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.

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.

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 ShortTime 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. 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.

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.

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

The Court of Appeals reversed the decision of the RTC and affirmed the constitutionality of
the Ordinance.24 First, 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.

fact that in its hundred or so years of presence in our nations legal system, its use has
rarely been denied.

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.

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.

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

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.

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.

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 access63and 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.

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 gender53 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.

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]

constitutional protection. Governmental powers should stop short of certain intrusions into
the personal life of the citizen.70

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

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.

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

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 age-old 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
right-wrong 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 fair-minded 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.
G.R. No. 118127

April 12, 2005

CITY OF MANILA, HON. ALFREDO S. LIM as the Mayor of the City of Manila, HON.
JOSELITO L. ATIENZA, in his capacity as Vice-Mayor 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, Petitioner,
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 Court's 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 Petition1 under Rule 45 (then Rule 42) of the Revised Rules on Civil
Procedure seeking the reversal of the Decision2 in Civil Case No. 93-66511 of the Regional

Trial Court (RTC) of Manila, Branch 18 (lower court),3 is the validity of Ordinance No. 7783
(the Ordinance) of the City of Manila.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.5 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.6 On 28 June 1993, MTDC filed
a Petition for Declaratory Relief with Prayer for a Writ of Preliminary Injunction and/or
Temporary Restraining Order7 (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.8
Enacted by the City Council9 on 9 March 1993 and approved by petitioner City Mayor on 30
March 1993, the saidOrdinance is entitled
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

8. Flower shops

6. Day Clubs

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

wholesome family entertainment that cater to both local and foreign
clientele.

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:

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)

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

In the RTC Petition, MTDC argued that the Ordinance erroneously and improperly included
in its enumeration of prohibited establishments, motels and inns such as MTDC's 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)12 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. 49913 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 Ordinanceviolates MTDC's constitutional rights in that: (a) it is
confiscatory and constitutes an invasion of plaintiff's property rights; (b) the City Council has
no power to find as a fact that a particular thing is a nuisance per se nor does it have the
power to extrajudicially destroy it; and (6) The Ordinance 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 Answer15 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,16 which 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:
....
(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,17 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.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. 409,19 otherwise known as the
Revised Charter of the City of Manila (Revised Charter of Manila)20 which reads, thus:
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.22 The Ordinance, the petitioners
likewise claimed, cannot be assailed as ex post facto as it was prospective in
operation.23 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.24
On 28 June 1993, respondent Judge Perfecto A.S. Laguio, Jr. (Judge Laguio) issued an exparte temporary restraining order against the enforcement of the Ordinance.25 And on 16
July 1993, again in an intrepid gesture, he granted the writ of preliminary injunction prayed
for by MTDC.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 Decision reads:27

10

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 Appeal29 on 12 December 1994, manifesting
that they are elevating the case to this Court under then Rule 42 on pure questions of law.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 Ordinancecontravenes P.D. 49931 which
allows operators of all kinds of commercial establishments, except those specified therein;
and (3) It erred in declaring the Ordinance void and unconstitutional.32
In the Petition and in its Memorandum,33 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.34 They allege that
theOrdinance is a valid exercise of police power; it does not contravene P.D. 499; and that it
enjoys the presumption of validity.35
In its Memorandum36 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.
This is an opportune time to express the Court's deep sentiment and tenderness for the
Ermita-Malate area being its home for several decades. A long-time resident, the Court
witnessed the area's 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
the Ordinance, 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.38 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.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.41 This delegated police power is found in
Section 16 of the Code, known as the general welfare clause, viz:
SECTION 16. General WelfareEvery 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, thesangguniang 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/

11

municipality provided under the Code.42 The inquiry in this Petition is concerned with the
validity of the exercise of such delegated power.

judicial procedure; and to secure to all persons equal and impartial justice and the benefit of
the general law.51

The Ordinance contravenes

the Constitution

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

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.43 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.
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,49 and as
such it is a limitation upon the exercise of the police power.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

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 person's life, liberty, or property. In other words,
substantive due process looks to whether there is a sufficient justification for the
government's action.54 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.55 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.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 despotically57 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.58 Due
process requires the intrinsic validity of the law in interfering with the rights of the person to
his life, liberty and property.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.60 It must be evident that no other alternative for the accomplishment of the

12

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.61
Lacking a concurrence of these two requisites, the police measure shall be struck down as
an arbitrary intrusion into private rights62 a violation of the due process clause.
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 Manila63had
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."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
the Ordinance are within the scope of the City Council's 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 community's
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 seprotect
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,65 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.
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 man's 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 ErmitaMalate 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 Ordinancemay 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;67 and it may even impose increased license fees. In other words, there are other
means to reasonably accomplish the desired end.
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

13

the Ordinance within 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 person's 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."68 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.69
The U.S. Supreme Court in the case of Roth v. Board of Regents,70 sought to clarify the
meaning of "liberty." It said:

Persons desirous to own, operate and patronize the enumerated establishments under
Section 1 of the Ordinancemay seek autonomy for these purposes.
be it stressed that their consensual sexual behavior does not contravene any fundamental
state policy as contained in the Constitution. Motel patrons who are single and unmarried
may invoke this right to autonomy to consummate their bonds in intimate sexual conduct
within the motel's premises72 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.73 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.
it is the most comprehensive of rights and the right most valued by civilized men. 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 freedom74
The concept of liberty compels respect for the individual whose claim to privacy and
interference demands respect. As the case of Morfe v. Mutuc,75 borrowing the words of
Laski, so very aptly stated:

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.

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.

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:

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

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 one's 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

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.

14

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.77 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.78 It
is intrusive and violative of the private property rights of individuals.
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 person's 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 government's regulation leaves no reasonable economically viable use of
the property.80
In the landmark case of Pennsylvania Coal v. Mahon,81 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.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.84A regulation that permanently denies all

economically beneficial or productive use of land is, from the owner's 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.85 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.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 regulation's economic effect on
the landowner, the extent to which the regulation interferes with reasonable investmentbacked 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.
are confiscatory as well. The penalty of permanent closure in cases of subsequent
violations found in Section 4 of the to transfer to any place outside of the Ermita-Malate
area or to convert into allowed businesses The second and third options 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

15

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."89 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.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
93

94

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.' "

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,95 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, 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 city's 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,96 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.97

16

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.98 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.99 The "equal protection of the laws is a pledge of the protection of equal
laws."100 It limits governmental discrimination. The equal protection clause extends to
artificial persons but only insofar as their property is concerned.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 law's 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.103 The classification must, as an indispensable requisite, not be

arbitrary. To be valid, it must conform to the following requirements:
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 Court's 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.
one of the hinted ills the The standard "where women are used as tools for entertainment"
is also discriminatory as prostitution Ordinance 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. aims to banish105 Thus, the
discrimination is invalid.
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.

17

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 inKwong Sing v. City of Manila106 that:
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,108 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:
(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' assertion110 that they were modified by the
Code vesting upon City Councils prohibitory powers.
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.111 These powers, therefore, should not be confused, commingled or consolidated

18

as to create a conglomerated and unified power of regulation, suppression and

prohibition.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.113 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.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,115 is instructive. It held that:
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.116 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.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
latter's 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:
. . .

19

(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 abovequoted Section. The Ordinance now vainly attempts to lump these establishments with
houses of ill-repute and expand the City Council's 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 singuliswhich 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.121 As succinctly illustrated
in Solicitor General v. Metropolitan Manila Authority: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 we reiterate our support for it. But inspite of its
virtuous aims, the enactment of the 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
Ordinance not even under the guise of police power. 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
WHEREFORE, the Petition is hereby DENIED and the decision of the Regional Trial Court
declaring the Ordinancevoid is AFFIRMED. Costs against petitioners.
SO ORDERED.

20

G.R. No. 74457 March 20, 1987

RESTITUTO YNOT, petitioner,
vs.
INTERMEDIATE APPELLATE COURT, THE STATION COMMANDER, INTEGRATED
NATIONAL POLICE, BAROTAC NUEVO, ILOILO and THE REGIONAL DIRECTOR,
BUREAU OF ANIMAL INDUSTRY, REGION IV, ILOILO CITY, respondents.
Ramon A. Gonzales for petitioner.

SECTION 1. Executive Order No. 626 is hereby amended such that

henceforth, no carabao regardless of age, sex, physical condition or
purpose and no carabeef shall be transported from one province to
another. The carabao or carabeef transported in violation of this Executive
Order as amended shall be subject to confiscation and forfeiture by the
government, to be distributed to charitable institutions and other similar
institutions as the Chairman of the National Meat Inspection Commission
may ay see fit, in the case of carabeef, and to deserving farmers through
dispersal as the Director of Animal Industry may see fit, in the case of
carabaos.
SECTION 2. This Executive Order shall take effect immediately.

CRUZ, J.:
The essence of due process is distilled in the immortal cry of Themistocles to Alcibiades
"Strike but hear me first!" It is this cry that the petitioner in effect repeats here as he
challenges the constitutionality of Executive Order No. 626-A.
The said executive order reads in full as follows:
WHEREAS, the President has given orders prohibiting the interprovincial
movement of carabaos and the slaughtering of carabaos not complying
with the requirements of Executive Order No. 626 particularly with respect
to age;
WHEREAS, it has been observed that despite such orders the violators
still manage to circumvent the prohibition against inter-provincial
movement of carabaos by transporting carabeef instead; and
WHEREAS, in order to achieve the purposes and objectives of Executive
Order No. 626 and the prohibition against interprovincial movement of
carabaos, it is necessary to strengthen the said Executive Order and
provide for the disposition of the carabaos and carabeef subject of the
violation;
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the
Philippines, by virtue of the powers vested in me by the Constitution, do
hereby promulgate the following:

Done in the City of Manila, this 25th day of October, in the year of Our
Lord, nineteen hundred and eighty. SiGNED F. MARCOS

President
The petitioner had transported six carabaos in a pump boat from Masbate to Iloilo on
January 13, 1984, when they were confiscated by the police station commander of Barotac
Nuevo, Iloilo, for violation of the above measure. 1 The petitioner sued for recovery, and the
Regional Trial Court of Iloilo City issued a writ of replevin upon his filing of
a supersedeas bond of P12,000.00. After considering the merits of the case, the court
sustained the confiscation of the carabaos and, since they could no longer be produced,
ordered the confiscation of the bond. The court also declined to rule on the constitutionality
of the executive order, as raise by the petitioner, for lack of authority and also for its
presumed validity. 2
The petitioner appealed the decision to the Intermediate Appellate Court,* 3 which upheld
the trial court, ** and he has now come before us in this petition for review on certiorari.
The thrust of his petition is that the executive order is unconstitutional insofar as it
authorizes outright confiscation of the carabao or carabeef being transported across
provincial boundaries. His claim is that the penalty is invalid because it is imposed without
according the owner a right to be heard before a competent and impartial court as
guaranteed by due process. He complains that the measure should not have been
presumed, and so sustained, as constitutional. There is also a challenge to the improper
exercise of the legislative power by the former President under Amendment No. 6 of the
1973 Constitution. 4

21

While also involving the same executive order, the case of Pesigan v. Angeles 5 is not
applicable here. The question raised there was the necessity of the previous publication of
the measure in the Official Gazette before it could be considered enforceable. We imposed
the requirement then on the basis of due process of law. In doing so, however, this Court did
not, as contended by the Solicitor General, impliedly affirm the constitutionality of Executive
Order No. 626-A. That is an entirely different matter.
This Court has declared that while lower courts should observe a becoming modesty in
examining constitutional questions, they are nonetheless not prevented from resolving the
same whenever warranted, subject only to review by the highest tribunal. 6 We have
jurisdiction under the Constitution to "review, revise, reverse, modify or affirm on appeal
or certiorari, as the law or rules of court may provide," final judgments and orders of lower
courts in, among others, all cases involving the constitutionality of certain measures. 7 This
simply means that the resolution of such cases may be made in the first instance by these
lower courts.
And while it is true that laws are presumed to be constitutional, that presumption is not by
any means conclusive and in fact may be rebutted. Indeed, if there be a clear showing of
their invalidity, and of the need to declare them so, then "will be the time to make the
hammer fall, and heavily," 8 to recall Justice Laurel's trenchant warning. Stated otherwise,
courts should not follow the path of least resistance by simply presuming the
constitutionality of a law when it is questioned. On the contrary, they should probe the issue
more deeply, to relieve the abscess, paraphrasing another distinguished jurist, 9 and so heal
the wound or excise the affliction.
Judicial power authorizes this; and when the exercise is demanded, there should be no
shirking of the task for fear of retaliation, or loss of favor, or popular censure, or any other
similar inhibition unworthy of the bench, especially this Court.
The challenged measure is denominated an executive order but it is really presidential
decree, promulgating a new rule instead of merely implementing an existing law. It was
issued by President Marcos not for the purpose of taking care that the laws were faithfully
executed but in the exercise of his legislative authority under Amendment No. 6. It was
provided thereunder that whenever in his judgment there existed a grave emergency or a
threat or imminence thereof or whenever the legislature failed or was unable to act
adequately on any matter that in his judgment required immediate action, he could, in order
to meet the exigency, issue decrees, orders or letters of instruction that were to have the
force and effect of law. As there is no showing of any exigency to justify the exercise of that
extraordinary power then, the petitioner has reason, indeed, to question the validity of the
executive order. Nevertheless, since the determination of the grounds was supposed to
have been made by the President "in his judgment, " a phrase that will lead to protracted

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

22

in judgment. Obviously, one side is only one-half of the question; the other half must also be
considered if an impartial verdict is to be reached based on an informed appreciation of the
issues in contention. It is indispensable that the two sides complement each other, as unto
the bow the arrow, in leading to the correct ruling after examination of the problem not from
one or the other perspective only but in its totality. A judgment based on less that this full
appraisal, on the pretext that a hearing is unnecessary or useless, is tainted with the vice of
bias or intolerance or ignorance, or worst of all, in repressive regimes, the insolence of
power.
The minimum requirements of due process are notice and hearing 13 which, generally
speaking, may not be dispensed with because they are intended as a safeguard against
official arbitrariness. It is a gratifying commentary on our judicial system that the
jurisprudence of this country is rich with applications of this guaranty as proof of our fealty to
the rule of law and the ancient rudiments of fair play. We have consistently declared that
every person, faced by the awesome power of the State, is entitled to "the law of the land,"
which Daniel Webster described almost two hundred years ago in the famous Dartmouth
College Case, 14 as "the law which hears before it condemns, which proceeds upon inquiry
and renders judgment only after trial." It has to be so if the rights of every person are to be
secured beyond the reach of officials who, out of mistaken zeal or plain arrogance, would
degrade the due process clause into a worn and empty catchword.
This is not to say that notice and hearing are imperative in every case for, to be sure, there
are a number of admitted exceptions. The conclusive presumption, for example, bars the
admission of contrary evidence as long as such presumption is based on human experience
or there is a rational connection between the fact proved and the fact ultimately presumed
therefrom. 15 There are instances when the need for expeditions action will justify omission
of these requisites, as in the summary abatement of a nuisance per se, like a mad dog on
the loose, which may be killed on sight because of the immediate danger it poses to the
safety and lives of the people. Pornographic materials, contaminated meat and narcotic
drugs are inherently pernicious and may be summarily destroyed. The passport of a person
sought for a criminal offense may be cancelled without hearing, to compel his return to the
country he has fled. 16 Filthy restaurants may be summarily padlocked in the interest of the
public health and bawdy houses to protect the public morals. 17 In such instances, previous
judicial hearing may be omitted without violation of due process in view of the nature of the
property involved or the urgency of the need to protect the general welfare from a clear and
present danger.
The protection of the general welfare is the particular function of the police power which
both restraints and is restrained by due process. The police power is simply defined as the
power inherent in the State to regulate liberty and property for the promotion of the general
welfare. 18 By reason of its function, it extends to all the great public needs and is described

as the most pervasive, the least limitable and the most demanding of the three inherent
powers of the State, far outpacing taxation and eminent domain. The individual, as a
member of society, is hemmed in by the police power, which affects him even before he is
born and follows him still after he is dead from the womb to beyond the tomb in
practically everything he does or owns. Its reach is virtually limitless. It is a ubiquitous and
often unwelcome intrusion. Even so, as long as the activity or the property has some
relevance to the public welfare, its regulation under the police power is not only proper but
necessary. And the justification is found in the venerable Latin maxims, Salus populi est
suprema lex and Sic utere tuo ut alienum non laedas, which call for the subordination of
individual interests to the benefit of the greater number.
It is this power that is now invoked by the government to justify Executive Order No. 626-A,
amending the basic rule in Executive Order No. 626, prohibiting the slaughter of carabaos
except under certain conditions. The original measure was issued for the reason, as
expressed in one of its Whereases, that "present conditions demand that the carabaos and
the buffaloes be conserved for the benefit of the small farmers who rely on them for energy
needs." We affirm at the outset the need for such a measure. In the face of the worsening
energy crisis and the increased dependence of our farms on these traditional beasts of
burden, the government would have been remiss, indeed, if it had not taken steps to protect
and preserve them.
A similar prohibition was challenged in United States v. Toribio, 19 where a law regulating
the registration, branding and slaughter of large cattle was claimed to be a deprivation of
property without due process of law. The defendant had been convicted thereunder for
having slaughtered his own carabao without the required permit, and he appealed to the
Supreme Court. The conviction was affirmed. The law was sustained as a valid police
measure to prevent the indiscriminate killing of carabaos, which were then badly needed by
farmers. An epidemic had stricken many of these animals and the reduction of their number
had resulted in an acute decline in agricultural output, which in turn had caused an incipient
famine. Furthermore, because of the scarcity of the animals and the consequent increase in
their price, cattle-rustling had spread alarmingly, necessitating more effective measures for
the registration and branding of these animals. The Court held that the questioned statute
was a valid exercise of the police power and declared in part as follows:
To justify the State in thus interposing its authority in behalf of the public, it
must appear, first, that the interests of the public generally, as
distinguished from those of a particular class, require such interference;
and second, that the means are reasonably necessary for the
accomplishment of the purpose, and not unduly oppressive upon
individuals. ...

23

From what has been said, we think it is clear that the enactment of the
provisions of the statute under consideration was required by "the
interests of the public generally, as distinguished from those of a
particular class" and that the prohibition of the slaughter of carabaos for
human consumption, so long as these animals are fit for agricultural work
or draft purposes was a "reasonably necessary" limitation on private
ownership, to protect the community from the loss of the services of such
animals by their slaughter by improvident owners, tempted either by
greed of momentary gain, or by a desire to enjoy the luxury of animal
food, even when by so doing the productive power of the community may
be measurably and dangerously affected.
In the light of the tests mentioned above, we hold with the Toribio Case that the carabao, as
the poor man's tractor, so to speak, has a direct relevance to the public welfare and so is a
lawful subject of Executive Order No. 626. The method chosen in the basic measure is also
reasonably necessary for the purpose sought to be achieved and not unduly oppressive
upon individuals, again following the above-cited doctrine. There is no doubt that by banning
the slaughter of these animals except where they are at least seven years old if male and
eleven years old if female upon issuance of the necessary permit, the executive order will
be conserving those still fit for farm work or breeding and preventing their improvident
depletion.
But while conceding that the amendatory measure has the same lawful subject as the
original executive order, we cannot say with equal certainty that it complies with the second
requirement, viz., that there be a lawful method. We note that to strengthen the original
measure, Executive Order No. 626-A imposes an absolute ban not on theslaughter of the
carabaos but on their movement, providing that "no carabao regardless of age, sex,
physical condition or purpose (sic) and no carabeef shall be transported from one province
to another." The object of the prohibition escapes us. The reasonable connection between
the means employed and the purpose sought to be achieved by the questioned measure is
missing
We do not see how the prohibition of the inter-provincial transport of carabaos can prevent
their indiscriminate slaughter, considering that they can be killed anywhere, with no less
difficulty in one province than in another. Obviously, retaining the carabaos in one province
will not prevent their slaughter there, any more than moving them to another province will
make it easier to kill them there. As for the carabeef, the prohibition is made to apply to it as
otherwise, so says executive order, it could be easily circumvented by simply killing the
animal. Perhaps so. However, if the movement of the live animals for the purpose of
preventing their slaughter cannot be prohibited, it should follow that there is no reason either
to prohibit their transfer as, not to be flippant dead meat.

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

24

case of carabeef, and to deserving farmers through dispersal as the Director of Animal
Industrymay see fit, in the case of carabaos." (Emphasis supplied.) The phrase "may see
fit" is an extremely generous and dangerous condition, if condition it is. It is laden with
perilous opportunities for partiality and abuse, and even corruption. One searches in vain for
the usual standard and the reasonable guidelines, or better still, the limitations that the said
officers must observe when they make their distribution. There is none. Their options are
apparently boundless. Who shall be the fortunate beneficiaries of their generosity and by
what criteria shall they be chosen? Only the officers named can supply the answer, they and
they alone may choose the grantee as they see fit, and in their own exclusive discretion.
Definitely, there is here a "roving commission," a wide and sweeping authority that is not
"canalized within banks that keep it from overflowing," in short, a clearly profligate and
therefore invalid delegation of legislative powers.

The strength of democracy lies not in the rights it guarantees but in the courage of the
people to invoke them whenever they are ignored or violated. Rights are but weapons on
the wall if, like expensive tapestry, all they do is embellish and impress. Rights, as weapons,
must be a promise of protection. They become truly meaningful, and fulfill the role assigned
to them in the free society, if they are kept bright and sharp with use by those who are not
afraid to assert them.

To sum up then, we find that the challenged measure is an invalid exercise of the police
power because the method employed to conserve the carabaos is not reasonably
necessary to the purpose of the law and, worse, is unduly oppressive. Due process is
violated because the owner of the property confiscated is denied the right to be heard in his
defense and is immediately condemned and punished. The conferment on the
administrative authorities of the power to adjudge the guilt of the supposed offender is a
clear encroachment on judicial functions and militates against the doctrine of separation of
powers. There is, finally, also an invalid delegation of legislative powers to the officers
mentioned therein who are granted unlimited discretion in the distribution of the properties
arbitrarily taken. For these reasons, we hereby declare Executive Order No. 626-A
unconstitutional.

G.R. No. L-5060

We agree with the respondent court, however, that the police station commander who
confiscated the petitioner's carabaos is not liable in damages for enforcing the executive
order in accordance with its mandate. The law was at that time presumptively valid, and it
was his obligation, as a member of the police, to enforce it. It would have been impertinent
of him, being a mere subordinate of the President, to declare the executive order
unconstitutional and, on his own responsibility alone, refuse to execute it. Even the trial
court, in fact, and the Court of Appeals itself did not feel they had the competence, for all
their superior authority, to question the order we now annul.

The evidence of record fully sustains the findings of the trial court that the appellant
slaughtered or caused to be slaughtered for human consumption, the carabao described in
the information, without a permit from the municipal treasure of the municipality wherein it
was slaughtered, in violation of the provisions of sections 30 and 33 of Act No. 1147, an Act
regulating the registration, branding, and slaughter of large cattle.

The Court notes that if the petitioner had not seen fit to assert and protect his rights as he
saw them, this case would never have reached us and the taking of his property under the
challenged measure would have become afait accompli despite its invalidity. We commend
him for his spirit. Without the present challenge, the matter would have ended in that pump
boat in Masbate and another violation of the Constitution, for all its obviousness, would have
been perpetrated, allowed without protest, and soon forgotten in the limbo of relinquished
rights.

WHEREFORE, Executive Order No. 626-A is hereby declared unconstitutional. Except as

affirmed above, the decision of the Court of Appeals is reversed. The supersedeas bond is
cancelled and the amount thereof is ordered restored to the petitioner. No costs.
SO ORDERED.
January 26, 1910

THE UNITED STATES, plaintiff-appellee,

vs.
LUIS TORIBIO, defendant-appellant.
Rodriguez & Del Rosario, for appellant.
Attorney-General Villamor, for appellee.
CARSON, J.:

It appears that in the town of Carmen, in the Province of Bohol, wherein the animal was
slaughtered there is no municipal slaughterhouse, and counsel for appellant contends that
under such circumstances the provisions of Act No. 1147 do not prohibit nor penalize the
slaughter of large cattle without a permit of the municipal treasure. Sections 30, 31, 32, and
33 of the Act are as follows:
SEC. 30. No large cattle shall be slaughtered or killed for food at the municipal
slaughterhouse except upon permit secured from the municipal treasure. Before
issuing the permit for the slaughter of large cattle for human consumption, the
municipal treasurer shall require for branded cattle the production of the original

25

certificate of ownership and certificates of transfer showing title in the person

applying for the permit, and for unbranded cattle such evidence as may satisfy said
treasurer as to the ownership of the animals for which permit to slaughter has been
requested.
SEC. 31. No permit to slaughter has been carabaos shall be granted by the
municipal treasurer unless such animals are unfit for agricultural work or for draft
purposes, and in no event shall a permit be given to slaughter for food any animal
of any kind which is not fit for human consumption.
SEC. 32. The municipal treasurer shall keep a record of all permits for slaughter
issued by him, and such record shall show the name and residence of the owner,
and the class, sex, age, brands, knots of radiated hair commonly know as
remolinos or cowlicks, and other marks of identification of the animal for the
slaughter of which permit is issued and the date on which such permit is issued.
Names of owners shall be alphabetically arranged in the record, together with date
of permit.
A copy of the record of permits granted for slaughter shall be forwarded monthly to
the provincial treasurer, who shall file and properly index the same under the name
of the owner, together with date of permit.
SEC. 33. Any person slaughtering or causing to be slaughtered for human
consumption or killing for food at the municipal slaughterhouse any large cattle
except upon permit duly secured from the municipal treasurer, shall be punished
by a fine of not less than ten nor more than five hundred pesos, Philippine
currency, or by imprisonment for not less than one month nor more than six
months, or by both such fine and imprisonment, in the discretion of the court.
It is contended that the proper construction of the language of these provisions limits the
prohibition contained in section 30 and the penalty imposed in section 33 to cases (1) of
slaughter of large cattle for human consumptionin a municipal slaughter without a permit
duly secured from the municipal treasurer, and (2) cases of killing of large cattle for food in
a municipal slaughterhouse without a permit duly secured from the municipal treasurer; and
it is urged that the municipality of Carmen not being provided with a municipal
slaughterhouse, neither the prohibition nor the penalty is applicable to cases of slaughter of
large cattle without a permit in that municipality.
We are of opinion, however, that the prohibition contained in section 30 refers (1) to the
slaughter of large cattle for human consumption, anywhere, without a permit duly secured

from the municipal treasurer, and (2) expressly and specifically to the killing for food of large
cattle at a municipal slaughterhouse without such permit; and that the penalty provided in
section 33 applies generally to the slaughter of large cattle for human consumption,
anywhere, without a permit duly secured from the municipal treasurer, and specifically to the
killing for food of large cattle at a municipal slaughterhouse without such permit.
It may be admitted at once, that the pertinent language of those sections taken by itself and
examined apart from the context fairly admits of two constructions: one whereby the phrase
"at the municipal slaughterhouse" may be taken as limiting and restricting both the word
"slaughtered" and the words "killed for food" in section 30, and the words "slaughtering or
causing to be slaughtered for human consumption" and the words "killing for food" in section
33; and the other whereby the phrase "at the municipal slaughterhouse" may be taken as
limiting and restricting merely the words "killed for food" and "killing for food" as used in
those sections. But upon a reading of the whole Act, and keeping in mind the manifest and
expressed purpose and object of its enactment, it is very clear that the latter construction is
that which should be adopted.
The Act primarily seeks to protect the "large cattle" of the Philippine Islands against theft
and to make easy the recovery and return of such cattle to their proper owners when lost,
strayed, or stolen. To this end it provides an elaborate and compulsory system for the
separate branding and registry of ownership of all such cattle throughout the Islands,
whereby owners are enabled readily and easily to establish their title; it prohibits and
invalidates all transfers of large cattle unaccompanied by certificates of transfer issued by
the proper officer in the municipality where the contract of sale is made; and it provides also
for the disposition of thieves or persons unlawfully in possession, so as to protect the rights
of the true owners. All this, manifestly, in order to make it difficult for any one but the rightful
owner of such cattle to retain them in his possession or to dispose of them to others. But the
usefulness of this elaborate and compulsory system of identification, resting as it does on
the official registry of the brands and marks on each separate animal throughout the
Islands, would be largely impaired, if not totally destroyed, if such animals were requiring
proof of ownership and the production of certificates of registry by the person slaughtering
or causing them to be slaughtered, and this especially if the animals were slaughtered
privately or in a clandestine manner outside of a municipal slaughterhouse. Hence, as it
would appear, sections 30 and 33 prohibit and penalize the slaughter for human
consumption or killing for food at a municipal slaughterhouse of such animals without a
permit issued by the municipal treasurer, and section 32 provides for the keeping of detailed
records of all such permits in the office of the municipal and also of the provincial treasurer.
If, however, the construction be placed on these sections which is contended for by the
appellant, it will readily be seen that all these carefully worked out provisions for the registry
and record of the brands and marks of identification of all large cattle in the Islands would

26

prove in large part abortion, since thieves and persons unlawfully in possession of such
cattle, and naturally would, evade the provisions of the law by slaughtering them outside of
municipal slaughterhouses, and thus enjoy the fruits of their wrongdoing without exposing
themselves to the danger of detection incident to the bringing of the animals to the public
slaughterhouse, where the brands and other identification marks might be scrutinized and
proof of ownership required.
Where the language of a statute is fairly susceptible of two or more constructions, that
construction should be adopted which will most tend to give effect to the manifest intent of
the lawmaker and promote the object for which the statute was enacted, and a construction
should be rejected which would tend to render abortive other provisions of the statute and to
defeat the object which the legislator sought to attain by its enactment. We are of opinion,
therefore, that sections 30 and 33 of the Act prohibit and penalize the slaughtering or
causing to be slaughtered for human consumption of large cattle at any place without the
permit provided for in section 30.
It is not essential that an explanation be found for the express prohibition in these sections
of the "killing for food at a municipal slaughterhouse" of such animals, despite the fact that
this prohibition is clearly included in the general prohibition of the slaughter of such animals
for human consumption anywhere; but it is not improbable that the requirement for the issue
of a permit in such cases was expressly and specifically mentioned out of superabundance
of precaution, and to avoid all possibility of misunderstanding in the event that some of the
municipalities should be disposed to modify or vary the general provisions of the law by the
passage of local ordinances or regulations for the control of municipal slaughterhouse.
Similar reasoning applied to the specific provisions of section 31 of the Act leads to the
same conclusion. One of the secondary purposes of the law, as set out in that section, is to
prevent the slaughter for food of carabaos fit for agricultural and draft purposes, and of all
animals unfit for human consumption. A construction which would limit the prohibitions and
penalties prescribed in the statute to the killing of such animals in municipal
slaughterhouses, leaving unprohibited and unpenalized their slaughter outside of such
establishments, so manifestly tends to defeat the purpose and object of the legislator, that
unless imperatively demanded by the language of the statute it should be rejected; and, as
we have already indicated, the language of the statute is clearly susceptible of the
construction which we have placed upon it, which tends to make effective the provisions of
this as well as all the other sections of the Act.
It appears that the defendant did in fact apply for a permit to slaughter his carabao, and that
it was denied him on the ground that the animal was not unfit "for agricultural work or for
draft purposes." Counsel for appellant contends that the statute, in so far as it undertakes to
penalize the slaughter of carabaos for human consumption as food, without first obtaining a

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

27

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

vital blow at the material welfare of the country. large areas of productive land lay waste for
years, and the production of rice, the staple food of the inhabitants of the Islands, fell off to
such an extent that the impoverished people were compelled to spend many millions of
pesos in its importation, notwithstanding the fact that with sufficient work animals to cultivate
the fields the arable rice lands of the country could easily be made to produce a supply
more that sufficient for its own needs. The drain upon the resources of the Islands was such
that famine soon began to make itself felt, hope sank in the breast of the people, and in
many provinces the energies of the breadwinners seemed to be paralyzed by the apparently
hopeless struggle for existence with which they were confronted.
To meet these conditions, large sums of money were expended by the Government in
relieving the immediate needs of the starving people, three millions of dollars were voted by
the Congress of the United States as a relief or famine fund, public works were undertaken
to furnish employment in the provinces where the need was most pressing, and every effort
made to alleviate the suffering incident to the widespread failure of the crops throughout the
Islands, due in large measure to the lack of animals fit for agricultural work and draft
purposes.
Such measures, however, could only temporarily relieve the situation, because in an
agricultural community material progress and permanent prosperity could hardly be hoped
for in the absence of the work animals upon which such a community must necessarily rely
for the cultivation of the fields and the transportation of the products of the fields to market.
Accordingly efforts were made by the Government to increase the supply of these animals
by importation, but, as appears from the official reports on this subject, hope for the future
depended largely on the conservation of those animals which had been spared from the
ravages of the diseased, and their redistribution throughout the Islands where the need for
them was greatest.
At large expense, the services of experts were employed, with a view to the discovery and
applications of preventive and curative remedies, and it is hoped that these measures have
proved in some degree successful in protecting the present inadequate supply of large
cattle, and that the gradual increase and redistribution of these animals throughout the
Archipelago, in response to the operation of the laws of supply and demand, will ultimately
results in practically relieving those sections which suffered most by the loss of their work
animals.
As was to be expected under such conditions, the price of carabaos rapidly increase from
the three to five fold or more, and it may fairly be presumed that even if the conservative
measures now adopted prove entirely successful, the scant supply will keep the price of
these animals at a high figure until the natural increase shall have more nearly equalized
the supply to the demand.

28

Coincident with and probably intimately connected with this sudden rise in the price of
cattle, the crime of cattle stealing became extremely prevalent throughout the Islands,
necessitating the enactment of a special law penalizing with the severest penalties the theft
of carabaos and other personal property by roving bands; and it must be assumed from the
legislative authority found that the general welfare of the Islands necessitated the enactment
of special and somewhat burdensome provisions for the branding and registration of large
cattle, and supervision and restriction of their slaughter for food. It will hardly be questioned
that the provisions of the statute touching the branding and registration of such cattle, and
prohibiting and penalizing the slaughter of diseased cattle for food were enacted in the due
and proper exercise of the police power of the State; and we are of opinion that, under all
the circumstances, the provision of the statute prohibiting and penalizing the slaughter for
human consumption of carabaos fit for work were in like manner enacted in the due and
proper exercise of that power, justified by the exigent necessities of existing conditions, and
the right of the State to protect itself against the overwhelming disaster incident to the
further reduction of the supply of animals fit for agricultural work or draft purposes.
It is, we think, a fact of common knowledge in these Islands, and disclosed by the official
reports and records of the administrative and legislative departments of the Government,
that not merely the material welfare and future prosperity of this agricultural community were
threatened by the ravages of the disease which swept away the work animals during the
years prior to the enactment of the law under consideration, but that the very life and
existence of the inhabitants of these Islands as a civilized people would be more or less
imperiled by the continued destruction of large cattle by disease or otherwise. Confronted by
such conditions, there can be no doubt of the right of the Legislature to adopt reasonable
measures for the preservation of work animals, even to the extent of prohibiting and
penalizing what would, under ordinary conditions, be a perfectly legitimate and proper
exercise of rights of ownership and control of the private property of the citizen. The police
power rests upon necessity and the right of self-protection and if ever the invasion of private
property by police regulation can be justified, we think that the reasonable restriction placed
upon the use of carabaos by the provision of the law under discussion must be held to be
authorized as a reasonable and proper exercise of that power.
As stated by Mr. Justice Brown in his opinion in the case of Lawton vs. Steele (152 U.S.,
133, 136):
The extent and limits of what is known as the police power have been a fruitful
subject of discussion in the appellate courts of nearly every State in the Union. It is
universally conceded to include everything essential to the public safely, health,
and morals, and to justify the destruction or abatement, by summary proceedings,
of whatever may be regarded as a public nuisance. Under this power it has been
held that the State may order the destruction of a house falling to decay or

otherwise endangering the lives of passers-by; the demolition of such as are in the
path of a conflagration; the slaughter of diseased cattle; the destruction of decayed
or unwholesome food; the prohibition of wooden buildings in cities; the regulation
of railways and other means of public conveyance, and of interments in burial
grounds; the restriction of objectionable trades to certain localities; the compulsary
vaccination of children; the confinement of the insane or those afficted with
contagious deceases; the restraint of vagrants, beggars, and habitual drunkards;
the suppression of obscene publications and houses of ill fame; and the prohibition
of gambling houses and places where intoxicating liquors are sold. Beyond this,
however, the State may interfere wherever the public interests demand it, and in
this particular a large discretion is necessarily vested in the legislature to
determine, not only what the interests of the public require, but what measures are
necessary for the protection of such interests. (Barbier vs. Connolly, 113 U. S., 27;
Kidd vs. Pearson, 128 U. S., 1.) To justify the State in thus interposing its authority
in behalf of the public, it must appear, first, that the interests of the public generally,
as distinguished from those of a particular class, require such interference; and,
second, that the means are reasonably necessary for the accomplishment of the
purpose, and not unduly oppressive upon individuals. The legislature may not,
under the guise of protecting the public interests, arbitrarily interfere with private
business, or impose unusual and unnecessary restrictions upon lawful
occupations. In other words, its determination as to what is a proper exercise of its
police powers is not final or conclusive, but is subject to the supervision of the
court.
From what has been said, we think it is clear that the enactment of the provisions of the
statute under consideration was required by "the interests of the public generally, as
distinguished from those of a particular class;" and that the prohibition of the slaughter of
carabaos for human consumption, so long as these animals are fit for agricultural work or
draft purposes was a "reasonably necessary" limitation on private ownership, to protect the
community from the loss of the services of such animals by their slaughter by improvident
owners, tempted either by greed of momentary gain, or by a desire to enjoy the luxury of
animal food, even when by so doing the productive power of the community may be
measurably and dangerously affected.
Chief Justice Redfield, in Thorpe vs. Rutland & Burlington R. R. Co. (27 Vt., 140), said (p.
149) that by this "general police power of the State, persons and property are subjected to
all kinds of restraints and burdens, in order to secure the general comfort, health, and
prosperity of the State; of the perfect right in the legislature to do which no question ever
was, or, upon acknowledge and general principles, ever can be made, so far as natural
persons are concerned."

29

And Cooley in his "Constitutional Limitations" (6th ed., p. 738) says:

It would be quite impossible to enumerate all the instances in which the police
power is or may be exercised, because the various cases in which the exercise by
one individual of his rights may conflict with a similar exercise by others, or may be
detrimental to the public order or safety, are infinite in number and in variety. And
there are other cases where it becomes necessary for the public authorities to
interfere with the control by individuals of their property, and even to destroy it,
where the owners themselves have fully observed all their duties to their fellows
and to the State, but where, nevertheless, some controlling public necessity
demands the interference or destruction. A strong instance of this description is
where it becomes necessary to take, use, or destroy the private property of
individuals to prevent the spreading of a fire, the ravages of a pestilence, the
advance of a hostile army, or any other great public calamity. Here the individual is
in no degree in fault, but his interest must yield to that "necessity" which "knows no
law." The establishment of limits within the denser portions of cities and villages
within which buildings constructed of inflammable materials shall not be erected or
repaired may also, in some cases, be equivalent to a destruction of private
property; but regulations for this purpose have been sustained notwithstanding this
result. Wharf lines may also be established for the general good, even though they
prevent the owners of water-fronts from building out on soil which constitutes
private property. And, whenever the legislature deem it necessary to the protection
of a harbor to forbid the removal of stones, gravel, or sand from the beach, they
may establish regulations to that effect under penalties, and make them applicable
to the owners of the soil equally with other persons. Such regulations are only "a
just restraint of an injurious use of property, which the legislature have authority" to
impose.
So a particular use of property may sometimes be forbidden, where, by a change
of circumstances, and without the fault of the power, that which was once lawful,
proper, and unobjectionable has now become a public nuisance, endangering the
public health or the public safety. Milldams are sometimes destroyed upon this
grounds; and churchyards which prove, in the advance of urban population, to be
detrimental to the public health, or in danger of becoming so, are liable to be
closed against further use for cemetery purposes.
These citations from some of the highest judicial and text-book authorities in the United
States clearly indicate the wide scope and extent which has there been given to the doctrine
us in our opinion that the provision of the statute in question being a proper exercise of that
power is not in violation of the terms of section 5 of the Philippine Bill, which provide that "no
law shall be enacted which shall deprive any person of life, liberty, or property without due

process of law," a provision which itself is adopted from the Constitution of the United
States, and is found in substance in the constitution of most if not all of the States of the
Union.
The judgment of conviction and the sentence imposed by the trial court should be affirmed
with the costs of this instance against the appellant. So ordered.

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

30

expressly forbids the use of an injunction to stay the collection of any internal revenue tax;
the second provides a remedy for any wrong in connection with such taxes, and this remedy
was intended to be exclusive, thereby precluding the remedy by injunction, which remedy is
claimed to be constitutional. The two sections, then, involve the right of a dissatisfied
taxpayers to use an exceptional remedy to test the validity of any tax or to determine any
other question connected therewith, and the question whether the remedy by injunction is
exceptional.
Preventive remedies of the courts are extraordinary and are not the usual remedies. The
origin and history of the writ of injunction show that it has always been regarded as an
extraordinary, preventive remedy, as distinguished from the common course of the law to
redress evils after they have been consummated. No injunction issues as of course, but is
granted only upon the oath of a party and when there is no adequate remedy at law. The
Government does, by section 139 and 140, take away the preventive remedy of injunction, if
it ever existed, and leaves the taxpayer, in a contest with it, the same ordinary remedial
actions which prevail between citizen and citizen. The Attorney-General, on behalf of the
defendant, contends that there is no provisions of the paramount law which prohibits such a
course. While, on the other hand, counsel for plaintiffs urge that the two sections are
unconstitutional because (a) they attempt to deprive aggrieved taxpayers of all substantial
remedy for the protection of their property, thereby, in effect, depriving them of their property
without due process of law, and (b) they attempt to diminish the jurisdiction of the courts, as
conferred upon them by Acts Nos. 136 and 190, which jurisdiction was ratified and
confirmed by the Act of Congress of July 1, 1902.

In the first place, it has been suggested that section 139 does not apply to the tax in
question because the section, in speaking of a "tax," means only legal taxes; and that an
illegal tax (the one complained of) is not a tax, and, therefore, does not fall within the
inhibition of the section, and may be restrained by injunction. There is no force in this
suggestion. The inhibition applies to all internal revenue taxes imposes, or authorized to be
imposed, by Act No. 2339. (Snyder vs. Marks, 109 U.S., 189.) And, furthermore, the mere
fact that a tax is illegal, or that the law, by virtue of which it is imposed, is unconstitutional,
does not authorize a court of equity to restrain its collection by injunction. There must be a
further showing that there are special circumstances which bring the case under some well
recognized head of equity jurisprudence, such as that irreparable injury, multiplicity of suits,
or a cloud upon title to real estate will result, and also that there is, as we have indicated, no
adequate remedy at law. This is the settled law in the United States, even in the absence of
statutory enactments such as sections 139 and 140. (Hannewinkle vs. Mayor, etc., of
Georgetown, 82 U.S., 547; Indiana Mfg. Co. vs. Koehne, 188 U.S., 681; Ohio Tax cases,
232 U. S., 576, 587; Pittsburgh C. C. & St. L. R. Co. vs. Board of Public Works, 172 U. S.,
32; Shelton vs.Plat, 139 U.S., 591; State Railroad Tax Cases, 92 U. S., 575.) Therefore, this
branch of the case must be controlled by sections 139 and 140, unless the same be held
unconstitutional, and consequently, null and void.
The right and power of judicial tribunals to declare whether enactments of the
legislature exceed the constitutional limitations and are invalid has always been
considered a grave responsibility, as well as a solemn duty. The courts invariably
give the most careful consideration to questions involving the interpretation and
application of the Constitution, and approach constitutional questions with great
deliberation, exercising their power in this respect with the greatest possible
caution and even reluctance; and they should never declare a statute void, unless
its invalidity is, in their judgment, beyond reasonable doubt. To justify a court in
pronouncing a legislative act unconstitutional, or a provision of a state constitution
to be in contravention of the Constitution of the United States, the case must be so
clear to be free from doubt, and the conflict of the statute with the constitution must
be irreconcilable, because it is but a decent respect to the wisdom, the integrity,
and the patriotism of the legislative body by which any law is passed to presume in
favor of its validity until the contrary is shown beyond reasonable doubt. Therefore,
in no doubtful case will the judiciary pronounce a legislative act to be contrary to
the constitution. To doubt the constitutionality of a law is to resolve the doubt in
favor of its validity. (6 Ruling Case Law, secs. 71, 72, and 73, and cases cited
therein.)
It is also the settled law in the United States that "due process of law" does not always
require, in respect to the Government, the same process that is required between citizens,
though it generally implies and includes regular allegations, opportunity to answer, and a

31

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.

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."

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."

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."

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'

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

32

system was continued in force by the military authorities, with but few changes, until the
Civil Government assumed charge of the subject. The principal sources of revenue under
the Spanish regime were derived from customs receipts, the so-called industrial taxes, the
urbana taxes, the stamp tax, the personal cedula tax, and the sale of the public domain. The
industrial and urbana taxes constituted practically an income tax of some 5 per cent on the
net income of persons engaged in industrial and commercial pursuits and on the income of
owners of improved city property. The sale of stamped paper and adhesive stamp tax. The
cedula tax was a graduated tax, ranging from nothing up to P37.50. The revenue derived
from the sale of the public domain was not considered a tax. The American authorities at
once abolished the cedula tax, but later restored it in a modified form, charging for each
cedula twenty centavos, an amount which was supposed to be just sufficient to cover the
cost of issuance. The urbana tax was abolished by Act No. 223, effective September 6,
1901.
The "Municipal Code" (Act No. 82) and the Provincial Government Act (No. 83), both
enacted in 1901, authorize municipal councils and provincial boards to impose an ad
valorem tax on real estate. The Municipal Code did not apply to the city of Manila. This city
was given a special charter (Act No. 183), effective August 30, 1901; Under this charter the
Municipal Board of Manila is authorized and empowered to impose taxes upon real estate
and, like municipal councils, to license and regulate certain occupations. Customs matters
were completely reorganized by Act No. 355, effective at the port of Manila on February 7,
1902, and at other ports in the Philippine Islands the day after the receipt of a certified copy
of the Act. The Internal Revenue Law of 1904 (Act No. 1189), repealed all existing laws,
ordinances, etc., imposing taxes upon the persons, objects, or occupations taxed under that
act, and all industrial taxes and stamp taxes imposed under the Spanish regime were
eliminated, but the industrial tax was continued in force until January 1, 1905. This Internal
Revenue Law did not take away from municipal councils, provincial boards, and the
Municipal Board of the city of Manila the power to impose taxes upon real estate. This Act
(No. 1189), with its amendments, was repealed by Act No. 2339, an act "revising and
consolidating the laws relative to internal revenue."
Section 84 of Act No. 82 provides that "No court shall entertain any suit assailing the validity
of a tax assessed under this act until the taxpayer shall have paid, under protest, the taxes
assessed against him, . . . ."
This inhibition was inserted in section 17 of Act No. 83 and applies to taxes imposed by
provincial boards. The inhibition was not inserted in the Manila Charter until the passage of
Act No. 1793, effective October 12, 1907. Act No. 355 expressly makes the payment of the
exactions claimed a condition precedent to a resort to the courts by dissatisfied importers.
Section 52 of Act No. 1189 provides "That no courts shall have authority to grant an
injunction restraining the collection of any taxes imposed by virtue of the provisions of this

Act, but the remedy of the taxpayer who claims that he is unjustly assessed or taxed shall
be by payment under protest of the sum claimed from him by the Collector of Internal
Revenue and by action to recover back the sum claimed to have been illegally collected."
Sections 139 and 140 of Act No. 2339 contain, as we have indicated, the same prohibition
and remedy. The result is that the courts have been expressly forbidden, in every act
creating or imposing taxes or imposts enacted by the legislative body of the Philippines
since the American occupation, to entertain any suit assailing the validity of any tax or
impost thus imposed until the tax shall have been paid under protest. The only taxes which
have not been brought within the express inhibition were those included in that part of the
old Spanish system which completely disappeared on or before January 1, 1905, and
possibly the old customs duties which disappeared in February, 1902.
Section 56 of the Organic Act (No. 136), effective June 16, 1901, provides that "Courts of
First Instance shall have original jurisdiction:
xxx

xxx

xxx

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

xxx

xxx

7. Said courts and their judges, or any of them, shall have power to issue writs of
injunction, mandamus,certiorari, prohibition, quo warranto, and habeas corpus in
their respective provinces and districts, in the manner provided in the Code of Civil
Procedure.
The provisions of the Code of Civil Procedure (Act No. 190), effective October 1, 1901,
which deals with the subject of injunctions, are sections 162 to 172, inclusive. Injunctions,
as here defined, are of two kinds; preliminary and final. The former may be granted at any
time after the commencement of the action and before final judgment, and the latter at the
termination of the trial as the relief or part of the relief prayed for (sec. 162). Any judge of the
Supreme Court may grant a preliminary injunction in any action pending in that court or in
any Court of First Instance. A preliminary injunction may also be granted by a judge of the
Court of First Instance in actions pending in his district in which he has original jurisdiction
(sec. 163). But such injunctions may be granted only when the complaint shows facts
entitling the plaintiff to the relief demanded (sec. 166), and before a final or permanent
injunction can be granted, it must appear upon the trial of the action that the plaintiff is
entitled to have commission or continuance of the acts complained of perpetually restrained

33

(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

34

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

35

1885, which section reads as follows: "No injunction shall issue to stay proceedings for the
assessment or collection of taxes under this Act."
It was claimed by the complainants that the above quoted provisions of the Act of 1885 were
unconstitutional and void as being in conflict with article 6, sec. 8, of the Constitution, which
provides that: "The circuit courts shall have original jurisdiction in all matters, civil and
criminal, not excepted in this Constitution, and not prohibited by law. ... They shall also have
power to issue writs of habeas corpus, mandamus, injunction, quo warranto, certiorari, and
other writs necessary to carry into effect their orders, judgments, and decrees."
Mr. Justice Champlin, speaking for the court, said: "I have no doubt that the Legislature has
the constitutional authority, where it has provided a plain, adequate, and complete remedy
at law to recover back taxes illegally assessed and collected, to take away the remedy by
injunction to restrain their collection."
Section 9 of the Philippine Bill reads in part as follows: "That the Supreme Court and the
Courts of First Instance of the Philippine Islands shall possess and exercise jurisdiction as
heretofore provided and such additional jurisdiction as shall hereafter be prescribed by the
Government of said Islands, subject to the power of said Government to change the
practice and method of procedure."
It will be seen that this section has not taken away from the Philippine Government the
power to change the practice and method of procedure. If sections 139 and 140, considered
together, and this must always be done, are nothing more than a mode of procedure, then it
would seem that the Legislature did not exceed its constitutional authority in enacting them.
Conceding for the moment that the duly authorized procedure for the determination of the
validity of any tax, impost, or assessment was by injunction suits and that this method was
available to aggrieved taxpayers prior to the passage of Act No. 2339, may the Legislature
change this method of procedure? That the Legislature has the power to do this, there can
be no doubt, provided some other adequate remedy is substituted in lieu thereof. In
speaking of the modes of enforcing rights created by contracts, the Supreme Court of the
United States, in Tennessee vs. Sneed, supra, said: "The rule seems to be that in modes of
proceedings and of forms to enforce the contract the Legislature has the control, and may
enlarge, limit or alter them, provided that it does not deny a remedy, or so embarrass it with
conditions and restrictions as seriously to impair the value of the right."
In that case the petitioner urged that the Acts of 1873 were laws impairing the obligation of
the contract contained in the charter of the Bank of Tennessee, which contract was entered
into with the State in 1838. It was claimed that this was done by placing such impediments
and obstructions in the way of its enforcement, thereby so impairing the remedies as
practically to render the obligation of no value. In disposing of this contention, the court said:

"If we assume that prior to 1873 the relator had authority to prosecute his claim against the
State by mandamus, and that by the statutes of that year the further use of that form was
prohibited to him, the question remains. whether an effectual remedy was left to him or
provided for him. We think the regulation of the statute gave him an abundant means of
enforcing such right as he possessed. It provided that he might pay his claim to the collector
under protest, giving notice thereof to the Comptroller of the Treasury; that at any time
within thirty days thereafter he might sue the officer making the collection; that the case
should be tried by any court having jurisdiction and, if found in favor of the plaintiff on the
merits, the court should certify that the same was wrongfully paid and ought to be refunded
and the Comptroller should thereupon issue his warrant therefor, which should be paid in
preference to other claim on the Treasury."
But great stress is laid upon the fact that the plaintiffs in the case under consideration are
unable to pay the taxes assessed against them and that if the law is enforced, they will be
compelled to suspend business. This point may be best answered by quoting from the case
of Youngblood vs. Sexton (32 Mich., 406), wherein Judge Cooley, speaking for the court,
said: "But if this consideration is sufficient to justify the transfer of a controversy from a court
of law to a court of equity, then every controversy where money is demanded may be made
the subject of equitable cognizance. To enforce against a dealer a promissory note may in
some cases as effectually break up his business as to collect from him a tax of equal
amount. This is not what is known to the law as irreparable injury. The courts have never
recognized the consequences of the mere enforcement of a money demand as falling within
that category."
Certain specified sections of Act No. 2339 were amended by Act No. 2432, enacted
December 23, 1914, effective January 1, 1915, by imposing increased and additional taxes.
Act No. 2432 was amended, were ratified by the Congress of the United States on March 4,
1915. The opposition manifested against the taxes imposed by Acts Nos. 2339 and 2432 is
a matter of local history. A great many business men thought the taxes thus imposed were
too high. If the collection of the new taxes on signs, signboards, and billboards may be
restrained, we see no well-founded reason why injunctions cannot be granted restraining
the collection of all or at least a number of the other increased taxes. The fact that this may
be done, shows the wisdom of the Legislature in denying the use of the writ of injunction to
restrain the collection of any tax imposed by the Acts. When this was done, an equitable
remedy was made available to all dissatisfied taxpayers.
The question now arises whether, the case being one of which the court below had no
jurisdiction, this court, on appeal, shall proceed to express an opinion upon the validity of
provisions of subsection (b) of section 100 of Act No. 2339, imposing the taxes complained
of. As a general rule, an opinion on the merits of a controversy ought to be declined when
the court is powerless to give the relief demanded. But it is claimed that this case is, in

36

many particulars, exceptional. It is true that it has been argued on the merits, and there is
no reason for any suggestion or suspicion that it is not a bona fide controversy. The legal
points involved in the merits have been presented with force, clearness, and great ability by
the learned counsel of both sides. If the law assailed were still in force, we would feel that
an opinion on its validity would be justifiable, but, as the amendment became effective on
January 1, 1915, we think it advisable to proceed no further with this branch of the case.
The next question arises in connection with the supplementary complaint, the object of
which is to enjoin the Collector of Internal Revenue from removing certain billboards, the
property of the plaintiffs located upon private lands in the Province of Rizal. The plaintiffs
allege that the billboards here in question "in no sense constitute a nuisance and are not
deleterious to the health, morals, or general welfare of the community, or of any persons."
The defendant denies these allegations in his answer and claims that after due investigation
made upon the complaints of the British and German Consuls, he "decided that the
billboard complained of was and still is offensive to the sight, and is otherwise a nuisance."
The plaintiffs proved by Mr. Churchill that the "billboards were quite a distance from the road
and that they were strongly built, not dangerous to the safety of the people, and contained
no advertising matter which is filthy, indecent, or deleterious to the morals of the
community." The defendant presented no testimony upon this point. In the agreed statement
of facts submitted by the parties, the plaintiffs "admit that the billboards mentioned were and
still are offensive to the sight."
The pertinent provisions of subsection (b) of section 100 of Act No. 2339 read: "If after due
investigation the Collector of Internal Revenue shall decide that any sign, signboard, or
billboard displayed or exposed to public view is offensive to the sight or is otherwise a
nuisance, he may by summary order direct the removal of such sign, signboard, or billboard,
and if same is not removed within ten days after he has issued such order he my himself
cause its removal, and the sign, signboard, or billboard shall thereupon be forfeited to the
Government, and the owner thereof charged with the expenses of the removal so effected.
When the sign, signboard, or billboard ordered to be removed as herein provided shall not
comply with the provisions of the general regulations of the Collector of Internal Revenue,
no rebate or refund shall be allowed for any portion of a year for which the tax may have
been paid. Otherwise, the Collector of Internal Revenue may in his discretion make a
proportionate refund of the tax for the portion of the year remaining for which the taxes were
paid. An appeal may be had from the order of the Collector of Internal Revenue to the
Secretary of Finance and Justice whose decision thereon shall be final."
The Attorney-General, on behalf of the defendant, says: "The question which the case
presents under this head for determination, resolves itself into this inquiry: Is the
suppression of advertising signs displayed or exposed to public view, which are admittedly
offensive to the sight, conducive to the public interest?"

And cunsel for the plaintiffs states the question thus: "We contend that that portion of
section 100 of Act No. 2339, empowering the Collector of Internal Revenue to remove
billboards as nuisances, if objectionable to the sight, is unconstitutional, as constituting a
deprivation of property without due process of law."
From the position taken by counsel for both sides, it is clear that our inquiry is limited to the
question whether the enactment assailed by the plaintiffs was a legitimate exercise of the
police power of the Government; for all property is held subject to that power.
As a consequence of the foregoing, all discussion and authorities cited, which go to the
power of the state to authorize administrative officers to find, as a fact, that legitimate
trades, callings, and businesses are, under certain circumstances, statutory nuisances, and
whether the procedure prescribed for this purpose is due process of law, are foreign to the
issue here presented.
There can be no doubt that the exercise of the police power of the Philippine Government
belongs to the Legislature and that this power is limited only by the Acts of Congress and
those fundamentals principles which lie at the foundation of all republican forms of
government. An Act of the Legislature which is obviously and undoubtedly foreign to any of
the purposes of the police power and interferes with the ordinary enjoyment of property
would, without doubt, be held to be invalid. But where the Act is reasonably within a proper
consideration of and care for the public health, safety, or comfort, it should not be disturbed
by the courts. The courts cannot substitute their own views for what is proper in the
premises for those of the Legislature. In Munn vs. Illinois (94 U.S., 113), the United States
Supreme Court states the rule thus: "If no state of circumstances could exist to justify such
statute, then we may declare this one void because in excess of the legislative power of this
state; but if it could, we must presume it did. Of the propriety of legislative interference,
within the scope of the legislative power, a legislature is the exclusive judge."
This rule very fully discussed and declared in Powell vs. Pennsylvania (127 U.S., 678)
"oleo-margarine" case. (See also Crowley vs. Christensen, 137 U.S., 86, 87;
Camfield vs. U.S., 167 U.S., 518.) While the state may interfere wherever the public
interests demand it, and in this particular a large discretion is necessarily vested in the
legislature to determine, not only what the interest of the public require, but what measures
are necessary for the protection of such interests; yet, its determination in these matters is
not final or conclusive, but is subject to the supervision of the courts. (Lawton vs. Steele,
152 U.S., 133.) Can it be said judicially that signs, signboards, and billboards, which are
admittedly offensive to the sight, are not with the category of things which interfere with the
public safety, welfare, and comfort, and therefore beyond the reach of the police power of
the Philippine Government?

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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.)

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.)

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.)

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."

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.)

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.)

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

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

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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

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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.

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