authorizes the municipal council to enact
such ordinances and make such regulations not repugnant to law, as may be necessary to carry into
effect and discharge the powers and duties conferred upon the municipal council by law. The second
branch authorizes the municipality to enact such ordinances as may be necessary and proper for the
health and safety, promote the prosperity, improve the morals, peace, good order, comfort, and
convenience of the municipality and inhabitants thereof, and for the protection of property therein.
(U.S. v. Salaveria 39 Phil. 103).
This Court has generally been liberal in sustaining municipal action based on the general welfare
clause. In the case before us, however, there appears to be no basis for sustaining the ordinance
even on a generous interpretation of the general welfare clause.

Separate Opinions
GUTIERREZ, JR., J., Separate opinion
The issue before the Court is a simple one. Does Butuan City have the power to compel theatre
owners to charge only half fares for children below twelve even as they charge all other moviegoers
full prices for admission into moviehouses?
Instead of nullifying the municipal ordinance through a broad and sweeping justification of property
rights, I believe, however, that we should do so on a more limited ground directly bearing on the
issue.
I find no rational basis for classifying children as a distinct group insofar as paying for admission into
a moviehouse is concerned. There is absolutely no pretense that the municipal ordinance is
intended to protect children, enhance their morals, promote their health, safeguard their safety,

improve their education, or otherwise promote the general welfare. In fact, the effect of the ordinance
may be the opposite.
With the price of movie tickets suddenly within the reach of many children, they may neglect their
studies or use money intended for food or school supplies to enter moviehouses. Movie owners who
are compelled to accept half prices for a newly increased group of young patrons will be tempted to
allow them to enter moviehouses indiscriminately, including those where scenes of violence, crime,
or even sex are portrayed. Addiction of the young to movie going is definitely injurious to their health.
The avowed purpose of the ordinance--to ease the burden of costs for parents who have to shell out
the same amount of money for the admission of their children as they would for themselves is not
covered by police power. If the city cannot compel refreshment parlors to charge half-prices for
hamburgers, soft drinks, pizzas, or cakes consumed by children by what authority can it impose the
obligation of similarly easing parents' burdens upon the owners of moviehouses?
As discussed by the minority opinion, the legislature may not., under the guise of protecting the
public interest, arbitrarily interfere with private business, or impose unusual and unnecessary
restrictions upon lawful occupations. The imposition enacted by the municipal board of Butuan City
has not been justified by its proponents as a restriction necessary for public health or public welfare.
No reasonable relationship has been shown between a valid purpose and the proper means to
accomplish it.
I hesitate, however, to make a brief for owners of theatres and expound a laissez faire approach
insofar as their businesses are concerned. Movie houses may not be public utilities but as places of
entertainment affected with a certain degree of public interest, they are subject to reasonable
regulation. That regulation is stronger and more restrictive than that of regular or ordinary
businesses.
The following citation for instance, is pure obiter insofar as half-prices for minors are concerned:
... [T]he proprietors of a theater can open and close their place at will, and no one can make lawful
complaint. They can charge what they choose for admission to their theater. They can limit the
number admitted. They can refuse to sell tickets and collect the price of admission at the door. They
can preserve order and enforce quiet while the performance is going on. They can make it a part of
the contract and a condition of admission, by giving due notice and printing the condition in the ticket
that no one shall be admitted under 21 years of age, or that men only or women only shall be
admitted, or that a woman cannot enter unless she is accompanied by a male escort, and the like.
The proprietors, in the control of their business, may regulate the terms of admission in any
reasonable way. If those terms are not satisfactory, no one is obliged to buy a ticket or make the
contract. If the terms are satisfactory, and the contract is made, the minds of the parties meet upon
the condition, and the purchaser impliedly promises to perform it. (Collister v. Hayman, 76 N.E.
20,183 N.Y. 250, 253, 1 L.R.A. [N.S.] 1188, 11 Am. St. Rep. 740, An Cas. 344).
I see no reason at this time why we should pass upon situations that are not before us or warn
municipal governments beforehand to avoid enacting certain regulations when nobody knows
exactly what circumstances may call for those regulations.
For instance,

A theater ticket has been described to be either a mere license, revocable at the will of the proprietor
of the theater or it may be evidence of a contract whereby, for a valuable consideration, the
purchaser has acquired the right to enter the theater and observe the performance on condition that
he behaves properly (Law of the State.
Screen and Radio by Marchetti, 1939, ec., page 268). Such ticket, therefore, represents a right,
positive or conditional, as the case may be, according to the terms of the original contract of sale.
This right is clearly a right of property. The ticket which represents that right is also, necessarily, a
species of property. As such, the owner thereof, in the absence of any condition to the contrary y in
the contract by which he obtained it, has the clear right to dispose of it, to sell it to whom he pleases
and at such price as he can obtain Ibids, citing Ex-parte Quarg, 84 Pac., 766,149 Cal. 79, 80, 5
L.R.A. [N.S], 183, 117 Am. St. Rep. 11 5, 9 Ann. Ca. 747; Also People v. Steele, 231, III. 340, 344, 14
R.A. [N.S.] 361, 121 Am. St. Rep. 321, 83 N.E. 236). ....
xxx xxx xxx
.... A lawful business or calling may not, under the guise of regulation, be unreasonably interfered
with even by the exercise of police power. (Ogden City v. Leo, 54 Utah 556, 182 P. 530) A police
measure for the regulation of the conduct, control and operation of a business should not encroach
upon the legitimate and lawful exercise by the citizens of their property rights (Pampanga Bus Co.,
Inc. v. Municipality of Tarlac, 3 SCRA 816). The right of the owner to fix a price at which his property
shall be sold or used is an inherent attribute of the property itself and, as such, within the protection
of the due process clause (Tyson and Bro.--United Theater Ticket Officers, Inc. v. Banton, supra).
Hence the proprietors of a theater have a right to manage their property in their own way, to fix what
prices of admission they think most for their own advantage, and that ally person who did not
approve could stay away (Ibid, citing v. Clifford v. Brandon, 2 Campb. 358, 368.).
may be interpreted as carte blanche for movie owners to practically ignore municipal regulation and
do as they please.
More appropriate to my maid is to state that while tile Butuan City ordinance is invalid, it does not
necessarily follow that all forms of regulation are proscribed.
We have ruled in People v. Chan (65 Phil. 612):
In the first place, it must be noted that there can be no doubt that the City of Manila exercises police
power, by delegation and that in the exercise of that power it is authorized to enact ordinances for,
the regulation of the operation of theatres and cinematographs (sec. 2444(m) and (ee) of the
Revised Administrative Code: U.S. v. Gomez Jesus, 31 Phil. 218; U.S. v. Pompeya, 31 Phil. 245).
On April 17, 1935, Ordinance No. 2347 was approved. In section 1 it provides that all first run
theatres or cinematographs should register their seating capacity with the City Treasurer, and in
section 1 it prohibits the sale of tickets in said theatres or cinematographs in excess of their
registered seating capacity.
Before the approval of Ordinance No. 2347, Ordinance No. 2188, approved on July 22, 1933, was in
force, section 1 of which divides cinematographs into three different classes: first, second and third.
The first class includes those located on certain and specified streets like Rosario, Escolta, etc.,
which exhibit films for the first time; those belonging to the second class are those which, not being

located on said streets, also exhibit films for the first time, and those which, being located on said
streets, regularly show films for the second time or which have the exclusive right to show
secondhand films; and the third class comprehends all those which are not included in the first and
second classes.
xxx xxx xxx
To the foregoing must be added, and this is of common knowledge, that the films which are shown
for the first time attract a large attendance, and the theatre or cinematograph, whether it is first or
second class, presenting shows for the first time, would be suffocatingly overcrowded if the number
of tickets were not limited. This is the reason for the prohibition of the sale of tickets in excess of the
seating capacity. The prohibition applies with equal force wherever the same reason exists, that is, to
first and second class theatres which show films for the first time. (at pp. 612- 613)
There being a rational basis for the restriction of sales of tickets beyond seating capacity, the
ordinance is perfectly valid.
The same is true for the situation found in Samson v. Mayor of Bacolod City (60 SCRA 274):
When it is further remembered that insofar as movie houses and other places of amusement are
concerned. (According to Section 17[1] of the City Charter of Bacolod, Commonwealth Act No. 326
119381: 'To regulate and fix the amount of the fees for the following: ... theatres, theatrical
performances, cinematographs, public exhibitions, circuses and all other performances and places
of amusements ....") the least doubt cannot be entertained as to the validity of a measure prohibiting
a proprietor, lessee or operator of an amusement place to admit two or more persons with only one
admission ticket, not only in the interest of preventing fraud insofar as municipal taxes are concerned
but also in accordance with public health, public safety and the general welfare. (Cf. People v. Chan,
65 Phil. 611 [1938]). An American Supreme Court decision, Western Turf Association v. Greenberg,
(204 US 359 [1907] the opinion being penned by Justice Harlan is equally illuminating: 'The statute
is only a regulation of places of public entertainment and amusement upon terms of equal and exact
justice to everyone holding a ticket of admission, and who is not, at the time, under the influence of
liquor, or boisterous in conduct, or of lewd and immoral character. .... Such a regulation, in itself just,
is likewise promotive of peace and good order among those who attend places of public
entertainment and amusement. It is neither an arbitrary exertion of the state's inherent or
governmental power, nor a violation of any right secured by the constitution of the United States. (at
pp. 363-364).
The City of Butuan tries to justify the challenged ordinance by invoking police power. The invocation
is improper. The definitions of police power, including its exercise based on the general welfare
clause, are emphasized to show that the respondents' arguments have no merit
Police power is inherent in the State but not in municipal corporations. For a municipal corporation to
exercise police power, there must be a legislative grant which necessarily also sets the limits for the
exercise of the power.
In the Philippines, the grant of authority to the municipality to exercise police power is embodied in
Section 2238 of the Revised Administrative Code, otherwise known as the General Welfare Clause.
Chartered cities are granted similar authority in their respective charters

The general welfare clause has two branches. The first authorizes the municipal council to enact
such ordinances and make such regulations not repugnant to law, as may be necessary to carry into
effect and discharge the powers and duties conferred upon the municipal council by law. The second
branch authorizes the municipality to enact such ordinances as may be necessary and proper for the
health and safety, promote the prosperity, improve the morals, peace, good order, comfort, and
convenience of the municipality and inhabitants thereof, and for the protection of property therein.
(U.S. v. Salaveria 39 Phil. 103).
This Court has generally been liberal in sustaining municipal action based on the general welfare
clause. In the case before us, however, there appears to be no basis for sustaining the ordinance
even on a generous interpretation of the general welfare clause.

G.R. No. 111097 July 20, 1994

MAYOR PABLO P. MAGTAJAS & THE CITY OF CAGAYAN DE ORO, petitioners,
vs.
PRYCE PROPERTIES CORPORATION, INC. & PHILIPPINE AMUSEMENT AND GAMING
CORPORATION,respondents.
Aquilino G. Pimentel, Jr. and Associates for petitioners.
R.R. Torralba & Associates for private respondent.

CRUZ, J.:
There was instant opposition when PAGCOR announced the opening of a casino in Cagayan de Oro
City. Civic organizations angrily denounced the project. The religious elements echoed the objection
and so did the women's groups and the youth. Demonstrations were led by the mayor and the city
legislators. The media trumpeted the protest, describing the casino as an affront to the welfare of the
city.
The trouble arose when in 1992, flush with its tremendous success in several cities, PAGCOR
decided to expand its operations to Cagayan de Oro City. To this end, it leased a portion of a building
belonging to Pryce Properties Corporation, Inc., one of the herein private respondents, renovated
and equipped the same, and prepared to inaugurate its casino there during the Christmas season.
The reaction of the Sangguniang Panlungsod of Cagayan de Oro City was swift and hostile. On
December 7, 1992, it enacted Ordinance No. 3353 reading as follows:
ORDINANCE NO. 3353
AN ORDINANCE PROHIBITING THE ISSUANCE OF BUSINESS PERMIT AND CANCELLING
EXISTING BUSINESS PERMIT TO ANY ESTABLISHMENT FOR THE USING AND ALLOWING TO
BE USED ITS PREMISES OR PORTION THEREOF FOR THE OPERATION OF CASINO.

BE IT ORDAINED by the Sangguniang Panlungsod of the City of Cagayan de Oro, in session

assembled that:
Sec. 1. That pursuant to the policy of the city banning the operation of casino within its territorial
jurisdiction, no business permit shall be issued to any person, partnership or corporation for the
operation of casino within the city limits.
Sec. 2. That it shall be a violation of existing business permit by any persons, partnership or
corporation to use its business establishment or portion thereof, or allow the use thereof by others
for casino operation and other gambling activities.
Sec. 3. PENALTIES. Any violation of such existing business permit as defined in the preceding
section shall suffer the following penalties, to wit:
a) Suspension of the business permit for sixty (60) days for the first offense and a fine of
P1,000.00/day
b) Suspension of the business permit for Six (6) months for the second offense, and a fine of
P3,000.00/day
c) Permanent revocation of the business permit and imprisonment of One (1) year, for the third and
subsequent offenses.
Sec. 4. This Ordinance shall take effect ten (10) days from publication thereof.
Nor was this all. On January 4, 1993, it adopted a sterner Ordinance No. 3375-93 reading as follows:
ORDINANCE NO. 3375-93
AN ORDINANCE PROHIBITING THE OPERATION OF CASINO AND PROVIDING PENALTY FOR
VIOLATION THEREFOR.
WHEREAS, the City Council established a policy as early as 1990 against CASINO under its
Resolution No. 2295;
WHEREAS, on October 14, 1992, the City Council passed another Resolution No. 2673, reiterating
its policy against the establishment of CASINO;
WHEREAS, subsequently, thereafter, it likewise passed Ordinance No. 3353, prohibiting the
issuance of Business Permit and to cancel existing Business Permit to any establishment for the
using and allowing to be used its premises or portion thereof for the operation of CASINO;
WHEREAS, under Art. 3, section 458, No. (4), sub paragraph VI of the Local Government Code of
1991 (Rep. Act 7160) and under Art. 99, No. (4), Paragraph VI of the implementing rules of the Local
Government Code, the City Council as the Legislative Body shall enact measure to suppress any
activity inimical to public morals and general welfare of the people and/or regulate or prohibit such
activity pertaining to amusement or entertainment in order to protect social and moral welfare of the
community;
NOW THEREFORE,

BE IT ORDAINED by the City Council in session duly assembled that:

Sec. 1. The operation of gambling CASINO in the City of Cagayan de Oro is hereby prohibited.
Sec. 2. Any violation of this Ordinance shall be subject to the following penalties:
a) Administrative fine of P5,000.00 shall be imposed against the proprietor, partnership or
corporation undertaking the operation, conduct, maintenance of gambling CASINO in the City and
closure thereof;
b) Imprisonment of not less than six (6) months nor more than one (1) year or a fine in the amount of
P5,000.00 or both at the discretion of the court against the manager, supervisor, and/or any person
responsible in the establishment, conduct and maintenance of gambling CASINO.
Sec. 3. This Ordinance shall take effect ten (10) days after its publication in a local newspaper of
general circulation.
Pryce assailed the ordinances before the Court of Appeals, where it was joined by PAGCOR as
intervenor and supplemental petitioner. Their challenge succeeded. On March 31, 1993, the Court of
Appeals declared the ordinances invalid and issued the writ prayed for to prohibit their
enforcement. 1 Reconsideration of this decision was denied on July 13, 1993. 2
Cagayan de Oro City and its mayor are now before us in this petition for review under Rule 45 of the
Rules of Court. 3 They aver that the respondent Court of Appeals erred in holding that:
1. Under existing laws, the Sangguniang Panlungsod of the City of Cagayan de Oro does not have
the power and authority to prohibit the establishment and operation of a PAGCOR gambling casino
within the City's territorial limits.
2. The phrase "gambling and other prohibited games of chance" found in Sec. 458, par. (a), sub-par.
(1) (v) of R.A. 7160 could only mean "illegal gambling."
3. The questioned Ordinances in effect annul P.D. 1869 and are therefore invalid on that point.
4. The questioned Ordinances are discriminatory to casino and partial to cockfighting and are
therefore invalid on that point.
5. The questioned Ordinances are not reasonable, not consonant with the general powers and
purposes of the instrumentality concerned and inconsistent with the laws or policy of the State.
6. It had no option but to follow the ruling in the case of Basco, et al. v. PAGCOR, G.R. No. 91649,
May 14, 1991, 197 SCRA 53 in disposing of the issues presented in this present case.
PAGCOR is a corporation created directly by P.D. 1869 to help centralize and regulate all games of
chance, including casinos on land and sea within the territorial jurisdiction of the Philippines.
In Basco v. Philippine Amusements and Gaming Corporation, 4 this Court sustained the
constitutionality of the decree and even cited the benefits of the entity to the national economy as the third
highest revenue-earner in the government, next only to the BIR and the Bureau of Customs.

Cagayan de Oro City, like other local political subdivisions, is empowered to enact ordinances for the
purposes indicated in the Local Government Code. It is expressly vested with the police power under
what is known as the General Welfare Clause now embodied in Section 16 as follows:
Sec. 16. General Welfare. Every local government unit shall exercise the powers expressly
granted, those necessarily implied therefrom, as well as powers necessary, appropriate, or incidental
for its efficient and effective governance, and those which are essential to the promotion of the
general welfare. Within their respective territorial jurisdictions, local government units shall ensure
and support, among other things, the preservation and enrichment of culture, promote health and
safety, enhance the right of the people to a balanced ecology, encourage and support the
development of appropriate and self-reliant scientific and technological capabilities, improve public
morals, enhance economic prosperity and social justice, promote full employment among their
residents, maintain peace and order, and preserve the comfort and convenience of their inhabitants.
In addition, Section 458 of the said Code specifically declares that:
Sec. 458. Powers, Duties, Functions and Compensation. (a) The Sangguniang Panlungsod, as
the legislative body of the city, shall enact ordinances, approve resolutions and appropriate funds for
the general welfare of the city and its inhabitants pursuant to Section 16 of this Code and in the
proper exercise of the corporate powers of the city as provided for under Section 22 of this Code,
and shall:
(1) Approve ordinances and pass resolutions necessary for an efficient and effective city
government, and in this connection, shall:
xxx xxx xxx
(v) Enact ordinances intended to prevent, suppress and impose appropriate penalties for habitual
drunkenness in public places, vagrancy, mendicancy, prostitution, establishment and maintenance of
houses of ill repute,gambling and other prohibited games of chance, fraudulent devices and ways to
obtain money or property, drug addiction, maintenance of drug dens, drug pushing, juvenile
delinquency, the printing, distribution or exhibition of obscene or pornographic materials or
publications, and such other activities inimical to the welfare and morals of the inhabitants of the city;
This section also authorizes the local government units to regulate properties and businesses within
their territorial limits in the interest of the general welfare. 5
The petitioners argue that by virtue of these provisions, the Sangguniang Panlungsod may prohibit
the operation of casinos because they involve games of chance, which are detrimental to the people.
Gambling is not allowed by general law and even by the Constitution itself. The legislative power
conferred upon local government units may be exercised over all kinds of gambling and not only
over "illegal gambling" as the respondents erroneously argue. Even if the operation of casinos may
have been permitted under P.D. 1869, the government of Cagayan de Oro City has the authority to
prohibit them within its territory pursuant to the authority entrusted to it by the Local Government
Code.
It is submitted that this interpretation is consonant with the policy of local autonomy as mandated in
Article II, Section 25, and Article X of the Constitution, as well as various other provisions therein
seeking to strengthen the character of the nation. In giving the local government units the power to

prevent or suppress gambling and other social problems, the Local Government Code has
recognized the competence of such communities to determine and adopt the measures best
expected to promote the general welfare of their inhabitants in line with the policies of the State.
The petitioners also stress that when the Code expressly authorized the local government units to
prevent and suppress gambling and other prohibited games of chance, like craps, baccarat,
blackjack and roulette, it meant allforms of gambling without distinction. Ubi lex non distinguit, nec
nos distinguere debemos. 6 Otherwise, it would have expressly excluded from the scope of their power
casinos and other forms of gambling authorized by special law, as it could have easily done. The fact that
it did not do so simply means that the local government units are permitted to prohibit all kinds of
gambling within their territories, including the operation of casinos.
The adoption of the Local Government Code, it is pointed out, had the effect of modifying the charter
of the PAGCOR. The Code is not only a later enactment than P.D. 1869 and so is deemed to prevail
in case of inconsistencies between them. More than this, the powers of the PAGCOR under the
decree are expressly discontinued by the Code insofar as they do not conform to its philosophy and
provisions, pursuant to Par. (f) of its repealing clause reading as follows:
(f) All general and special laws, acts, city charters, decrees, executive orders, proclamations and
administrative regulations, or part or parts thereof which are inconsistent with any of the provisions
of this Code are hereby repealed or modified accordingly.
It is also maintained that assuming there is doubt regarding the effect of the Local Government Code
on P.D. 1869, the doubt must be resolved in favor of the petitioners, in accordance with the direction
in the Code calling for its liberal interpretation in favor of the local government units. Section 5 of the
Code specifically provides:
Sec. 5. Rules of Interpretation. In the interpretation of the provisions of this Code, the following
rules shall apply:
(a) Any provision on a power of a local government unit shall be liberally interpreted in its favor, and
in case of doubt, any question thereon shall be resolved in favor of devolution of powers and of the
lower local government unit. Any fair and reasonable doubt as to the existence of the power shall be
interpreted in favor of the local government unit concerned;
xxx xxx xxx
(c) The general welfare provisions in this Code shall be liberally interpreted to give more powers to
local government units in accelerating economic development and upgrading the quality of life for
the people in the community; . . . (Emphasis supplied.)
Finally, the petitioners also attack gambling as intrinsically harmful and cite various provisions of the
Constitution and several decisions of this Court expressive of the general and official disapprobation
of the vice. They invoke the State policies on the family and the proper upbringing of the youth and,
as might be expected, call attention to the old case of U.S. v. Salaveria, 7 which sustained a municipal
ordinance prohibiting the playing of panguingue. The petitioners decry the immorality of gambling. They
also impugn the wisdom of P.D. 1869 (which they describe as "a martial law instrument") in creating
PAGCOR and authorizing it to operate casinos "on land and sea within the territorial jurisdiction of the
Philippines."

This is the opportune time to stress an important point.

The morality of gambling is not a justiciable issue. Gambling is not illegal per se. While it is generally
considered inimical to the interests of the people, there is nothing in the Constitution categorically
proscribing or penalizing gambling or, for that matter, even mentioning it at all. It is left to Congress
to deal with the activity as it sees fit. In the exercise of its own discretion, the legislature may prohibit
gambling altogether or allow it without limitation or it may prohibit some forms of gambling and allow
others for whatever reasons it may consider sufficient. Thus, it has prohibited jueteng and monte but
permits lotteries, cockfighting and horse-racing. In making such choices, Congress has consulted its
own wisdom, which this Court has no authority to review, much less reverse. Well has it been said
that courts do not sit to resolve the merits of conflicting theories. 8 That is the prerogative of the
political departments. It is settled that questions regarding the wisdom, morality, or practicibility of statutes
are not addressed to the judiciary but may be resolved only by the legislative and executive departments,
to which the function belongs in our scheme of government. That function is exclusive. Whichever way
these branches decide, they are answerable only to their own conscience and the constituents who will
ultimately judge their acts, and not to the courts of justice.
The only question we can and shall resolve in this petition is the validity of Ordinance No. 3355 and
Ordinance No. 3375-93 as enacted by the Sangguniang Panlungsod of Cagayan de Oro City. And
we shall do so only by the criteria laid down by law and not by our own convictions on the propriety
of gambling.
The tests of a valid ordinance are well established. A long line of decisions 9 has held that to be valid,
an ordinance must conform to the following substantive requirements:
1) It must not contravene the constitution or any statute.
2) It must not be unfair or oppressive.
3) It must not be partial or discriminatory.
4) It must not prohibit but may regulate trade.
5) It must be general and consistent with public policy.
6) It must not be unreasonable.
We begin by observing that under Sec. 458 of the Local Government Code, local government units
are authorized to prevent or suppress, among others, "gambling and other prohibited games of
chance." Obviously, this provision excludes games of chance which are not prohibited but are in fact
permitted by law. The petitioners are less than accurate in claiming that the Code could have
excluded such games of chance but did not. In fact it does. The language of the section is clear and
unmistakable. Under the rule of noscitur a sociis, a word or phrase should be interpreted in relation
to, or given the same meaning of, words with which it is associated. Accordingly, we conclude that
since the word "gambling" is associated with "and other prohibited games of chance," the word
should be read as referring to only illegal gambling which, like the other prohibited games of chance,
must be prevented or suppressed.

We could stop here as this interpretation should settle the problem quite conclusively. But we will
not. The vigorous efforts of the petitioners on behalf of the inhabitants of Cagayan de Oro City, and
the earnestness of their advocacy, deserve more than short shrift from this Court.
The apparent flaw in the ordinances in question is that they contravene P.D. 1869 and the public
policy embodied therein insofar as they prevent PAGCOR from exercising the power conferred on it
to operate a casino in Cagayan de Oro City. The petitioners have an ingenious answer to this
misgiving. They deny that it is the ordinances that have changed P.D. 1869 for an ordinance
admittedly cannot prevail against a statute. Their theory is that the change has been made by the
Local Government Code itself, which was also enacted by the national lawmaking authority. In their
view, the decree has been, not really repealed by the Code, but merely "modified pro tanto" in the
sense that PAGCOR cannot now operate a casino over the objection of the local government unit
concerned. This modification of P.D. 1869 by the Local Government Code is permissible because
one law can change or repeal another law.
It seems to us that the petitioners are playing with words. While insisting that the decree has only
been "modifiedpro tanto," they are actually arguing that it is already dead, repealed and useless for
all intents and purposes because the Code has shorn PAGCOR of all power to centralize and
regulate casinos. Strictly speaking, its operations may now be not only prohibited by the local
government unit; in fact, the prohibition is not only discretionary but mandated by Section 458 of the
Code if the word "shall" as used therein is to be given its accepted meaning. Local government units
have now no choice but to prevent and suppress gambling, which in the petitioners' view includes
both legal and illegal gambling. Under this construction, PAGCOR will have no more games of
chance to regulate or centralize as they must all be prohibited by the local government units
pursuant to the mandatory duty imposed upon them by the Code. In this situation, PAGCOR cannot
continue to exist except only as a toothless tiger or a white elephant and will no longer be able to
exercise its powers as a prime source of government revenue through the operation of casinos.
It is noteworthy that the petitioners have cited only Par. (f) of the repealing clause, conveniently
discarding the rest of the provision which painstakingly mentions the specific laws or the parts
thereof which are repealed (or modified) by the Code. Significantly, P.D. 1869 is not one of them. A
reading of the entire repealing clause, which is reproduced below, will disclose the omission:
Sec. 534. Repealing Clause. (a) Batas Pambansa Blg. 337, otherwise known as the "Local
Government Code," Executive Order No. 112 (1987), and Executive Order No. 319 (1988) are
hereby repealed.
(b) Presidential Decree Nos. 684, 1191, 1508 and such other decrees, orders, instructions,
memoranda and issuances related to or concerning the barangay are hereby repealed.
(c) The provisions of Sections 2, 3, and 4 of Republic Act No. 1939 regarding hospital fund; Section
3, a (3) and b (2) of Republic Act. No. 5447 regarding the Special Education Fund; Presidential
Decree No. 144 as amended by Presidential Decree Nos. 559 and 1741; Presidential Decree No.
231 as amended; Presidential Decree No. 436 as amended by Presidential Decree No. 558; and
Presidential Decree Nos. 381, 436, 464, 477, 526, 632, 752, and 1136 are hereby repealed and
rendered of no force and effect.
(d) Presidential Decree No. 1594 is hereby repealed insofar as it governs locally-funded projects.

(e) The following provisions are hereby repealed or amended insofar as they are inconsistent with
the provisions of this Code: Sections 2, 16, and 29 of Presidential Decree No. 704; Sections 12 of
Presidential Decree No. 87, as amended; Sections 52, 53, 66, 67, 68, 69, 70, 71, 72, 73, and 74 of
Presidential Decree No. 463, as amended; and Section 16 of Presidential Decree No. 972, as
amended, and
(f) All general and special laws, acts, city charters, decrees, executive orders, proclamations and
administrative regulations, or part or parts thereof which are inconsistent with any of the provisions
of this Code are hereby repealed or modified accordingly.
Furthermore, it is a familiar rule that implied repeals are not lightly presumed in the absence of a
clear and unmistakable showing of such intention. In Lichauco & Co. v. Apostol, 10 this Court
explained:
The cases relating to the subject of repeal by implication all proceed on the assumption that if the act
of later date clearly reveals an intention on the part of the lawmaking power to abrogate the prior law,
this intention must be given effect; but there must always be a sufficient revelation of this intention,
and it has become an unbending rule of statutory construction that the intention to repeal a former
law will not be imputed to the Legislature when it appears that the two statutes, or provisions, with
reference to which the question arises bear to each other the relation of general to special.
There is no sufficient indication of an implied repeal of P.D. 1869. On the contrary, as the private
respondent points out, PAGCOR is mentioned as the source of funding in two later enactments of
Congress, to wit, R.A. 7309, creating a Board of Claims under the Department of Justice for the
benefit of victims of unjust punishment or detention or of violent crimes, and R.A. 7648, providing for
measures for the solution of the power crisis. PAGCOR revenues are tapped by these two statutes.
This would show that the PAGCOR charter has not been repealed by the Local Government Code
but has in fact been improved as it were to make the entity more responsive to the fiscal problems of
the government.
It is a canon of legal hermeneutics that instead of pitting one statute against another in an inevitably
destructive confrontation, courts must exert every effort to reconcile them, remembering that both
laws deserve a becoming respect as the handiwork of a coordinate branch of the government. On
the assumption of a conflict between P.D. 1869 and the Code, the proper action is not to uphold one
and annul the other but to give effect to both by harmonizing them if possible. This is possible in the
case before us. The proper resolution of the problem at hand is to hold that under the Local
Government Code, local government units may (and indeed must) prevent and suppress all kinds of
gambling within their territories except only those allowed by statutes like P.D. 1869. The exception
reserved in such laws must be read into the Code, to make both the Code and such laws equally
effective and mutually complementary.
This approach would also affirm that there are indeed two kinds of gambling, to wit, the illegal and
those authorized by law. Legalized gambling is not a modern concept; it is probably as old as illegal
gambling, if not indeed more so. The petitioners' suggestion that the Code authorizes them to
prohibit all kinds of gambling would erase the distinction between these two forms of gambling
without a clear indication that this is the will of the legislature. Plausibly, following this theory, the City
of Manila could, by mere ordinance, prohibit the Philippine Charity Sweepstakes Office from

conducting a lottery as authorized by R.A. 1169 and B.P. 42 or stop the races at the San Lazaro
Hippodrome as authorized by R.A. 309 and R.A. 983.
In light of all the above considerations, we see no way of arriving at the conclusion urged on us by
the petitioners that the ordinances in question are valid. On the contrary, we find that the ordinances
violate P.D. 1869, which has the character and force of a statute, as well as the public policy
expressed in the decree allowing the playing of certain games of chance despite the prohibition of
gambling in general.
The rationale of the requirement that the ordinances should not contravene a statute is obvious.
Municipal governments are only agents of the national government. Local councils exercise only
delegated legislative powers conferred on them by Congress as the national lawmaking body. The
delegate cannot be superior to the principal or exercise powers higher than those of the latter. It is a
heresy to suggest that the local government units can undo the acts of Congress, from which they
have derived their power in the first place, and negate by mere ordinance the mandate of the statute.
Municipal corporations owe their origin to, and derive their powers and rights wholly from the
legislature. It breathes into them the breath of life, without which they cannot exist. As it creates, so it
may destroy. As it may destroy, it may abridge and control. Unless there is some constitutional
limitation on the right, the legislature might, by a single act, and if we can suppose it capable of so
great a folly and so great a wrong, sweep from existence all of the municipal corporations in the
State, and the corporation could not prevent it. We know of no limitation on the right so far as to the
corporation themselves are concerned. They are, so to phrase it, the mere tenants at will of the
legislature. 11
This basic relationship between the national legislature and the local government units has not been
enfeebled by the new provisions in the Constitution strengthening the policy of local autonomy.
Without meaning to detract from that policy, we here confirm that Congress retains control of the
local government units although in significantly reduced degree now than under our previous
Constitutions. The power to create still includes the power to destroy. The power to grant still
includes the power to withhold or recall. True, there are certain notable innovations in the
Constitution, like the direct conferment on the local government units of the power to tax, 12which
cannot now be withdrawn by mere statute. By and large, however, the national legislature is still the
principal of the local government units, which cannot defy its will or modify or violate it.
The Court understands and admires the concern of the petitioners for the welfare of their
constituents and their apprehensions that the welfare of Cagayan de Oro City will be endangered by
the opening of the casino. We share the view that "the hope of large or easy gain, obtained without
special effort, turns the head of the workman" 13 and that "habitual gambling is a cause of laziness and
ruin." 14 In People v. Gorostiza, 15 we declared: "The social scourge of gambling must be stamped out. The
laws against gambling must be enforced to the limit." George Washington called gambling "the child of
avarice, the brother of iniquity and the father of mischief." Nevertheless, we must recognize the power of
the legislature to decide, in its own wisdom, to legalize certain forms of gambling, as was done in P.D.
1869 and impliedly affirmed in the Local Government Code. That decision can be revoked by this Court
only if it contravenes the Constitution as the touchstone of all official acts. We do not find such
contravention here.

We hold that the power of PAGCOR to centralize and regulate all games of chance, including
casinos on land and sea within the territorial jurisdiction of the Philippines, remains unimpaired. P.D.
1869 has not been modified by the Local Government Code, which empowers the local government
units to prevent or suppress only those forms of gambling prohibited by law.
Casino gambling is authorized by P.D. 1869. This decree has the status of a statute that cannot be
amended or nullified by a mere ordinance. Hence, it was not competent for the Sangguniang
Panlungsod of Cagayan de Oro City to enact Ordinance No. 3353 prohibiting the use of buildings for
the operation of a casino and Ordinance No. 3375-93 prohibiting the operation of casinos. For all
their praiseworthy motives, these ordinances are contrary to P.D. 1869 and the public policy
announced therein and are therefore ultra vires and void.
WHEREFORE, the petition is DENIED and the challenged decision of the respondent Court of
Appeals is AFFIRMED, with costs against the petitioners. It is so ordered.
Narvasa, C.J., Feliciano, Bidin, Regalado, Romero, Bellosillo, Melo, Quiason, Puno, Vitug, Kapunan
and Mendoza, JJ., concur.

Separate Opinions

PADILLA, J., concurring:

I concur with the majority holding that the city ordinances in question cannot modify much less
repeal PAGCOR's general authority to establish and maintain gambling casinos anywhere in the
Philippines under Presidential Decree No. 1869.
In Basco v. Philippine Amusement and Gaming Corporation (PAGCOR), 197 SCRA 52, I stated in a
separate opinion that:
. . . I agree with the decision insofar as it holds that the prohibition, control, and regulation of the
entire activity known as gambling properly pertain to "state policy". It is, therefore, the political
departments of government, namely, the legislative and the executive that should decide on what
government should do in the entire area of gambling, and assume full responsibility to the people for
such policy." (Emphasis supplied)
However, despite the legality of the opening and operation of a casino in Cagayan de Oro City by
respondent PAGCOR, I wish to reiterate my view that gambling in any form runs counter to the
government's own efforts to re-establish and resurrect the Filipino moral character which is generally
perceived to be in a state of continuing erosion.
It is in the light of this alarming perspective that I call upon government to carefully weigh the
advantages and disadvantages of setting up more gambling facilities in the country.

That the PAGCOR contributes greatly to the coffers of the government is not enough reason for
setting up more gambling casinos because, undoubtedly, this will not help improve, but will cause a
further deterioration in the Filipino moral character.
It is worth remembering in this regard that, 1) what is legal is not always moral and 2) the ends do
not always justify the means.
As in Basco, I can easily visualize prostitution at par with gambling. And yet, legalization of the
former will not render it any less reprehensible even if substantial revenue for the government can
be realized from it. The same is true of gambling.
In the present case, it is my considered view that the national government (through PAGCOR)
should re-examine and re-evaluate its decision of imposing the gambling casino on the residents of
Cagayan de Oro City; for it is abundantly clear that public opinion in the city is very much against it,
and again the question must be seriously deliberated: will the prospects of revenue to be realized
from the casino outweigh the further destruction of the Filipino sense of values?

DAVIDE, JR., J., concurring:

While I concur in part with the majority, I wish, however, to express my views on certain aspects of
this case.
I.
It must at once be noted that private respondent Pryce Properties Corporation (PRYCE) directly filed
with the Court of Appeals its so-called petition for prohibition, thereby invoking the said court's
original jurisdiction to issue writs of prohibition under Section 9(1) of B.P. Blg. 129. As I see it,
however, the principal cause of action therein is one for declaratory relief: to declare null and
unconstitutional for, inter alia, having been enacted without or in excess of jurisdiction, for
impairing the obligation of contracts, and for being inconsistent with public policy the challenged
ordinances enacted by the Sangguniang Panglungsod of the City of Cagayan de Oro. The
intervention therein of public respondent Philippine Amusement and Gaming Corporation (PAGCOR)
further underscores the "declaratory relief" nature of the action. PAGCOR assails the ordinances for
being contrary to the non-impairment and equal protection clauses of the Constitution, violative of
the Local Government Code, and against the State's national policy declared in P.D. No. 1869.
Accordingly, the Court of Appeals does not have jurisdiction over the nature of the action. Even
assuming arguendo that the case is one for prohibition, then, under this Court's established policy
relative to the hierarchy of courts, the petition should have been filed with the Regional Trial Court of
Cagayan de Oro City. I find no special or compelling reason why it was not filed with the said court. I
do not wish to entertain the thought that PRYCE doubted a favorable verdict therefrom, in which
case the filing of the petition with the Court of Appeals may have been impelled by tactical
considerations. A dismissal of the petition by the Court of Appeals would have been in order
pursuant to our decisions in People vs. Cuaresma (172 SCRA 415, [1989]) and Defensor-Santiago
vs. Vasquez (217 SCRA 633 [1993]). In Cuaresma, this Court stated:
A last word. This court's original jurisdiction to issue writs of certiorari (as well as
prohibition,mandamus, quo warranto, habeas corpus and injunction) is not exclusive. It is shared by

this Court with Regional Trial Courts (formerly Courts of First Instance), which may issue the writ,
enforceable in any part of their respective regions. It is also shared by this court, and by the
Regional Trial Court, with the Court of Appeals (formerly, Intermediate Appellate Court), although
prior to the effectivity ofBatas Pambansa Bilang 129 on August 14, 1981, the latter's competence to
issue the extraordinary writs was restricted by those "in aid of its appellate jurisdiction." This
concurrence of jurisdiction is not, however, to be taken as according to parties seeking any of the
writs an absolute, unrestrained freedom of choice of the court to which application therefor will be
directed. There is after all a hierarchy of courts. That hierarchy is determinative of the revenue of
appeals, and should also serve as a general determinant of the appropriate forum for petitions for
the extraordinary writs. A becoming regard for that judicial hierarchy most certainly indicates that
petitions for the issuance of extraordinary writs against first level ("inferior") courts should be filed
with the Regional Trial Court, and those against the latter, with the Court of Appeals. A direct
invocation of the Supreme Court's original jurisdiction to issue these writs should be allowed only
when there are special and important reasons therefor, clearly and specifically set out in the petition.
This is established policy. It is a policy that is necessary to prevent inordinate demands upon the
Court's time and attention which are better devoted to those matters within its exclusive jurisdiction,
and to prevent further over-crowding of the Court's docket. Indeed, the removal of the restriction of
the jurisdiction of the Court of Appeals in this regard, supra resulting from the deletion of the
qualifying phrase, "in aid of its appellate jurisdiction" was evidently intended precisely to relieve
this Court pro tanto of the burden of dealing with applications for extraordinary writs which, but for
the expansion of the Appellate Court's corresponding jurisdiction, would have had to be filed with it.
(citations omitted)
And in Vasquez, this Court said:
One final observation. We discern in the proceedings in this case a propensity on the part of
petitioner, and, for that matter, the same may be said of a number of litigants who initiate recourses
before us, to disregard the hierarchy of courts in our judicial system by seeking relief directly from
this Court despite the fact that the same is available in the lower courts in the exercise of their
original or concurrent jurisdiction, or is even mandated by law to be sought therein. This practice
must be stopped, not only because of the imposition upon the previous time of this Court but also
because of the inevitable and resultant delay, intended or otherwise, in the adjudication of the case
which often has to be remanded or referred to the lower court as the proper forum under the rules of
procedure, or as better equipped to resolve the issues since this Court is not a trier of facts. We,
therefore, reiterate the judicial policy that this Court will not entertain direct resort to it unless the
redress desired cannot be obtained in the appropriate courts or where exceptional and compelling
circumstances justify availment of a remedy within and calling for the exercise of our primary
jurisdiction.
II.
The challenged ordinances are (a) Ordinance No. 3353 entitled, "An Ordinance Prohibiting the
Issuance of Business Permit and Canceling Existing Business Permit To Any Establishment for the
Using and Allowing to be Used Its Premises or Portion Thereof for the Operation of Casino," and (b)
Ordinance No. 3375-93 entitled, "An Ordinance Prohibiting the Operation of Casino and Providing
Penalty for Violation Therefor." They were enacted to implement Resolution No. 2295 entitled,
"Resolution Declaring As a Matter of Policy to Prohibit and/or Not to Allow the Establishment of the

Gambling Casino in the City of Cagayan de Oro," which was promulgated on 19 November 1990
nearly two years before PRYCE and PAGCOR entered into a contract of lease under which the latter
leased a portion of the former's Pryce Plaza Hotel for the operation of a gambling casino which
resolution was vigorously reiterated in Resolution No. 2673 of 19 October 1992.
The challenged ordinances were enacted pursuant to the Sangguniang Panglungsod's express
powers conferred by Section 458, paragraph (a), subparagraphs (1)-(v), (3)-(ii), and (4)-(i), (iv), and
(vii), Local Government Code, and pursuant to its implied power under Section 16 thereof (the
general welfare clause) which reads:
Sec. 16. General Welfare. Every local government unit shall exercise the powers expressly
granted, those necessarily implied therefrom, as well as powers necessary, appropriate, or incidental
for its efficient and effective governance, and those which are essential to the promotion of the
general welfare. Within their respective territorial jurisdictions, local government units shall ensure
and support, among other things, the preservation and enrichment of culture, promote health and
safety, enhance the right of the people to a balanced ecology, encourage and support the
development of appropriate and self-reliant scientific and technological capabilities, improve public
morals, enhance economic prosperity and social justice, promote full employment among their
residents, maintain peace and order, and preserve the comfort and convenience of their inhabitants.
The issue that necessarily arises is whether in granting local governments (such as the City of
Cagayan de Oro) the above powers and functions, the Local Government Code has, pro tanto,
repealed P.D. No. 1869 insofar as PAGCOR's general authority to establish and maintain gambling
casinos anywhere in the Philippines is concerned.
I join the majority in holding that the ordinances cannot repeal P.D. No. 1869.
III.
The nullification by the Court of Appeals of the challenged ordinances as unconstitutional primarily
because it is in contravention to P.D. No. 1869 is unwarranted. A contravention of a law is not
necessarily a contravention of the constitution. In any case, the ordinances can still stand even if
they be conceded as offending P.D. No. 1869. They can be reconciled, which is not impossible to do.
So reconciled, the ordinances should be construed as not applying to PAGCOR.
IV.
From the pleadings, it is obvious that the government and the people of Cagayan de Oro City are,
for obvious reasons, strongly against the opening of the gambling casino in their city. Gambling,
even if legalized, would be inimical to the general welfare of the inhabitants of the City, or of any
place for that matter. The PAGCOR, as a government-owned corporation, must consider the valid
concerns of the people of the City of Cagayan de Oro and should not impose its will upon them in an
arbitrary, if not despotic, manner.

# Separate Opinions

PADILLA, J., concurring:

I concur with the majority holding that the city ordinances in question cannot modify much less
repeal PAGCOR's general authority to establish and maintain gambling casinos anywhere in the
Philippines under Presidential Decree No. 1869.
In Basco v. Philippine Amusement and Gaming Corporation (PAGCOR), 197 SCRA 52, I stated in a
separate opinion that:
. . . I agree with the decision insofar as it holds that the prohibition, control, and regulation of the
entire activity known as gambling properly pertain to "state policy". It is, therefore, the political
departments of government, namely, the legislative and the executive that should decide on what
government should do in the entire area of gambling, and assume full responsibility to the people for
such policy. (emphasis supplied)
However, despite the legality of the opening and operation of a casino in Cagayan de Oro City by
respondent PAGCOR, I wish to reiterate my view that gambling in any form runs counter to the
government's own efforts to re-establish and resurrect the Filipino moral character which is generally
perceived to be in a state of continuing erosion.
It is in the light of this alarming perspective that I call upon government to carefully weigh the
advantages and disadvantages of setting up more gambling facilities in the country.
That the PAGCOR contributes greatly to the coffers of the government is not enough reason for
setting up more gambling casinos because, undoubtedly, this will not help improve, but will cause a
further deterioration in the Filipino moral character.
It is worth remembering in this regard that, 1) what is legal is not always moral and 2) the ends do
not always justify the means.
As in Basco, I can easily visualize prostitution at par with gambling. And yet, legalization of the
former will not render it any less reprehensible even if substantial revenue for the government can
be realized from it. The same is true of gambling.
In the present case, it is my considered view that the national government (through PAGCOR)
should re-examine and re-evaluate its decision of imposing the gambling casino on the residents of
Cagayan de Oro City; for it is abundantly clear that public opinion in the city is very much against it,
and again the question must be seriously deliberated: will the prospects of revenue to be realized
from the casino outweigh the further destruction of the Filipino sense of values?
DAVIDE, JR., J., concurring:
While I concur in part with the majority, I wish, however, to express my views on certain aspects of
this case.
I.
It must at once be noted that private respondent Pryce Properties Corporation (PRYCE) directly filed
with the Court of Appeals its so-called petition for prohibition, thereby invoking the said court's
original jurisdiction to issue writs of prohibition under Section 9(1) of B.P. Blg. 129. As I see it,

however, the principal cause of action therein is one for declaratory relief: to declare null and
unconstitutional for, inter alia, having been enacted without or in excess of jurisdiction, for
impairing the obligation of contracts, and for being inconsistent with public policy the challenged
ordinances enacted by the Sangguniang Panglungsod of the City of Cagayan de Oro. The
intervention therein of public respondent Philippine Amusement and Gaming Corporation (PAGCOR)
further underscores the "declaratory relief" nature of the action. PAGCOR assails the ordinances for
being contrary to the non-impairment and equal protection clauses of the Constitution, violative of
the Local Government Code, and against the State's national policy declared in P.D. No. 1869.
Accordingly, the Court of Appeals does not have jurisdiction over the nature of the action. Even
assuming arguendo that the case is one for prohibition, then, under this Court's established policy
relative to the hierarchy of courts, the petition should have been filed with the Regional Trial Court of
Cagayan de Oro City. I find no special or compelling reason why it was not filed with the said court. I
do not wish to entertain the thought that PRYCE doubted a favorable verdict therefrom, in which
case the filing of the petition with the Court of Appeals may have been impelled by tactical
considerations. A dismissal of the petition by the Court of Appeals would have been in order
pursuant to our decisions in People vs. Cuaresma (172 SCRA 415, [1989]) and Defensor-Santiago
vs. Vasquez (217 SCRA 633 [1993]). In Cuaresma, this Court stated:
A last word. This court's original jurisdiction to issue writs of certiorari (as well as
prohibition,mandamus, quo warranto, habeas corpus and injunction) is not exclusive. It is shared by
this Court with Regional Trial Courts (formerly Courts of First Instance), which may issue the writ,
enforceable in any part of their respective regions. It is also shared by this court, and by the
Regional Trial Court, with the Court of Appeals (formerly, Intermediate Appellate Court), although
prior to the effectivity ofBatas Pambansa Bilang 129 on August 14, 1981, the latter's competence to
issue the extraordinary writs was restricted by those "in aid of its appellate jurisdiction." This
concurrence of jurisdiction is not, however, to be taken as according to parties seeking any of the
writs an absolute, unrestrained freedom of choice of the court to which application therefor will be
directed. There is after all a hierarchy of courts. That hierarchy is determinative of the revenue of
appeals, and should also serve as a general determinant of the appropriate forum for petitions for
the extraordinary writs. A becoming regard for that judicial hierarchy most certainly indicates that
petitions for the issuance of extraordinary writs against first level ("inferior") courts should be filed
with the Regional Trial Court, and those against the latter, with the Court of Appeals. A direct
invocation of the Supreme Court's original jurisdiction to issue these writs should be allowed only
when there are special and important reasons therefor, clearly and specifically set out in the petition.
This is established policy. It is a policy that is necessary to prevent inordinate demands upon the
Court's time and attention which are better devoted to those matters within its exclusive jurisdiction,
and to prevent further over-crowding of the Court's docket. Indeed, the removal of the restriction of
the jurisdiction of the Court of Appeals in this regard, supra resulting from the deletion of the
qualifying phrase, "in aid of its appellate jurisdiction" was evidently intended precisely to relieve
this Court pro tanto of the burden of dealing with applications for extraordinary writs which, but for
the expansion of the Appellate Court's corresponding jurisdiction, would have had to be filed with it.
(citations omitted)
And in Vasquez, this Court said:
One final observation. We discern in the proceedings in this case a propensity on the part of
petitioner, and, for that matter, the same may be said of a number of litigants who initiate recourses

before us, to disregard the hierarchy of courts in our judicial system by seeking relief directly from
this Court despite the fact that the same is available in the lower courts in the exercise of their
original or concurrent jurisdiction, or is even mandated by law to be sought therein. This practice
must be stopped, not only because of the imposition upon the previous time of this Court but also
because of the inevitable and resultant delay, intended or otherwise, in the adjudication of the case
which often has to be remanded or referred to the lower court as the proper forum under the rules of
procedure, or as better equipped to resolve the issues since this Court is not a trier of facts. We,
therefore, reiterate the judicial policy that this Court will not entertain direct resort to it unless the
redress desired cannot be obtained in the appropriate courts or where exceptional and compelling
circumstances justify availment of a remedy within and calling for the exercise of our primary
jurisdiction.
II.
The challenged ordinances are (a) Ordinance No. 3353 entitled, "An Ordinance Prohibiting the
Issuance of Business Permit and Canceling Existing Business Permit To Any Establishment for the
Using and Allowing to be Used Its Premises or Portion Thereof for the Operation of Casino," and (b)
Ordinance No. 3375-93 entitled, "An Ordinance Prohibiting the Operation of Casino and Providing
Penalty for Violation Therefor." They were enacted to implement Resolution No. 2295 entitled,
"Resolution Declaring As a Matter of Policy to Prohibit and/or Not to Allow the Establishment of the
Gambling Casino in the City of Cagayan de Oro," which was promulgated on 19 November 1990
nearly two years before PRYCE and PAGCOR entered into a contract of lease under which the latter
leased a portion of the former's Pryce Plaza Hotel for the operation of a gambling casino which
resolution was vigorously reiterated in Resolution No. 2673 of 19 October 1992.
The challenged ordinances were enacted pursuant to the Sangguniang Panglungsod's express
powers conferred by Section 458, paragraph (a), subparagraphs (1)-(v), (3)-(ii), and (4)-(i), (iv), and
(vii), Local Government Code, and pursuant to its implied power under Section 16 thereof (the
general welfare clause) which reads:
Sec. 16. General Welfare. Every local government unit shall exercise the powers expressly
granted, those necessarily implied therefrom, as well as powers necessary, appropriate, or incidental
for its efficient and effective governance, and those which are essential to the promotion of the
general welfare. Within their respective territorial jurisdictions, local government units shall ensure
and support, among other things, the preservation and enrichment of culture, promote health and
safety, enhance the right of the people to a balanced ecology, encourage and support the
development of appropriate and self-reliant scientific and technological capabilities, improve public
morals, enhance economic prosperity and social justice, promote full employment among their
residents, maintain peace and order, and preserve the comfort and convenience of their inhabitants.
The issue that necessarily arises is whether in granting local governments (such as the City of
Cagayan de Oro) the above powers and functions, the Local Government Code has, pro tanto,
repealed P.D. No. 1869 insofar as PAGCOR's general authority to establish and maintain gambling
casinos anywhere in the Philippines is concerned.
I join the majority in holding that the ordinances cannot repeal P.D. No. 1869.
III.

The nullification by the Court of Appeals of the challenged ordinances as unconstitutional primarily
because it is in contravention to P.D. No. 1869 is unwarranted. A contravention of a law is not
necessarily a contravention of the constitution. In any case, the ordinances can still stand even if
they be conceded as offending P.D. No. 1869. They can be reconciled, which is not impossible to do.
So reconciled, the ordinances should be construed as not applying to PAGCOR.
IV.
From the pleadings, it is obvious that the government and the people of Cagayan de Oro City are,
for obvious reasons, strongly against the opening of the gambling casino in their city. Gambling,
even if legalized, would be inimical to the general welfare of the inhabitants of the City, or of any
place for that matter. The PAGCOR, as a government-owned corporation, must consider the valid
concerns of the people of the City of Cagayan de Oro and should not impose its will upon them in an
arbitrary, if not despotic, manner.

G.R. No. L-12172

August 29, 1958

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
JUAN F. FAJARDO, ET AL., defendants-appellants.
Assistant Solicitor General Esmeraldo Umali and Higinio V. Catalan for appellee.
Prila, Pardalis and Pejo for appellants.
REYES, J. B. L., J.:
Appeal from the decision of the Court of First Instance of Camarines Sur convicting defendantsappellants Juan F. Fajardo and Pedro Babilonia of a violation of Ordinance No. 7, Series of 1950, of
the Municipality of Baao, Camarines Sur, for having constructed without a permit from the municipal
mayor a building that destroys the view of the public plaza.
It appears that on August 15, 1950, during the incumbency of defendant-appellant Juan F. Fajardo
as mayor of the municipality of Baao, Camarines Sur, the municipal council passed the ordinance in
question providing as follows:
SECTION 1. Any person or persons who will construct or repair a building should, before
constructing or repairing, obtain a written permit from the Municipal Mayor.
SEC. 2. A fee of not less than P2.00 should be charged for each building permit and P1.00
for each repair permit issued.
SEC. 3. PENALTY Any violation of the provisions of the above, this ordinance, shall make
the violation liable to pay a fine of not less than P25 nor more than P50 or imprisonment of
not less than 12 days nor more than 24 days or both, at the discretion of the court. If said

building destroys the view of the Public Plaza or occupies any public property, it shall be
removed at the expense of the owner of the building or house.
SEC. 4. EFFECTIVITY This ordinance shall take effect on its approval. (Orig. Recs., P. 3)
Four years later, after the term of appellant Fajardo as mayor had expired, he and his son in-law,
appellant Babilonia, filed a written request with the incumbent municipal mayor for a permit to
construct a building adjacent to their gasoline station on a parcel of land registered in Fajardo's
name, located along the national highway and separated from the public plaza by a creek (Exh. D).
On January 16, 1954, the request was denied, for the reason among others that the proposed
building would destroy the view or beauty of the public plaza (Exh. E). On January 18, 1954,
defendants reiterated their request for a building permit (Exh. 3), but again the request was turned
down by the mayor. Whereupon, appellants proceeded with the construction of the building without a
permit, because they needed a place of residence very badly, their former house having been
destroyed by a typhoon and hitherto they had been living on leased property.
On February 26, 1954, appellants were charged before and convicted by the justice of the peace
court of Baao, Camarines Sur, for violation of the ordinance in question. Defendants appealed to the
Court of First Instance, which affirmed the conviction, and sentenced appellants to pay a fine of P35
each and the costs, as well as to demolish the building in question because it destroys the view of
the public plaza of Baao, in that "it hinders the view of travelers from the National Highway to the
said public plaza." From this decision, the accused appealed to the Court of Appeals, but the latter
forwarded the records to us because the appeal attacks the constitutionality of the ordinance in
question.
We find that the appealed conviction can not stand.
A first objection to the validity of the ordinance in question is that under it the mayor has absolute
discretion to issue or deny a permit. The ordinance fails to state any policy, or to set up any standard
to guide or limit the mayor's action. No purpose to be attained by requiring the permit is expressed;
no conditions for its grant or refusal are enumerated. It is not merely a case of deficient standards;
standards are entirely lacking. The ordinance thus confers upon the mayor arbitrary and unrestricted
power to grant or deny the issuance of building permits, and it is a settled rule that such an
undefined and unlimited delegation of power to allow or prevent an activity, per se lawful, is invalid
(People vs. Vera, 65 Phil., 56; Primicias vs. Fugoso, 80 Phil., 71; Schloss Poster Adv. Co. vs. Rock
Hill, 2 SE (2d) 392)
The ordinance in question in no way controls or guides the discretion vested thereby in the
respondents. It prescribes no uniform rule upon which the special permission of the city is to
be granted. Thus the city is clothed with the uncontrolled power to capriciously grant the
privilege to some and deny it others; to refuse the application of one landowner or lessee
and to grant that of another, when for all material purposes, the two applying for precisely the
same privileges under the same circumstances. The danger of such an ordinance is that it
makes possible arbitrary discriminations and abuses in its execution, depending upon no
conditions or qualifications whatever, other than the unregulated arbitrary will of the city
authorities as the touchstone by which its validity is to be tested. Fundamental rights under

our government do not depend for their existence upon such a slender and uncertain thread.
Ordinances which thus invest a city council with a discretion which is purely arbitrary, and
which may be exercised in the interest of a favored few, are unreasonable and invalid. The
ordinance should have established a rule by which its impartial enforcement could be
secured. All of the authorities cited above sustain this conclusion.
As was said in City of Richmond vs. Dudley, 129 Ind. 112,28 N. E. 312, 314 13 L. R. A. 587,
28 Am. St. Rep. 180: "It seems from the foregoing authorities to be well established that
municipal ordinances placing restrictions upon lawful conduct or the lawful use of property
must, in order to be valid, specify the rules and conditions to be observed in such conduct or
business; and must admit of the exercise of the privilege of all citizens alike who will comply
with such rules and conditions; and must not admit of the exercise, or of an opportunity for
the exercise, of any arbitrary discrimination by the municipal authorities between citizens
who will so comply. (Schloss Poster Adv. Co., Inc. vs. City of Rock Hill, et al., 2 SE (2d), pp.
394-395).
It is contended, on the other hand, that the mayor can refuse a permit solely in case that the
proposed building "destroys the view of the public plaza or occupies any public property" (as stated
in its section 3); and in fact, the refusal of the Mayor of Baao to issue a building permit to the
appellant was predicated on the ground that the proposed building would "destroy the view of the
public plaza" by preventing its being seen from the public highway. Even thus interpreted, the
ordinance is unreasonable and oppressive, in that it operates to permanently deprive appellants of
the right to use their own property; hence, it oversteps the bounds of police power, and amounts to a
taking of appellants property without just compensation. We do not overlook that the modern
tendency is to regard the beautification of neighborhoods as conducive to the comfort and happiness
of residents. But while property may be regulated in the interest of the general welfare, and in its
pursuit, the State may prohibit structures offensive to the sight (Churchill and Tait vs. Rafferty, 32
Phil. 580), the State may not, under the guise of police power, permanently divest owners of the
beneficial use of their property and practically confiscate them solely to preserve or assure the
aesthetic appearance of the community. As the case now stands, every structure that may be
erected on appellants' land, regardless of its own beauty, stands condemned under the ordinance in
question, because it would interfere with the view of the public plaza from the highway. The
appellants would, in effect, be constrained to let their land remain idle and unused for the obvious
purpose for which it is best suited, being urban in character. To legally achieve that result, the
municipality must give appellants just compensation and an opportunity to be heard.
An ordinance which permanently so restricts the use of property that it can not be used for
any reasonable purpose goes, it is plain, beyond regulation and must be recognized as a
taking of the property. The only substantial difference, in such case, between restriction and
actual taking, is that the restriction leaves the owner subject to the burden of payment of
taxation, while outright confiscation would relieve him of that burden. (Arverne Bay Constr.
Co. vs. Thatcher (N.Y.) 117 ALR. 1110, 1116).
A regulation which substantially deprives an owner of all beneficial use of his property is
confiscation and is a deprivation within the meaning of the 14th Amendment. (Sundlum vs.

Zoning Bd., 145 Atl. 451; also Eaton vs. Sweeny, 177 NE 412; Taylor vs. Jacksonville, 133
So. 114).
Zoning which admittedly limits property to a use which can not reasonably be made of it
cannot be said to set aside such property to a use but constitutes the taking of such property
without just compensation. Use of property is an element of ownership therein. Regardless
of the opinion of zealots that property may properly, by zoning, be utterly destroyed without
compensation, such principle finds no support in the genius of our government nor in the
principles of justice as we known them. Such a doctrine shocks the sense of justice. If it be
of public benefit that property remain open and unused, then certainly the public, and not the
private individuals, should bear the cost of reasonable compensation for such property under
the rules of law governing the condemnation of private property for public use. (Tews vs.
Woolhiser (1933) 352 I11. 212, 185 N.E. 827) (Emphasis supplied.)
The validity of the ordinance in question was justified by the court below under section 2243, par. (c),
of the Revised Administrative Code, as amended. This section provides:
SEC. 2243. Certain legislative powers of discretionary character. The municipal council
shall have authority to exercise the following discretionary powers:
xxx

xxx

xxx

(c) To establish fire limits in populous centers, prescribe the kinds of buildings that may be
constructed or repaired within them, and issue permits for the creation or repair thereof,
charging a fee which shall be determined by the municipal council and which shall not be
less than two pesos for each building permit and one peso for each repair permit issued. The
fees collected under the provisions of this subsection shall accrue to the municipal school
fund.
Under the provisions of the section above quoted, however, the power of the municipal council to
require the issuance of building permits rests upon its first establishing fire limits in populous parts of
the town and prescribing the kinds of buildings that may be constructed or repaired within them. As
there is absolutely no showing in this case that the municipal council had either established fire limits
within the municipality or set standards for the kind or kinds of buildings to be constructed or
repaired within them before it passed the ordinance in question, it is clear that said ordinance was
not conceived and promulgated under the express authority of sec. 2243 (c) aforequoted.
We rule that the regulation in question, Municipal Ordinance No. 7, Series of 1950, of the
Municipality of Baao, Camarines Sur, was beyond the authority of said municipality to enact, and is
therefore null and void. Hence, the conviction of herein appellants is reversed, and said accused are
acquitted, with costs de oficio. So ordered.
Paras, C. J., Bengzon, Padilla, Montemayor, Reyes, A., Bautista Angelo, Concepcion, Endencia and
Felix, JJ.,concur.
G.R. No. L-10572 December 21, 1915

FRANCIS A. CHURCHILL and STEWART TAIT, plaintiffs-appellees,

vs.
JAMES J. RAFFERTY, Collector of Internal Revenue, defendant-appellant.
Attorney-General Avancea for appellant.
Aitken and DeSelms for appellees.

TRENT, J.:
The judgment appealed from in this case perpetually restrains and prohibits the defendant and his
deputies from collecting and enforcing against the plaintiffs and their property the annual tax
mentioned and described in subsection (b) of section 100 of Act No. 2339, effective July 1, 1914,
and from destroying or removing any sign, signboard, or billboard, the property of the plaintiffs, for
the sole reason that such sign, signboard, or billboard is, or may be, offensive to the sight; and
decrees the cancellation of the bond given by the plaintiffs to secure the issuance of the preliminary
injunction granted soon after the commencement of this action.
This case divides itself into two parts and gives rise to two main questions; (1) that relating to the
power of the court to restrain by injunction the collection of the tax complained of, and (2) that
relating to the validity of those provisions of subsection (b) of section 100 of Act No. 2339, conferring
power upon the Collector of Internal Revenue to remove any sign, signboard, or billboard upon the
ground that the same is offensive to the sight or is otherwise a nuisance.
The first question is one of the jurisdiction and is of vital importance to the Government. The sections
of Act No. 2339, which bear directly upon the subject, are 139 and 140. The first expressly forbids
the use of an injunction to stay the collection of any internal revenue tax; the second provides a
remedy for any wrong in connection with such taxes, and this remedy was intended to be exclusive,
thereby precluding the remedy by injunction, which remedy is claimed to be constitutional. The two
sections, then, involve the right of a dissatisfied taxpayers to use an exceptional remedy to test the
validity of any tax or to determine any other question connected therewith, and the question whether
the remedy by injunction is exceptional.
Preventive remedies of the courts are extraordinary and are not the usual remedies. The origin and
history of the writ of injunction show that it has always been regarded as an extraordinary, preventive
remedy, as distinguished from the common course of the law to redress evils after they have been
consummated. No injunction issues as of course, but is granted only upon the oath of a party and
when there is no adequate remedy at law. The Government does, by section 139 and 140, take
away the preventive remedy of injunction, if it ever existed, and leaves the taxpayer, in a contest with
it, the same ordinary remedial actions which prevail between citizen and citizen. The AttorneyGeneral, on behalf of the defendant, contends that there is no provisions of the paramount law which
prohibits such a course. While, on the other hand, counsel for plaintiffs urge that the two sections are
unconstitutional because (a) they attempt to deprive aggrieved taxpayers of all substantial remedy
for the protection of their property, thereby, in effect, depriving them of their property without due
process of law, and (b) they attempt to diminish the jurisdiction of the courts, as conferred upon them

by Acts Nos. 136 and 190, which jurisdiction was ratified and confirmed by the Act of Congress of
July 1, 1902.
In the first place, it has been suggested that section 139 does not apply to the tax in question
because the section, in speaking of a "tax," means only legal taxes; and that an illegal tax (the one
complained of) is not a tax, and, therefore, does not fall within the inhibition of the section, and may
be restrained by injunction. There is no force in this suggestion. The inhibition applies to all internal
revenue taxes imposes, or authorized to be imposed, by Act No. 2339. (Snyder vs. Marks, 109 U.S.,
189.) And, furthermore, the mere fact that a tax is illegal, or that the law, by virtue of which it is
imposed, is unconstitutional, does not authorize a court of equity to restrain its collection by
injunction. There must be a further showing that there are special circumstances which bring the
case under some well recognized head of equity jurisprudence, such as that irreparable injury,
multiplicity of suits, or a cloud upon title to real estate will result, and also that there is, as we have
indicated, no adequate remedy at law. This is the settled law in the United States, even in the
absence of statutory enactments such as sections 139 and 140. (Hannewinkle vs. Mayor, etc., of
Georgetown, 82 U.S., 547; Indiana Mfg. Co. vs. Koehne, 188 U.S., 681; Ohio Tax cases, 232 U. S.,
576, 587; Pittsburgh C. C. & St. L. R. Co. vs. Board of Public Works, 172 U. S., 32; Shelton vs. Plat,
139 U.S., 591; State Railroad Tax Cases, 92 U. S., 575.) Therefore, this branch of the case must be
controlled by sections 139 and 140, unless the same be held unconstitutional, and consequently, null
and void.
The right and power of judicial tribunals to declare whether enactments of the legislature
exceed the constitutional limitations and are invalid has always been considered a grave
responsibility, as well as a solemn duty. The courts invariably give the most careful
consideration to questions involving the interpretation and application of the Constitution,
and approach constitutional questions with great deliberation, exercising their power in this
respect with the greatest possible caution and even reluctance; and they should never
declare a statute void, unless its invalidity is, in their judgment, beyond reasonable doubt. To
justify a court in pronouncing a legislative act unconstitutional, or a provision of a state
constitution to be in contravention of the Constitution of the United States, the case must be
so clear to be free from doubt, and the conflict of the statute with the constitution must be
irreconcilable, because it is but a decent respect to the wisdom, the integrity, and the
patriotism of the legislative body by which any law is passed to presume in favor of its
validity until the contrary is shown beyond reasonable doubt. Therefore, in no doubtful case
will the judiciary pronounce a legislative act to be contrary to the constitution. To doubt the
constitutionality of a law is to resolve the doubt in favor of its validity. (6 Ruling Case Law,
secs. 71, 72, and 73, and cases cited therein.)
It is also the settled law in the United States that "due process of law" does not always require, in
respect to the Government, the same process that is required between citizens, though it generally
implies and includes regular allegations, opportunity to answer, and a trial according to some well
settled course of judicial proceedings. The case with which we are dealing is in point. A citizen's
property, both real and personal, may be taken, and usually is taken, by the government in payment
of its taxes without any judicial proceedings whatever. In this country, as well as in the United States,
the officer charged with the collection of taxes is authorized to seize and sell the property of
delinquent taxpayers without applying to the courts for assistance, and the constitutionality of the law

authorizing this procedure never has been seriously questioned. (City of Philadelphia vs. [Diehl] The
Collector, 5 Wall., 720; Nicholl vs. U.S., 7 Wall., 122, and cases cited.) This must necessarily be the
course, because it is upon taxation that the Government chiefly relies to obtain the means to carry
on its operations, and it is of the utmost importance that the modes adopted to enforce the collection
of the taxes levied should be summary and interfered with as little as possible. No government could
exist if every litigious man were permitted to delay the collection of its taxes. This principle of public
policy must be constantly borne in mind in determining cases such as the one under consideration.
With these principles to guide us, we will proceed to inquire whether there is any merit in the two
propositions insisted upon by counsel for the plaintiffs. Section 5 of the Philippine Bill provides: "That
no law shall be enacted in said Islands which shall deprive any person of life, liberty, or property
without due process of law, or deny to any person therein the equal protection of the law."
The origin and history of these provisions are well-known. They are found in substance in the
Constitution of the United States and in that of ever state in the Union.
Section 3224 of the Revised Statutes of the United States, effective since 1867, provides that: "No
suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any
court."
Section 139, with which we have been dealing, reads: "No court shall have authority to grant an
injunction to restrain the collection of any internal-revenue tax."
A comparison of these two sections show that they are essentially the same. Both expressly prohibit
the restraining of taxes by injunction. If the Supreme Court of the United States has clearly and
definitely held that the provisions of section 3224 do not violate the "due process of law" and "equal
protection of the law" clauses in the Constitution, we would be going too far to hold that section 139
violates those same provisions in the Philippine Bill. That the Supreme Court of the United States
has so held, cannot be doubted.
In Cheatham vs. United States (92 U.S., 85,89) which involved the validity of an income tax levied by
an act of Congress prior to the one in issue in the case of Pollock vs. Farmers' Loan & Trust Co.
(157 U.S., 429) the court, through Mr. Justice Miller, said: "If there existed in the courts, state or
National, any general power of impeding or controlling the collection of taxes, or relieving the
hardship incident to taxation, the very existence of the government might be placed in the power of a
hostile judiciary. (Dows vs. The City of Chicago, 11 Wall., 108.) While a free course of remonstrance
and appeal is allowed within the departments before the money is finally exacted, the General
Government has wisely made the payment of the tax claimed, whether of customs or of internal
revenue, a condition precedent to a resort to the courts by the party against whom the tax is
assessed. In the internal revenue branch it has further prescribed that no such suit shall be brought
until the remedy by appeal has been tried; and, if brought after this, it must be within six months after
the decision on the appeal. We regard this as a condition on which alone the government consents
to litigate the lawfulness of the original tax. It is not a hard condition. Few governments have
conceded such a right on any condition. If the compliance with this condition requires the party
aggrieved to pay the money, he must do it."

Again, in State Railroad Tax Cases (92 U.S., 575, 613), the court said: "That there might be no
misunderstanding of the universality of this principle, it was expressly enacted, in 1867, that "no suit
for the purpose of restraining the assessment or collection of any tax shall be maintained in any
court." (Rev, Stat., sec. 3224.) And though this was intended to apply alone to taxes levied by the
United States, it shows the sense of Congress of the evils to be feared if courts of justice could, in
any case, interfere with the process of collecting taxes on which the government depends for its
continued existence. It is a wise policy. It is founded in the simple philosophy derived from the
experience of ages, that the payment of taxes has to be enforced by summary and stringent means
against a reluctant and often adverse sentiment; and to do this successfully, other instrumentalities
and other modes of procedure are necessary, than those which belong to courts of justice."
And again, in Snyder vs. Marks (109 U.S., 189), the court said: "The remedy of a suit to recover
back the tax after it is paid is provided by statute, and a suit to restrain its collection is forbidden. The
remedy so given is exclusive, and no other remedy can be substituted for it. Such has been the
current of decisions in the Circuit Courts of the United States, and we are satisfied it is a correct view
of the law."
itc-a1f

In the consideration of the plaintiffs' second proposition, we will attempt to show (1) that the
Philippine courts never have had, since the American occupation, the power to restrain by injunction
the collection of any tax imposed by the Insular Government for its own purpose and benefit, and (2)
that assuming that our courts had or have such power, this power has not been diminished or
curtailed by sections 139 and 140.
We will first review briefly the former and present systems of taxation. Upon the American occupation
of the Philippine, there was found a fairly complete system of taxation. This system was continued in
force by the military authorities, with but few changes, until the Civil Government assumed charge of
the subject. The principal sources of revenue under the Spanish regime were derived from customs
receipts, the so-called industrial taxes, the urbana taxes, the stamp tax, the personal cedula tax, and
the sale of the public domain. The industrial and urbana taxes constituted practically an income tax
of some 5 per cent on the net income of persons engaged in industrial and commercial pursuits and
on the income of owners of improved city property. The sale of stamped paper and adhesive stamp
tax. The cedula tax was a graduated tax, ranging from nothing up to P37.50. The revenue derived
from the sale of the public domain was not considered a tax. The American authorities at once
abolished the cedula tax, but later restored it in a modified form, charging for each cedula twenty
centavos, an amount which was supposed to be just sufficient to cover the cost of issuance. The
urbana tax was abolished by Act No. 223, effective September 6, 1901.
The "Municipal Code" (Act No. 82) and the Provincial Government Act (No. 83), both enacted in
1901, authorize municipal councils and provincial boards to impose an ad valorem tax on real estate.
The Municipal Code did not apply to the city of Manila. This city was given a special charter (Act No.
183), effective August 30, 1901; Under this charter the Municipal Board of Manila is authorized and
empowered to impose taxes upon real estate and, like municipal councils, to license and regulate
certain occupations. Customs matters were completely reorganized by Act No. 355, effective at the
port of Manila on February 7, 1902, and at other ports in the Philippine Islands the day after the
receipt of a certified copy of the Act. The Internal Revenue Law of 1904 (Act No. 1189), repealed all
existing laws, ordinances, etc., imposing taxes upon the persons, objects, or occupations taxed

under that act, and all industrial taxes and stamp taxes imposed under the Spanish regime were
eliminated, but the industrial tax was continued in force until January 1, 1905. This Internal Revenue
Law did not take away from municipal councils, provincial boards, and the Municipal Board of the
city of Manila the power to impose taxes upon real estate. This Act (No. 1189), with its amendments,
was repealed by Act No. 2339, an act "revising and consolidating the laws relative to internal
revenue."
Section 84 of Act No. 82 provides that "No court shall entertain any suit assailing the validity of a tax
assessed under this act until the taxpayer shall have paid, under protest, the taxes assessed against
him, . . . ."
This inhibition was inserted in section 17 of Act No. 83 and applies to taxes imposed by provincial
boards. The inhibition was not inserted in the Manila Charter until the passage of Act No. 1793,
effective October 12, 1907. Act No. 355 expressly makes the payment of the exactions claimed a
condition precedent to a resort to the courts by dissatisfied importers. Section 52 of Act No. 1189
provides "That no courts shall have authority to grant an injunction restraining the collection of any
taxes imposed by virtue of the provisions of this Act, but the remedy of the taxpayer who claims that
he is unjustly assessed or taxed shall be by payment under protest of the sum claimed from him by
the Collector of Internal Revenue and by action to recover back the sum claimed to have been
illegally collected."
Sections 139 and 140 of Act No. 2339 contain, as we have indicated, the same prohibition and
remedy. The result is that the courts have been expressly forbidden, in every act creating or
imposing taxes or imposts enacted by the legislative body of the Philippines since the American
occupation, to entertain any suit assailing the validity of any tax or impost thus imposed until the tax
shall have been paid under protest. The only taxes which have not been brought within the express
inhibition were those included in that part of the old Spanish system which completely disappeared
on or before January 1, 1905, and possibly the old customs duties which disappeared in February,
1902.
Section 56 of the Organic Act (No. 136), effective June 16, 1901, provides that "Courts of First
Instance shall have original jurisdiction:
xxx

xxx

xxx

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

xxx

xxx

7. Said courts and their judges, or any of them, shall have power to issue writs of
injunction, mandamus,certiorari, prohibition, quo warranto, and habeas corpus in their
respective provinces and districts, in the manner provided in the Code of Civil Procedure.
The provisions of the Code of Civil Procedure (Act No. 190), effective October 1, 1901, which deals
with the subject of injunctions, are sections 162 to 172, inclusive. Injunctions, as here defined, are of
two kinds; preliminary and final. The former may be granted at any time after the commencement of

the action and before final judgment, and the latter at the termination of the trial as the relief or part
of the relief prayed for (sec. 162). Any judge of the Supreme Court may grant a preliminary injunction
in any action pending in that court or in any Court of First Instance. A preliminary injunction may also
be granted by a judge of the Court of First Instance in actions pending in his district in which he has
original jurisdiction (sec. 163). But such injunctions may be granted onlywhen the complaint shows
facts entitling the plaintiff to the relief demanded (sec. 166), and before a final or permanent
injunction can be granted, it must appear upon the trial of the action that the plaintiff is entitled to
have commission or continuance of the acts complained of perpetually restrained (sec. 171). These
provisions authorize the institution in Courts of First Instance of what are known as "injunction suits,"
the sole object of which is to obtain the issuance of a final injunction. They also authorize the
granting of injunctions as aiders in ordinary civil actions. We have defined in Davesa vs. Arbes (13
Phil. Rep., 273), an injunction to be "A "special remedy" adopted in that code (Act 190) from
American practice, and originally borrowed from English legal procedure, which was there issued by
the authority and under the seal of a court of equity, and limited, as in other cases where equitable
relief is sought, to those cases where there is no "plain, adequate, and complete remedy at
law,"which will not be granted while the rights between the parties are undetermined, except in
extraordinary cases where material and irreparable injury will be done,"which cannot be
compensated in damages . . .
By paragraph 2 of section 56 of Act No. 136, supra, and the provisions of the various subsequent
Acts heretofore mentioned, the Insular Government has consented to litigate with aggrieved persons
the validity of any original tax or impost imposed by it on condition that this be done in ordinary civil
actions after the taxes or exactions shall have been paid. But it is said that paragraph 2 confers
original jurisdiction upon Courts of First Instance to hear and determine "all civil actions" which
involve the validity of any tax, impost or assessment, and that if the all-inclusive words "all" and "any"
be given their natural and unrestricted meaning, no action wherein that question is involved can
arise over which such courts do not have jurisdiction. (Barrameda vs. Moir, 25 Phil. Rep., 44.) This is
true. But the term "civil actions" had its well defined meaning at the time the paragraph was enacted.
The same legislative body which enacted paragraph 2 on June 16, 1901, had, just a few months
prior to that time, defined the only kind of action in which the legality of any tax imposed by it might
be assailed. (Sec. 84, Act 82, enacted January 31, 1901, and sec. 17, Act No. 83, enacted February
6, 1901.) That kind of action being payment of the tax under protest and an ordinary suit to recover
and no other, there can be no doubt that Courts of First Instance have jurisdiction over all such
actions. The subsequent legislation on the same subject shows clearly that the Commission, in
enacting paragraph 2, supra, did not intend to change or modify in any way section 84 of Act No. 82
and section 17 of Act No. 83, but, on the contrary, it was intended that "civil actions," mentioned in
said paragraph, should be understood to mean, in so far as testing the legality of taxes were
concerned, only those of the kind and character provided for in the two sections above mentioned. It
is also urged that the power to restrain by injunction the collection of taxes or imposts is conferred
upon Courts of First Instance by paragraph 7 of section 56, supra. This paragraph does empower
those courts to grant injunctions, both preliminary and final, in any civil action pending in their
districts, provided always, that the complaint shows facts entitling the plaintiff to the relief demanded.
Injunction suits, such as the one at bar, are "civil actions," but of a special or extraordinary character.
It cannot be said that the Commission intended to give a broader or different meaning to the word
"action," used in Chapter 9 of the Code of Civil Procedure in connection with injunctions, than it gave
to the same word found in paragraph 2 of section 56 of the Organic Act. The Insular Government, in

exercising the power conferred upon it by the Congress of the United States, has declared that the
citizens and residents of this country shall pay certain specified taxes and imposts. The power to tax
necessarily carries with it the power to collect the taxes. This being true, the weight of authority
supports the proposition that the Government may fix the conditions upon which it will consent to
litigate the validity of its original taxes. (Tennessee vs. Sneed, 96 U.S., 69.)
We must, therefore, conclude that paragraph 2 and 7 of section 56 of Act No. 136, construed in the
light of the prior and subsequent legislation to which we have referred, and the legislative and
judicial history of the same subject in the United States with which the Commission was familiar, do
not empower Courts of firs Instance to interfere by injunction with the collection of the taxes in
question in this case.
1awphil.net

If we are in error as to the scope of paragraph 2 and 7, supra, and the Commission did intend to
confer the power upon the courts to restrain the collection of taxes, it does not necessarily follow that
this power or jurisdiction has been taken away by section 139 of Act No. 2339, for the reason that all
agree that an injunction will not issue in any case if there is an adequate remedy at law. The very
nature of the writ itself prevents its issuance under such circumstances. Legislation forbidding the
issuing of injunctions in such cases is unnecessary. So the only question to be here determined is
whether the remedy provided for in section 140 of Act No. 2339 is adequate. If it is, the writs which
form the basis of this appeal should not have been issued. If this is the correct view, the authority to
issue injunctions will not have been taken away by section 139, but rendered inoperative only by
reason of an adequate remedy having been made available.
The legislative body of the Philippine Islands has declared from the beginning (Act No. 82) that
payment under protest and suit to recover is an adequate remedy to test the legality of any tax or
impost, and that this remedy is exclusive. Can we say that the remedy is not adequate or that it is
not exclusive, or both? The plaintiffs in the case at bar are the first, in so far as we are aware, to
question either the adequacy or exclusiveness of this remedy. We will refer to a few cases in the
United States where statutes similar to sections 139 and 140 have been construed and applied.
In May, 1874, one Bloomstein presented a petition to the circuit court sitting in Nashville, Tennessee,
stating that his real and personal property had been assessed for state taxes in the year 1872 to the
amount of $132.60; that he tendered to the collector this amount in "funds receivable by law for such
purposes;" and that the collector refused to receive the same. He prayed for an alternative writ
of mandamus to compel the collector to receive the bills in payment for such taxes, or to show cause
to the contrary. To this petition the collector, in his answer, set up the defense that the petitioner's suit
was expressly prohibited by the Act of the General Assembly of the State of Tennessee, passed in
1873. The petition was dismissed and the relief prayed for refused. An appeal to the supreme court
of the State resulted in the affirmance of the judgment of the lower court. The case was then carried
to the Supreme Court of the United States (Tennessee vs. Sneed, 96 U. S., 69), where the judgment
was again affirmed.
The two sections of the Act of [March 21,] 1873, drawn in question in that cases, read as follows:
1. That in all cases in which an officer, charged by law with the collection of revenue due the
State, shall institute any proceeding, or take any steps for the collection of the same, alleged

or claimed to be due by said officer from any citizen, the party against whom the proceeding
or step is taken shall, if he conceives the same to be unjust or illegal, or against any statute
or clause of the Constitution of the State, pay the same under protest; and, upon his making
said payment, the officer or collector shall pay such revenue into the State Treasury, giving
notice at the time of payment to the Comptroller that the same was paid under protest; and
the party paying said revenue may, at any time within thirty days after making said payment,
and not longer thereafter, sue the said officer having collected said sum, for the recovery
thereof. And the same may be tried in any court having the jurisdiction of the amount and
parties; and, if it be determined that the same was wrongfully collected, as not being due
from said party to the State, for any reason going to the merits of the same, then the court
trying the case may certify of record that the same was wrongfully paid and ought to be
refunded; and thereupon the Comptroller shall issue his warrant for the same, which shall be
paid in preference to other claims on the Treasury.
2. That there shall be no other remedy, in any case of the collection of revenue, or attempt to
collect revenue illegally, or attempt to collect revenue in funds only receivable by said officer
under the law, the same being other or different funds than such as the tax payer may
tender, or claim the right to pay, than that above provided; and no writ for the prevention of
the collection of any revenue claimed, or to hinder or delay the collection of the same, shall
in anywise issue, either injunction, supersedeas, prohibition, or any other writ or process
whatever; but in all cases in which, for any reason, any person shall claim that the tax so
collected was wrongfully or illegally collected, the remedy for said party shall be as above
provided, and in no other manner."
In discussing the adequacy of the remedy provided by the Tennessee Legislature, as above set
forth, the Supreme Court of the United States, in the case just cited, said: "This remedy is simple
and effective. A suit at law to recover money unlawfully exacted is as speedy, as easily tried, and
less complicated than a proceeding bymandamus. ... 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 bymandamus, 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) "oleomargarine" 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 Stettlervs. 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.