Public corporations (continued from the February issue)

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Part of The Lawyers Journal

Title: Public corporations (continued from the February issue)
extracted text: PUBLIC CORPORATIONS (Continued from tlw Febrnary Issue) [§ 2Gl] 5. Pa1·ticular regulations. - a. fo general, ''Wh;Ie there is some C'illflict as to whut grBnt of authority will justify particulat· regulations, under the power to regulate and control markets municipal corporations may enact and enforce a~J r egulations which are desirable for the protertion of public health, and they mny adopt and e:iforce any :reasonable and proper rules and rtgulaticns in regard b the market and the business transacted therein. The corporation may enact any reasonable regulation necessary to pre!'crve the cleanliness of market places; may confine the sale of particular articles to certain designated stands or portions of the market and prevent their ~ale elsewhere; may limit the sales in e. m:irket to sp(!('ific articles; may forbid df'liveriug within the municipal limits meat that. has not been exposed for sale in !he public market; may prohibit the sale of groceries in meat and vcgf!table markets; may prohibit the sale of less than a spe<:ified quantity of meat outside of market stulls; may prohibit the standing wagons comaining perishable produce within the mar. ket limits for over a specified period of time between specified hours unless permitted by a designated market official; may prohibit the selling of provisions at the public market .which have been previously purchased within the municipal boundaries out~ide of the markets; may regulate market hours; or may require diseased or unwholesome articles to be removed. The corporation cannot prnhibit the sale of perishable articlC's entirely within the municipal limits. "The ordinary rules of co11struction apply to the construction of statutes e.nd ordinances or regulations relating to the establishment and regulation of markets.1112a Jlliaitration. The municipal council of Daet, Province of Camarines Norte, passed Ordinance No. 7, which was duly approved by the provincial board on June 12, 1948, "prescribing the zonification of the public markets, an<l rules a.nd regulations with regard to the rights to occupy space in the market buildings, and penaltiPs therefor." The pertinent portions of said ordinance 11re as follows: "Sec. 2. All cecupnnt!I in the building publicly kn<>wn as market proper, should obsen'e strictly the regulations with regards to the zonification in the following manner: "Zone 1. Market Building No. 1. - Opposite M:i.rket Tienda11 block A and B will be designated to all merchants or dealerF of dry goods and general merchandise; "Zone 2. Market Building No. 2. - Opposite Market Tiendas block C and D will be designated to all merchants dealing in "Cafeterias',' 'Carcnderias' and 'Sari-Sari'; and "Zone 3. Market Building No. 3 - New Market Building will be designated to all merchants of dry and fresh fishes, meat and vegetable vendors. Sec. 3. It is hereby prohibiter! for any merehe.nts or d<'alers in goods to sell his goods and wares in the zone not alloc:i.ted for the purpose as regulated above. It :!ppears that prior to the pas!;age of said Municipal Ordinance No. 7 and the approval of Resolution No. 104 of the municipal c'luncil of Daet, the public market of the municipality consisted of only two buildings designated as Nos. 1 and 2. A third building known a~ building No. 3 h<iving been complet<.d, the nmnicipal council p<issed the ordinance in question and by said Resolution No. 104 decided to enforce the provisions of said ordin~cc by requiring the merchants and vendors occupying the places in 128 43 c. J. 396-397. possible, and the proYisions of this article have this policy in mind. 3. There may be cases where a person intends 1.o have property which he mlly acquire subsequent to the making of his will to be distributed according to his own perscnal wishes. Section 615 of the Code of Civil Procedure contains the same provisions although O?! real tslu.te only. <See n.lso Article 596, LOWt'f Ca11ada). ARTICLE 891 This Article provides for the "ReserYa Troncal" which was eliminated from the original draft of the Code Commission, but Buildings Nos. 1 and 2 to transfer their places of busir.ess in accordance with the classification provided for in section 2 of the ordinance, so that "dealers or merchants of dry guods end general merchandise" shall be located in Zone 1 CBuilding No. 1); "merchants operating cafeterias, carenderias and sari-sciri" are assigned to Zone NCt. 2 or Market Building No. 2; and merchants dealing in "dry and fresh fishes, meat and vegetables" sh'.lll operate their place of business in Zone 3, known as l\larket Building No. 3. The atove.quoted section 3 of the Ordinance exp!'cssly prohibits "any merchants or ckaler in goods to sell his goods and wares in the zone not allocated fer the purpose as regulated above." Prior to the completion of Building No. 3 and the passa.ge in 1948 of l\.Iunicipal OrdinanC'e No. 7, the petitioners, engaged in the business of caren<leria and cafeteria, were located in Building No. 1, and they contended that Municipal Ordinance No. 7 which required and compelled them to transfer to another building, is nnconstitutiona.l, illegal, null and void, because it is unjust, discriminatory, unreasonable and confiscatory in so far as it refers to the plaintiffs and their business in the market stall occupied hy them in the Market Building No. 1 of the municipality or Daet. They filed a complaint against the munieipa.lity of Daet, praying that said Ordinance No. 7 be declared uncC'nstitufonal, illegal null and void, and that, pending the d~termination of this case, a writ of preliminary il'junction be issued against the defendants, its in!ltrumentalies, agents, officers and representatives, enjoining them from evicting, removing or throwing out the plaintiffs frorr. their rm:rket stalls in Market Ruilding No. 1 of Dact, and that after trial of said case the injunction be made permanent. After hearing, the Court of First Instance of Camarines Norte upheld the constitutionality and legDlity of the ordinance in question nnd declared that the municipal council of Daet, being empowered to enact said ordinance and the same ha,•ing been enaeted for the good of the public, the same is not null, void and unconstitutionP~l unrl con~ficator}' as contended by the petitioners. The court, therl'fore, dismissed the complaint without pronouncement as to costs. · In the appeal, the plaintiffs-appellants, besides assailing the constitutionality and .legality of the ordinance, contend thr.t the court should have found that the plaintiffs are entitled to continue in the occupancy of their stalls in the market of Daet in accordance with Republic Act No. 37 and should have perpetnally enjoined the d~fendant, its officers n.nd n:!presentatives, from evicting and throwing them out from their market stalls in Building No. 1. There is no dispute as to the facts. It has been established at th~ hearing that these nppellant.1 were occupants of stall in Building No. 1 of the market of the municipality of Daet, a.nd were E'ngaged in the business of conducting cafeterias and carenderias r;rior to the passage of Resolutio~ No. 104. series of 1948, '~nercLy the municilml council of Daet seeks to enforee the provisions of :Municipal Ordinance No. 7. With 1·efert'nce to the contenti')n of appellants that Republic Act No. 37 is applicable to them, t'.!Ur perusal thereof shows that it can not be of any help to their case, because said act has for its purpose the "granting preference to Filipino citizens in the lease of pi.blic market stalls:" In the case at bar, th•! issue of the nationality of the stallholders has not been rai~ed by app~llants, an".! is nvt at all mentioned in the provisions of Ordinance No. 7 and Resolution No. 104 of the municipal council of Daet, and under the provisions of said ordinance the appellants are not divested of the The Code Cl)mmission would be glad to see this Article elimi . nated and repealed as recommended in the House Bill No. 1019. '£he presence of this article in the new Civil Code contravenes t he fundamental philosophy of the law on successio:-i - socializatic.n of ownership of property, economic stability, and elimination of feudalistic heirarchy, as explained in the Report of the Commission, p. 116-117. Respectfully submitted, PEDRO Y. YLAGAN l'i!ember, Code ·commission inserted by the House of Representatives. Manila, February 20, 1951. March 31, 1954 THE LAWYERS JOURNAL 155 possession of their stalls in the m'a.rket. Held: Regarding the alleged unconstitutionality and ilkgat;ty, de., of the ordinance in question, upon close scrutiny of its p1·0visions, its wording and its purpose, we find nothing that would support the contentions of appellants. The)' can not deny that under the general welfare clause contained in Sf'ction 2238 of the Revised Administration Code, the municipal council of Dact, is empowered to "enact ordinances and make regulations, not repugnant to law, as may be necessary and proper to carry into effect and discharge the powers and duties conferred upon it by law and such as shall seem necessary and proper to provide for the hc:..lth nnd safety, promote the prosperity, improve the morals, 1 1ea.ce, good order, comfort, and convenience of the municipality and the inhabitants thereof, and for the protection of property therein." "Ordinance No. 7 provides for the good, comfort, and convenience of the public and the market vendors as well. By the z.onification and classification provided for by its m·ovisions, the public, the consumers, can easily locate the place where they can find the p:i.rticular goods or commodities they want to buy. Even the merchants and wndors oc"cupying the stalls nre likewise benefited by the zonificntion and classification provided for in the ordinance, in that they will be placed where they should be!ong, ir.stead of being mingled in the .snme building with vendors or merchants dealing in goods or rnercha.ndise or foodstuffs or goods iu which they are dealing. To be sure, these appellants who according to the petition, :i.re dealing in cafeterias and carender m!I, and consequentlr their customers, will not feel happy to be am.ong fish Yendors or the like. "That the a.ct performed by the municipality of Daet in enacting Municipal Ordinance No. 7, is entir!'!IY within the power of the municipal corporation, is decided by the Supreme Court in various similar c:i.ses <Seng Kee & Co. vs. Earnshaw, 56 Phil., 204). In U.S. Salaveria (39 Phil. 102) which holds that the presumptio11 is all in favor of the validity of the ordinance, foe Supreme Court held: "Although such regulation often interferes with an owner's desire as to the use of his property and hamper his fr~dom ·in regard to it, they have generally been sustained as valid exercist; of the police power, provided that there is nothing arbitrary or unrensonable in the laying out of the zones, and that 110 unconh olled discretion is vested in an officer as to 'the grant or refusd of building permits. "Not only the State effectuates its purpose through the exer. cise of the police power, but the municip:i.lities docs also. Like thE State, the police power of a municipality extends to all matters affecting the peace, order, health, morals, convenience, comfort, and safety of its citizens - the security of social order - the best and highest interests of the municipality. The best considerea decisions have tended to broaden the scope of action of the municipality in dealing with police offenses. The public welfare is rightly m9.de the basis of construction.''129 [§ 2G2] 6. Sales outside mn.rkcts. "Asi a genernl rule a. municipal corporation may prohibit by C'rdinance or by-law the sale of marketable articles within certain limits <Jr during certain hours except at the established market. And it f9 withm the power ::if th1:: legisla.turc to authorize municipal corporations to do so. While there are decisions which deny the right of a municipal corpi:.ration k prohibit selling outside of the public markets, under a general 1iower to regulate and control m:trkets, it is ordinarily hc!d that such restrictive regulations as to selling outside of market limits may be made under a general power to establish and regulate markets, and that, where adequate market facilities are furnished, s•Jch regulations ar~ not unreasonable or in restraint of trade but a r·roper regulation of it, although the rule is otherwise where mar. ket facilities are not furnished. In some cases such ordinances or by-laws have been held void on the ground that t~r:y were unreasonable and m restraint of trade. The validity of such ordinances and .by-laws as being in restraint of trade obviously de. prnds very largely upon the extent of the prohibition or regul'lt ion contained in the particular ordinance or by-law, it being well £.:!ttled that such ordinances or by-laws must be ressonable. The <1rdinance or by-law must fall within the scope of the power grant. ed. i_;:ore particularly municipal corporations mar, when duly au129 Ebona et 111•. va. Mun. of Daet, 47 O.G. 1147 9-348~. thorized, regulate private markets, prohibit the maintainance t)f private markets within certain distance of a. public market, prohi)!it the sale of anything but fruit by keepe£s of fruit stand:;i with. in two thousand one hundred feet. of the m:i.rket, or prescribe such i·cgulations as ~ the tim<: and place of selling outside of the mai·kct limits as the general welfare of the municipality ma.y de. mand. It seems to be uniformly held that under a power to regulate the vending of meats, etc., a municipality may prevent thei1· being retailed outside of the public markets. A municipality may also, under a power to prevent the obstruction of streets, prohibit the standing of wagons for the sale of market produce within c«rtain limits, or 11rcvent any street vending without a permit. It may prescribe that huckster wagonsi shall not stand in the mai·kct place longer than a prescribed time."130 end 1:!~:~:~!~0~~ t~e "~::~ :;d,;~~ ~~~;:n~:r~~n~a:::~ fo:~~::;~: sold meat at a place other fhan the public market in violation of a municip:i.I ordinance of Catannan, Samar. They appealed, contending that the said ordinance was discriminatory, unreasonable and oppressive: discriminatory, because its provisions applied exclusively to the defendant Maria Vda. de Saban·e as ma.y be seen from a r eading of article 1, which prohibito.>d butchers and uny other person from selling meat in any place except the public market; . and from that of nl'ticle 2, which prohibited fishermen or anr other person from se\ling fresh fish and other commodities in the public streets of the pobla,cion, thereby permitting their sale in other place!; be<"ause the public market of Cntarman was located in an unsanitary place, in the ontskirt of the town an<I amidst muddy, dirty, and obnoxious surroundings to which nobody went to sell foodstuffs. The municipality having failed to keep it in proper condition for la.ck of funds, and its locetion not being easily accessible to the health authorities for their inspection; and oppressive because the prohibition to sell meat in any place other than the public market compelled the meat vendors to offer their goods for snle in one determined place without taking into ac::ount the peculiar conditions prevailing in the small town of Catarman, the insanitary condition of its market, and, tihove all, the absence of vendors and buyers therein, thus forcing said meat vendors to move their business to another place where there were no people, no other vendors, merchants or customers. Held; ''Although the ordinance in question makes a d:stinction by prohibiting in its article 1 butchers and meat vendors from selling meat outside of the public market and in article 2 the fishermen and fish vendors from selling fi sh in the public streets e,,f the poblacion, said distinction is not unreasonable because in ;:o far as the public health is concerned there is a great difference between meat and fi sh in their susceptibility to decay, especially where no ice is used to preserve them. "In the case of People vs. Monti! C53 Phil., 580), this court laid down the following do<"trinc: "'l. MUNICIPAL CORPORATION MAY PROHIBIT. - As a general rule, a municipal corporation may prohibit by ordinance the sale of marketable articles within certain limits or during certuin hours outside of nn established market. "'2. WHAT MAY BE DONE UNDER A GENERAL POWER. - Under a general power to regulate and control markets, restrictive regulations a.3 to selling outside the market limits may be made under a genel'al power to establish and regulate markets, and where adequate market facilities are furnished, such regulations arc not unreasonable or in restraint uf trade, although the rule is ctherwise where market facilities arc not furnished.' "The ordinance in question, therefore, is not unconstitutional inasmuch as the classification is based on a substantial distinction, which constitutes a real difference; is germane to the purposes of the: ordinance; is not confined to existing conditions only; and ap. plies equally to all fishermen and fish vendors and to all butchers and meat vendors <People vs. Chan, 38 Off. Gaz., 1539; 12 Corpus J uris, 1128, sec. 855.) "The fact that the public market is dirty &nd unsanitary and is located in a muddy and filthy place to which no people go to make purchases, does not render the ordinance oppressive and unreasonable. It being a duty of the municip~lity to maintain its public market in sanitary condition and the municipal council be130 43 C.J . 397-398. 156 THE LAWYERS JOURNAL M:ll'ch Sl, 1954 The section in which the a.hove-quoted provision is to be found is entitled "Certain legislative powers of mat1datory chC11"<1cter". [§ 269) <2> i\lunicipalitic;J m specially organized provinces. ·'The municip~l council shall have power by ordinance or resolution: . . ... "Caa) NuisM1ces. - To declare, prevent, and abate nuisances. • i:: * "138 [§ 270) (31 Municipalities in speciolly or9anizcd pnivinces. "The municipal council shall ha\'e power by ordinance or resolution: ... • * *" ing made up of pP.rsons chosen by the veople to administer their interests and safeguard the health of the inhabitants, the latter have a remedy, if their officials are neglectful in the discharge of their duties, by complaining to the higher authoritit:>s."131 [§ 263] c. lnsp11ction. "A municipal corporation, in the t:>"\'.erdse of its power now under consideration, may provide for the inspection of the quality of articles sold within the market and the weights and measures employed in making sales. It also may provide that the market itself shall be regularly inspected by design&ted public officin.ls, and ilnpose the cost of inspection upon the "fee> Ri11.qi11g of /,ells. - To regulat~ and restrain the ringing owner or operator of such markets. The governing body of the of b~!~s and the making *of loud, or unusua! Mises. ~~r~~:a~,:~1 r~:e1;~i:;:ct~o:i~:tdi:~;~ti~;e i~~nd:~~r~~n~:~.e~~~0;:i~u~! [§ 271) <4> City of Manila. "The Municipal Board shall have arbitrary; the f!!e must be in proportion to th!! amount nel!essary the following legislative powers: to meet the expense and cost of the service."13:l. '"" • 1 • *"l3t [§ 264] 6. Boo.rds and offfo<Jrs, "In the exercise of the power "Cee> To decla1·e, prevent, and1 provide for the abatement of municipa.1 corpC!rations may create administrative offices for tho? nuisances; to regulate the J"inging of bells and the making of loud enforcement of their market regulations, and may p1·escribe the .. n· unusual noises ; to provide that. owners, ag!!nts, or tenants of duties of market officials, and their salaries. Ordinarily the selecbuildings 01· premises keep and ·maintain the same in sanitary con- tion of market officials, follC1wing the general rule, in the absence dition, and that in case of failure to do so, after sixty days from of provision to t.he contrary, is made by the municipal governing the date of serving of a written notice, the cost thereof be assessed body. Market regulations are enforceable by, and only by, those to the owner to the extent of not to exceed sixt.y per centum of officials or the board in whom the power to enforce such regulathe assessed value, which cost shall constitute a lien ·against the tions has been vested. The fact that a board of health is authortn'op~~ty . ~~~ ~~a;::;~:tea1:ai;;e~~einsur;;e~:: !:t~~~·ii~y,cil~a~-~i;::.~· t:en~!~~~~~ [§ 272] 2. Whar constittlte:i nuisa11ce; detennim1tion by muni- affecting the public health, does not prevent the jepartment having cipal authorities. "The Civil Code defines and classify nuisanCes.141 · the general control of markets from making regulations in further"For pur9oses of municipal regulation and suppression, as, ance of the same objects; but a board of health invested only with gf:nerally speaking, in qther instances, nuisances may thus be class- powers necessary to the preservntion of the public health and life ified: Cl) those which in their nature are nuisances per se, or cannot, irrespective of these considerations, order the removal of are so denounced by the common Jaw or by statute; (2) those stands or stalls attached to the public market on the ground that which in their nature arc not nuisances, but may become so by they arc ('lbstructions upon the public street-"133 reason of tht:ir locality, surroundings, or the manner in which they [§ 265) P. Needy; statutor11 statement as to Philippine mu1!imay be conducted, managed, etc. ; <3) those which in their nature <'ipal cor11orations. - 1..Municiprt!itics in reguln.r provinces. "The may be nuisances, but as to which there may be honest differences municipal council shall have authority to '.?Xercise the following disof opinion in impartial minds. With reference to things wl1ich cretionary powers: fall into the first and third classes - that is, thim?;s which in their nature are n.uisances and nre so recognized by the law, and things which are of such a character that in their nature they may be nuisances but as to which honest differences of opinion niuy exist among men of impartial minds as to whether they are actually nuisances - it is settled that a municipality may appl"Opriately deal with them by legislative police ordinances and enactments under grant of power from the legislature. On the other hond, as to things which fall into the second class - that is, things which in their nature are not in themselves nuisances, but which may become such by reason of t11eir locality, surroundings, or the manner in which they arc conducted - a municipal corporation has no power conclusively to declare them to be nuisances, but can only declare such of them to be nuisances as are so factually, because general authority to define and abate nuisances does not empower a municipality to declare that to be n r.uisance which is not a nuisance in fact, or which is not a nuisance [H se and does not come within the common-law or a statutory definition of a nuisance. There has been a tendency in municipal councils to imagine that by declaring a certain use of property to be a public nuisance nil discussion is foreclosed, and that by virtue of such declaration, the power of the municipality to suppress such use is unquestionable. Such a notion, however, r ests upon a failure to distinguish between the different classes of sub-. jects which may under some conditions fall within the category of nuisances."142 [§ 273) 3. Method of abatement. It would seem that the method of abating municipal nuisance is now governed by the new C:vil Code.HJ [§ 274] R. Newspapers. - 1. In general. "!\Iunicipal corporations may within reasonable limits regulate the sale of newspapers or similar publications. But such regulations must be reascnable."144 138 Sec. 2628. Rev. Adm. Code. 139 Sec. 2625. Rev. Adm. Code. UO See. 18. Rep. Act N<>. 409. 141 SC<! Art~. 694 k 695 N. C, Cod<:-. 142 37 Am Jur. 93~-939 143 See Art. <:-t Seq., N.C. Code. 144 43 c. J. 399. "(b) To make provisions for tlic care of the poor, the sick or Jlersons of unsound mind. ''* * [§266] 2. City of litanil<t. "The Municipal Board shall have the following legislative powers: "* • " (() To aull1orize the free distribution of medicine by the city physician to the employees ::i.nd labol'crs of th-a city, and of fresh native milk, if available, to indigent mothers nsiding in the city. ""' .... "' * "135 [§ 267] Q. Nuisrmces. - 1. In general. - a. Gvneral111. "It is definitely settled, without dissent, that a state legislature may lawfully delegate to municipal corporations, to be exe1·cised within their corporate boundaries, the power to declare what shall constitute nuisances, and to prevent or abate them; such power is, as a matter of fact, generally given to the municipalities, either in their specific charters or general state statutes. The regulation and abatement of nuisances is one of the ordinary functions of the pclice power, and municipali.ties arc generally considered as hm·ing been given the iight, in connection with their exercise of such power, to suppress them. It has been held or stated on numerous occasions, however, that municipal corporations have no control vver nuisances within their coq>0ratc limits except such as is conferred upon them by their charters or by general laws, and can t:xercise no powers in this regard beyond those expressly given or n£:cessarily implied."1~6 [§ 2G8] b. Stal.u.tory statement as to Philippine 1nu.nicipal corporatio"'·~. - <I) MunicipalitietJ in regular provinces. "It shall be the duty of the municipal council, conformably with law: "* • * ... "(h) To declare and abate nuisances. !~~ r3eog:~.o~9~~e Philippines vs. Sabarre. 65 Phil. 6~4. 133 43 C.J. 3n 134 See. 22~2. R.iv. Adm. Cod.:. 135 Sec. 18 Rei>. Act No. 409. 136 37 Am. Jur. 933·934. 137 Sec. 2242. Rev. Adm. Code. March 31, 1954 THE LAWYERS JOURNAL i57 "Establishment of m1tnicipal ga;:ettc. It has been held within the powers of a municipal corporation to establish a paper or i;razette for the purpose of giving information to its inhabitants upon matters of general interest affecting the municipal wel1arc."10 (§ 275) 2. Prohibition. "It is generally held thnt it 1s without the powers 'Jf munici11al corporations to prohibit the p\1blication of ne\vspapers."1445 Reasons for, a11.d discussion of, -ride. "The power to prohibit the publication of newspapers is not within the compass of legislative al'tion in this Sta.te, and uny law enacted for that purpose would clearly be in dercigation of the Bill of Rights. 'The constitutional liberty of speech and of the press, as we understand it,' ss.ys Mr. Cooley, 'implies a ri~ht tc freely uttf:r and publish whatP<er the citizen may please, and to be protected against any res.. ponsibility for 5('! doing, except so fa.r as such publications, from their bh1spht-my obscenity, or scandalous character may be 3. public offense, or u!:I by their falsehood and nialice they may injur:icusly affect the stnnding, reputatio .. , or pecuniary bterests of individuals. Or to state the sa.me thing in som~what differl!nt words, we understand liberty of speech a'n.i of the press to imply r.ot cinly liberty to publish, but complete iinmunit)' from legal censure and punishmPnt for the p1:1blication, .ro long as it is not harmful in its charncter, when tested by such standards as the law affords.' Cool. Const. Lim., 518. To prevent the abusP oi this pt ivi.lcge al a.ffecting the public, the Legislature has prescribed penaltiPS to be enforced at the suit of the State, leaving the matter of private injuries to be determined between the parties h1 civil proceedings. We are not informed of any authority which sustains the doctrine, that a municipal corpora.lion is invested with the p:lwer to declare the sale of newspapers a nuisance. The power to suppress one concedes the power to suppress all, whether such publications are political, secular, religious, decent or indecent, obscene or otherwise. The doctrine of the Constitution must prevail in this State, which clothes the citizen with liberty to speak, write, or publish his opinion on any a.nd all subjects, subject alone to responsibility for the abuse of such privilege."14T [§ 276] S. Obscenity. - I .. fo general, "While municipal corporations may enact ordinances forbidding particular acts of obscenity which are' unlawful or which tend to corrupt the public morals, the power to forbid particular acts of obscenity must be expressly granted or necessa.rily incident to a power expressly granted. By force of statute municipal corporation'3 may prohibit the publication of obscene matter. A publication of !lrticles in a paper, attacking the J ews as a race, is not indecent, obscene, or scanda.lous, within a municipal ordinance prohibiting the offering for sale of a publication containing indecent, obscene or scand&.lous articles. The limit of the power to enforce an ordinan<'e vrohibiting the sale of obscene or l'candalrms publications is to conduct a prosecution for the specific offense thus committed. The corporation cannot, by establishment of a. censorship in advan~~ of future publications, prohibit generally the sale thereof upon th<' streets."1415 [§ 277] 2. StatutOry provision..s as to Philip1Jirie municipal co-r. porations. - a . . j!,.fanicipalities in specialty o-rganized provinces. "Tht; municipal council shall have power by ordinn.nce or resolution: "* • • •" "Cg~> to prohibit the> printing, sale, or exhibition of immoral pictures, books, or publications oi nny description. ... . . [§ 278] b. City of Manila. "'l'he Municipal Board shall have the following legislative powers: ..• . "(r) To provide for the prohibition and suppression oi the printing, circulation, exhibition or sale of obscene pictures, books. or publications, and for the maintenance and preservation of peace and good morals. • •"150 [§ 279) T. Patrfll sen·ic~ or duty from male t'csidents; sta. tutory prot:isioris as to municipalitks in regular provinces. "When the province or municipality is infested with outlaws, the municipal U 6 Id. 399-400. 1445 43 c. J. 4110. 147 Ex p, Nelli. 32 Tex. Cr. 276, 22 SW 9245. 148 43 c. J. 410. 1(9 ~. 2626. Rev. Adm. Code. 1:;0 Sec. 18 Rflp. Act No. 409. council, with the approval of the provincial governor, may authoriz£l the mayor to requil"e able-bodied ma.le residents of the municipality, between the ages of eighteen anJ fifty years, to assist, for a period not exceeding five days in auy une month in apprehending -Outlaws or other lawbreakers and suspicious ch?.racters, and to act. es patrols fur the protection of the municipality, not exct~eding en~ ddy in each week. "Nothing herein contained shall authm·ize the mayor to require such service of officers or employees of the National Go\•err.ment, or the officers or s~rva.11ts of companies or indiYicluals E'ngaged in the business of c-ommon carriers on sea or land, or priests, ministers of the gospel, physicians, practica1ite.s, dru,qgists or practicantes de farma.cia actually engaged in business, or lawyers when actually engaged in court proceedings.'11s1 Illustration. A resident of the municipality of Iloilo was in 1914 charged with having criminnlly and without justifiable motive failed to render service on patrol duty, in violation of the municipal ordinance of Iloilo on the subject patrol duty. The accused contended that the ordinance upon which the criminal complaint was based was unconstitutional, for the i·eason that it was contrary to the provisions of the then Organic Act of the Philippines, the Philippine Bill, which gnarantecd the liberty of the citizens. The said ordinance appeared to have been adopted in accord. a nce with Act No. 1309, Which amended section 40 of Act No. 82 ' fithe Municipal Code at the time). The amendment empowered the municipal council, by ordinanc(!, to authorize the president: <t.) To require able-bodied male residents of the municipality, between the ages of 18 and 55, to assist, for a period not exceeding five days in any one month, in apprehending ladrones, robbers, nnd other law breakers nnd suspicious characters, and to act as patrols for the protection of the municipality, not exceeding one day each week; lb) To require each householder to report certain facts, enume1·ated in said amendment. Held; "Is there anything in the law, organic or otherwise, in force in the Philippine Islands, which prohibits the central Gov. ernment, or any governmental entity connected therewith, from adopting or enacting rules and regulations for the maintenance of 11cace and good government? May not the people be called upon, when necessary, to assist, in any reasonable way, to rid the state and each community thereof, of disturbing elements? Do not individuals whose righh are protected by the Government, owe some duty to such, in protecting it against lawbreakers, and the .:listurb. er.~ of the quiet and pea.cc? Are the sacred rights of the individual violated when he is called upon i"o render assistance for the prot ection of his protector, the Government, whether it be the local or general Government ? Does the protection of the 'individual, the home, and the family, in civili7.ed communities, under e.i>tablishcc.l government, depend solely and alone upon the individual? Doea not the individual owe something to his neighbor, in return for the protection which the law affords him against encroachment upon his rights, by those who might be inclined so to dO? To answer these questions in the negative would, we believe, admit that the individual, in organized governments, in civilized society, where men are governed by law, does not enjoy the protect:on afforded to the individual by men in their most primitive rehtions. "If tradition may be relied upon, the primitive man, living in his tribal relations before' the days of constitutions and states, eujoyed the security and assurance of assistance from his fellows when his quiet and peace were violated by malhechorcs. Ev<'n under the feudal system, a system of land holdings by the Teutonic nations of Europe in the eleventh, twelfth, and thirteenth centuries the feudal lord exercised the right to call upon all his vassals of a certain age to assist in the protection of their individual and collective rights. <Book 2, Cooley's Blackstone's Commentaries, 44; S Kent's Commentaries, 487; Hall, Middle Ages; Maine, Ancient Law; Guizot, History of Civilization; Stubb;:' Constitutional History of England; Chisholm vs. Georgia, 2 Dall. lU. S.' 419; DePeyster vs. Michael, 6 N. Y., 467.) Each vassal wa3 obliged to render individual assistance in retUrn for the protection e.fforded by all. "The feudal system was carried into Britain by William the Conqueror in the year 1085 with all of its' ancient customs and usages. i51S,;-227li. Rev. Ad.Ill. Code. 158 THE LA WYERS JOURNAL Ma1·ch Sl, 19G4
Date: 1954
Rights