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PUBLIC CORPORATIONS (Conti11w .. d f1·om th.; JuJuwry l ssw;) (§214) 2. Stottttory provisions a.s lo "fiesta" in Philippine sary or indispensable to the exercise of those expressly given, it 11 mnit:ivalil.ics in rcyula'r provincea. has been held that a municipal corporation has no power to en"Celebr«tio11 of fie8t.<1s. A fiesta may be held in ea.ch municipality gage in a11y priYate business, however desirable or convenient it not oftener than once a year upon a date fixed by the municipal may seem to be, or to manufacture articles necessary for its lawcouncil. A (i('sta shall not be held upon any other date than that iul enterp1·ises when they are in conlmon use and are to be had 11',wfully fixed therefor, except when, for weighty reasons, such in open market. The prineiple of striet eonstruetion of grants as typhoons, inundations, earthquakes, epidemics, or other publie of municipal power is sometimes said to apply with special force calamities, the fiesta cannot be held in the date fixed, in which to statutes enabling municipal eorporations to enter into commercasc it may be hclii at a later date in the same year, by resolution · cial activity. Under this view, it has been held that a municipal o( the eouncil."41 corporation ·cannot own or operate a st.one quaHy to furnish pa"Clianyi11g date of fiesta. A municpal eouncil may, by resolution passed by two.thi1·ds of all thfl members of the council, change the fixed date for the celebration of the fiesta; but when the date ha!'! been once fixed by the municipal council, it. shall not be ehangcd '"ith greater frequency than one in rive ycars."42 ''Fixrn.<1 rltHC of fi1'stu .. In fixing or changing the date o! the fiesta. the munieipal council shall give prefucnc~ to a date which, by reason of an important event in the municipality, the province, the Philippines, and in gencrnl, in the history of the Philippines, may be considered memorable and worthy of being commemorated by a }{!Cal !icsta."43 (§215) G. E'11yogi119 i1t bu.~i1tess enttrvriscs. _ 1. l 1l ye11enil. "Some authorities have slated broadly that the .stnte ha.s no power to authorize a munieipal co1·poration to engage in a business of a private nature. It is generally considered that in the absence of special circumsta11ces it is not within the constitutional 1 >ewcr of the legislature le authorize a municipal eorporntion to engage in a business which ca.n be and ordinarily is carried on by private enterprise, without the aid of any francb.ise from the g•wernment, merely for the purpose of obtaining an income or derivJ;1g a 11rofit therefrom. Although it might be designed and cx1iected that the rcturns from the business would cover the expense, and perhaps produee a profit and thus reduce the burden of taxation, it. would be im1iossiblc to foresee the actual result, and since, if the business should 1irO\'C unsuccessful, the deficit would have to be made up by taxation, il statute authorizing a nwnicipe.1ity to go into a pri\'atc business io objectionable as bringing about the possibility of taxa tion for a 1mqiose not public. Thus, it has ht.en denied that a state legislature has powc1· to authorize a municipality to maintain an clc\·ator or warehouse for the public storage of grain; to conduct a mu!:!cipal motion-picture theater; to engage in the plumbing busincs~ and the sale of plumbing supplies; or to establish manufactories on its own aecount and operate them by 1mblic offieers. A nnmieipal corporation is allowed to go into business only on the theory that. thereby the public welfare will be obscncd. So far aS gain is an object, it is a gain to a public body and must be used for publie ends. More recent cases, although reasserting the rule, indieatc a tendency to broaden the scope of th"se activities whieh may be classed as involving a public purpose in which a municipal corporation may lawfully engage. A municipe.lity exercising a part of the sovereign power of the state which the Constitution has not curtailed may, if the public interest se> requires, constitution:illy engage in a business commonly carried on by )Jrivatc cntt:•·prisc, levy a tax: to support it, and COlllJh~tc with private interest +..ngaged in a like activity. The state may le.wfully authorize munieipal eorporations to own and lease manufacturing enterprises for the purposes of relieving unemployment and utili;r,ing t..hc raw materials of the state, although under ordinary circumstances t.his power has been denied. Such a stat..utc has been held not, to violate due process under state and Federal Conslit..utions or to violate a constitutional provision that private pru11e1·ty shall not be taken or damaged for public use except where compensation is first m~dc to the owner. "Under the view that a municipal corporation has only the )Jowers expressly given or thos<' implied powers which arc neces. ~I Sec. 2282. Rev. Adm. Code. •2 Sec. 2283. fte,·, Adm. Code. o S.c. 228~. Rev. Adm. Code. ving material fo1· its sti-eets, nol· maintain a plant for the manufacture or brick to be used for paving its .streets, nor operate or condu<:t a private garage businesa: in the basement of one of its public buildings. A municipal corporation cannot engage in the business :>f buying and selling real estate, or in erecting buildings to gain an income by renting them. 1f a projeet of a municipal c~rporation is merely colorable under the pretense of actual authority, but is intencli?d to promote some private 01· unauthorited purpose, it, will be declare·d illegal. There is a recent authority, however, holding that a municipal <'Orporation may erect property for rental purposes where t..he legislature has declared such activ. ity to \Jc a public purpose. On t..hc other hand, under the viPw that implied powers need not necessarily be indispensable to the 1.;xercise of th()SC expressly given, it has been held that the powt<r t-.• own and operate a stone quaiTy may be implied from the ex • JH'ess 1iowe1· to grade and pave streets and to own and hold real estate. Likewise, the power of a municipal corporation to operate a nursery to provide trees and shrubs for its parks and public grounds may be implied from express power to acquire, improve, and maintain nmnieipal JJarks and play-grounds, and to acquire )and which is ust'ful, or advantageous, or desirable for municipal purposes. Municipal power to engage in certain other enterprises is discussed under ot..her titles and in other divisions of the present adiele. "Aceording to !'Ollie authorities. where as a 11cccssary res~lt (,f earryin~ on a legitimate public cntet·p1:isc iu a reasonably prudent manner, a surplus of the material used ol· dist..ributed is acquired or a bY-JH'oduct created, a municipal co1poration may lawfully engi:g:c in the business '.lf di~posing of sueh surplus or byJ•l'Uduct for profit, without spceial legislative authorit..y. '"When e. municipal COl'J)Orntion eug:iges in an activity of a business natur<', sueh as is generally engaged in by individuals c'r private co11iorations, rather than one of a gove1 nmental nature, it acts as a corporation, and not in its sovereign capacity."44 I~ :!IG,l 2. Sulc of co11w~odilies to 1mblic. "It was, until very reecntly at l"ast, looked upon <IS a well-est.ablished priuciple of Jaw t,hat. a 111u11icipal corporation could not constitutiom:.lly be au. thorir.ed b;v the legislature to engage in the business of selling and 1 1isfrihuting to its inhabitants, at reasonable rates an:l without dis<:rimination, th<' conveniences or eYen the necessities of life, if the business was of such a n~ttfrc that it could be and ordinarily was carried 011 by private individuals witliout the aid of any franchise from the :il:m :. It w11s for this rc;ison that. it. has been held t hat it. is not. within the power of the legislature to authorize municipal corporntions to este.blish fucl .iaids and to purchase eoal and wood to resell to their inhabitants, even at a time when fuel is scaree and the price are high, so that. the cost to consumers might b"! expected to be reduced by such an undertaking on the part of the municipality ; the manufact..urc of ica by a town and it.s distribution among the inhabitants 11as been held to be equally objectionable. "There were, from the beginning, some. exeeptions recognized to the rule which made it unlawful for municipalities to engage in a business which could be and ordinarily was carried on by pt·ivale citizens without any franchise from .the state, Thus, the t<stablishment of markets by municipalities, and th<: building of markets houses with a view to leasing the stalls therein to indiviH 3? Am. Jur. 746·?48. February 28, 1954 THE LAWYERS JOURNAL 97 dual de:ilers ln meat and provislou!:I, has the sanction of almost Immemorial usage, and it is now tc-:l late to contend that it is unconstitutional. Even the comts which deny the power of the legisl:\ture to cstc.blish municipal fuel yards concede that if a condition arose in which the supply of fuel would be so small, and the difficulty of obtaining so great, that persons desiring to purch?,SC it would be unable to supply themselv:es through private enterprise, since it is conceivable that agencies of government might be able to obtain fuel when citizens generally cvuld not, the government might constitute itself an agent for the relief of the community; con!.equently, the money expended for the purpose would be exjlended for public use. Some judges have taken an even rnorf'.' advanced \'iew, and have insisted that when money is taken to enable a municipal body to offer to the public, without discrimination, an article of general necessity, the purpose is no less publfc when that article is wood or coal than wh• m it is water, gas, ekctricity, or education, to say nothing of cases like the support of paupers and the taking of land fox rnilrClads or public markf.'is. Other courts, while perhaps nol going so far, nor conceding that a. ;nunicipality mig·ht be authori1ed to engage in every form of commercial enterprise which invobes the fale and distribution of a public Hecessity, ha''£ considered that such c-::immodities as ice and coal, in the sale of which com!)etition is 11ecessarily not as free and untrammeled as in ordinary articles of commerce, ori account of private contnll 'Jf the limited sources of supply, fall within the cl.;ss of the proper subjects of municipal dealing and traffic. A municipal 'charter :rnthorizing the city to engage in the busi!1<;.ss of selling gasoline and oil to its inhabitants has been held not to '·iolate the Fourteenth Amendment to the Federal Constitution or the state constitutional provisions relating to the control of busine:os affecting public welfare."45 <§217) 3. Tourist or trailer crnnps . .. The operation of a tourist r.amp, whet.her the municipal corpcration receives any compensation therefrom ur not, especially where the inhabitants of the corporation are excluded, is not a public busiuess, and the municipality cannot exuend money in the purchase of land for such a camp. However, it has been held that maintenance of a tourist camp i~ a municipal p<!.rk is .not a diversion of property devoted to park purposes, and statutes authorizing the establishment and maintenance of tourist or trailer camps are becoming more frequent, a11d their validit~'. in som<' instances has been assumed.''46 <§ 218) H. Fire reg1tlalion11. - Jn general. - a. Generally in the exercise of their police powers municipal corporatio~is may enact such 1·egulations as are necessary for the preventiun of, and protection from fires. 47 "A quaint s!atemenl of the r11!e is that found in Bacon's Abridgment; it reads thus: 'so if a !:>y-!aw be made in London, that none shall make a hot-press, nor use it within the city, under the penalty of 10, for the making thereof, and 5 for the use thereof, this is a good by-law; because the use of those presses is dangel"Ous with regard to fire, and also deceitful, inasmuch as they ma.kc dothes and stuff look better to 'the eye thun in truth they arc.'' 2 _ 1 bl'idy. 147."48 And it is the duty of municip:tl corporation to enact :,uch r(,gulations. " The corporate authoriti~s may fix what is known as a fire district and forbid the erection of wooden buildings therein. 1\o town or city, compa.ctly btiilt, can be said to be well-ordered or well-regulated which neglects JH'ec<rntions of this so:t. It is its duty to the public to take such measures as may be practicable to lessen the hazard and danger of fire. The public good and safoty arc superior to the individual rights of the inhabita,1ts, and u11der this principle such i·egulations are not the divestiture of the individual right of ownership and use, but is only c.::.nforming the use of individual property to the necessities, safety, and interests of the publir. It is a regulation of its cnjoyment."40 While some decisions consider or refer to this power as inherent in municijJal corporatiuni;, it, nevertheless, usually exists by rcas'Jn of an express grant ur a neccssal'ily implied statutory or constituticnal delegation. The reasonable view is that., like ~·111·.;4h-0Ml. 16 37 Am. Jur. 7&2. ·10 F11bic \'. Manila, 21 Phil. 486. 1<! Cl11 1·k v. South Bc11d, l:iG lnll. 2i6. Am . 1.1. 19 Monro.: ,., Hoffnrn.,, ~9 LH: Aun. 6&1. 29 Am. other municipal powers, lt may be impli_ ed. But the corpcration cannot exceed the authority given or gr.!l.nted by statute or chartc1·. Fire municipal regulationi: must be reasonable and not arbitrary; but the courts will not declare such regulations unrca.sonab!e, unless in clea!· cases of abuse. The t,ower to prevent fire carries with it the right to employ the . most effective means to that e'ld. In the exercise ,1f the power the er~ction or use of buildings for th~ purpose of a more or less dangerous character may be prohibited. Where the statute or charter 1·1rnmcrates the means by which the municipal authorities may provide :for t he prEventio11 of, and protection from, fires, and also authorizes for the regulation by other means of preventing and cxtingui.,hing fires as the municipal authorities may direct, it is held th::it the means particularly specified are not exclusive, and that thC' residuary clause is not to be co11strued according to tl1c l'lll<' t}nsdcm y.;m eriH as limited to .things of the same kind as those specified. The specific right conferred by statute to regulate and restrain the crectio!l of wooden buildings is not a limitation upon the municipal power to take reasonable means for the pre\'cntion of fire by exercising supervision ove1 the erection of other buildings. Statutes empowering municipalities for the prevention of fires to regulate buildings and to pr~scrib,:­ penalties for viGlation of such regulations, arc consitlered -.s penal and in derogation of the common law, and, :is a general rule, arc strictly construed.50 Under charter giving power tc insure safety of the public from conflagrations, a municipal council may require by ordinance that buildings for theatrical and cine;nat.:igraph performances . !\ml exhibitions to be built Or concrete, reinforced with steel and to be equipped with not less th?~n six exits.51 [§ 219] b. Statut<Jry stflf.cment as tu Philippine mwucipal curporations. - (1) Munidpalit.ies i"t 1·t9u.lar pro·vi11ces. "The munipal council shall have authority to exercise the following discre. tionary powers: "(c) To establish fire limits in populous centers, prescribe the kinds of buildings that may be con1:1tructed er repaired within them.,. r§ 220] l2) Municipalities .;,~ speci:llly (Jryani;;ed provinces. '"The municipal council shall have p11wer by ordinance or ·r~solution: "(iJ Building rc91dations. - To establish fire limits, and p!'es. cribe the kind of buildings and structures that may be erected within said limits, and the manner of constructing and repairing the "(k) I.ights, fires, l tlld finu:orks. - To regulate the use of lights in stables, shops, and oth~r buildings and places, and to regulate or restrain the building of bonfires and the use of firecrakers, fireworks, torpedoes, and pyrotechnic displays. . [§ 221] (;j) City of Munilri.. " The Munici1ial Board shall have the following legislative powers: "(h) To establish fire Jii;1its, determine the kinds of buildings O!" structures that may be erected within said limits, J"Cgulatc the m"nncr of constructing and repairing tl1e same, and fix the fees for permits for the construction, repair, or demolition of buildings and structures. "(j) To regulate the use of lights in stables, shops, and other buildings and places, and to regulate and restrict the issuance of permits fo~ th.:: building of bonfires and the use of firC'crakers, fire,Vorks, torpcdoe.:;, candles, skyrockets, and other 11yrotechnic dis1 1lays, and to fix the fees for such permits. l26 18 C.J. 09G . . 50 43 C.J. 368-369. 51 Bastida ''· City ll~guio. ''"'' 132. ~ \l)>C<l. 5 ~ Sec. 2t4J, Rev. Adni. t..:od<» t,3 S~c. 2625, Re,·. Adm. Cod~ . ;;4 Sec. 18. Hep. Act No. 40~. Gb3. For fach and ruli111:. 98 T H E LAWYEHS JOUHNAL February 28, 1954 [§ 222] 2. Flre limits. "One of the usual methods by which the power may be, and is, exercised is by the enactment of ordinances or regulations establishing fire limits, a.nd forbidding the use of inflammable materials in buildings or other structures, or in the erection thereof, within such limits. The limits of a fire district largely rest within the sound discretion of the administrative or legioilative body which is authorized to create it. Ordinances establishing fire limits and regulating the construction of buildings therein should be strictly enforced. That a wooden structure ceases to be such when encased with iron has been held by some courts, but tl1is view has not been generally accepted." f>5 "Method of enforcing reyulntions. Although the ordinance may provide a penalty for the violation cf a fi re limit !'egulatio11, such remedy is not t>xclusive; and the municipal corporation may in civil BCtion enjoi n the f'rection of a propol'led buildi ng in violation of the !'egulalion, and ask for the removal of a building or struchlre in violation of the regulation. Such fine or penalty is not considered as a full, complete, and arlcquatc !'emedy so as to prevent a court of equity from exercising its jurisdiction." 56 [§ 223] 3. Firf! hazards; storage or occ1wm/rttion of inflam. mable 11tatm·ials. "When the province or municipality is infested with Qutlaws, tlw municipal council, with the apprnval f)f the provincial ~overn'lr, may authorize tlw mayor to require able-bodied mvle residents of the municipality, between the a.ges of eighteen and fifty yeat·s, to 11ssist, for a period nc•t c.xceeding fire days in any one nivnth in appr~hending outlaws er other lawbreaker;; and suspicions charaders, and to act '.lS patl"lls for the protection of the municipa.lity, not exceeding one day in each week. · "Nothing J1erein contained slrn.11 authorize the mayor to require such service of officers or empJl)yet:s of the National Government, or the .,Uicers or servants of companies or individuals engaged in the business of comnmn carriers on sea or la!1d, or priests, ministc1·s uf the ~s1wl , physicians, pmcticantcs, druggists or 7Jracticmites de f(t.rmaci1i actually engaged in business, or lawyers when actually engai;ed in court proceedings." 57 f§ 224) 1. F'iscu.l ll!ftl•U!Jt.llH:nt, df'/Jts um/ scrnrilics. The 110wer of munici1ml corporntions to incur debts and expenditures I~ treated in a subseqn:nt chapter. [§ 225] J. ll11sinesscs and vcc1t1iativ11s.S8 - 1. In 9e1tcral.\a) Gcu~rrilly. '"While an individual has an inherent or natural right to engage in any lawful bu<;:iness, occupation, OL' trade, and may use his property fol" that purj}ose, yet the nature of the business, occupation, or trade sought to be carried on may be such as to render it subject to regulatory ccnti-ol by municipal corporations, in the exercise of their police powers, or authority delegated to them by the legislature 01· constitution, as under authority granted to restrict or prohibit nuisances. Such regulation is permitted in the interest of the public peace, health, morals, and general welfare of the municipality. The authority of the corporation in the premises must he granted by the state either expressly 01· by obvious implication; it is not inherent. Ordinances regulating business or occupations are ·strictly construed. A regulation providing that in any building 01· premises any lawful use existing therein at the t ime of the passage of the regulation may be continued, although not conforming to the regulations, does not authorize the conducting of another business which might prior to the enactment of t-he regulation have been lawfully conducted in such building, although it could not, subs(!(luent to the enactment, be originally established there." 59 [§ 226] b. Stnt1ttury pruvi;;Ums as to Philip1>i1w mimici1ml corporations. -- (1) Municipalities in re91tlar ptovinccs. ''The municipal council shall have authority to exercise the following discretionary power3: "ld) To provide for the numbering of houses and lots; the naming of streets, avenues, and other public places and, subject to the approval of the Secretary of the Interior, the changing of the names thcr'E!of; and fur the lighting of streets, and the spri11kU5 43 C.J. :\60-370. ~6 Id. :170. ~~ t7~r~7.'~ JP':.";u~~f~~43i.usiness am\ uccupatio11 di~cu~S<:tl in other ticctions of thischiwtcr. r,9 u c.J. au7-3~~Ung of the eame, •• (n l To regulate the establisim1ent and provide for the insrwclicn f'f steam boilers within the municipality, " (q) Tu regulate any business or occupation subject to a municipal license tax .. l § 22i] mi /llirnicipulities in speci<Uly or9a11i·.-::ed provinces. '"The municipal council shall have r,ow~1· by ordinance or i·esolution: "(e! Rey11latio11s for co1HiY.ctin9 /Jrtsincss. - To make regulations for the conducting of the business of the persons and places nnmcd in subsection (d) of this section (namely, Hawkers, peddlers, hucksters, not including hucksters or peddlers who sell only native vcg·ctables, fruits or foods, ]lersonally carried by the hucksters or pC'ddlcr, auctioneers, plumbct"s, barbers, tailor shops bakeries manicul"ing establishments massage parlors, embalmers, collecting agencies, mercantile agencies, transportation companies and agencies, sdvertising a.gents, tattoers, hotels, clubs, restaurants, lodginghouses, livery stables, boarding stables, laundries, cleaning and dyeing establishments, c<;t:lbl ishments for th:! storage of highly combustible 01 explosive matet'ials, Jiublic warehouses, bicycles, dealers in secumlhand merchandise, junk dealer"-]. To regulate the business and fix the loca.tion of blacksmith shops, foundries, steam boilers, steam engines, lumber yards, sawmills, and othel' establishments likely to cnda11ger the public safety by giving rise to conflagrations or explosions; to regulate t he storage and sale of gunpowder, tar, 11itch, resin, coal, oil, gasoline, benzine, turpentine, nitroglycel"in, 1 ict rolcum, 01 any of the products thereof and of all other highly combustible or explosive materials. [§ 228) (3) City vf Manila. "The Municipal Board shall have the following legislative powers: '"\l) To l"ct;ulate.. the foll<.1wing: hawkers, peddlers, hucksters, not includi11g hucksters or !Jeddlers who sell only native vegetables, fruits, or foods, personally carried by t he hucksters or JJcddlcrs ; barbers, collecting agencies, manicurists, hairdressers, latt.ocrs .. "(m) To.. regulate the bu:;iness of hotels, restaurants, ref l·eshment places, cafes, ludgi nghouses, boardinghouses, brewers, distillers, rectifiert, laundries, dyeing and cleaning cstabli shmen~, beuty parlor;;, physical or beauty culture and schools, clubs, livery gar<.ges, 1rnbiic wa.1·cl1ouscs, pawushops ... and the letting or subletting of lands and buildings, whether used for commercial, industrial or residential JlU l"!JOSes; and further to fix the location of.. and regulate the business of, livery stables, boarding stables, embalmers.,. dealers in secondhand merchandise, junk dealers,.,. the sale of intoxicati111; liquoi s, whether impul'led 01· locally manufactured. "(q) To l"cgulate the method of using steam engines and boilers, other than marin(' OI" beloni;ing to the National GovcrnmPnt; to pmvide for I.he inspection thercof, and for a reasonable fee for such inspection, and to regul~te and fix the fees for the licenses of the . . engineers engaged in operating the same. •·(ii) 'fu.. regulate any business, tl"ade, or occupation being conducted withb1 the City of Manila not otherwise enumerated in the preceding f:lubscctions .. [§ 22U] (2.) E-;rtc1 it u.11tl limits. - a. fo !JCIWl"«l. "The powcl" must he ex<:-ercised reasonably, within constitutional limitations, not arbitrarily or in restraint of trade, without discrimination, fair to P~ll alike, aud with some reasonable reference to tl1e public peace, health, morals, safety, or general welfare of the municipality. The question whctlwr a limitation upon the conduct of business or trade has a reaSonablc relaticn to the accomplishment of a legitimate 1mblic puiyose is one that must be decided "upon a view of the 60 S..,c. 224;1. llcv. Arlm. Code. 61 Sec . 262(;. n~,· . A<lm. Code. 6i S<·e. 19, Hcv. Adm. Code. February 28, 1954. THE LAWYEHS JOUTINAL 99 particular legislation and the circumstances to :which it is applied; the question is largely one of fact. The regulations of' the kind under consideration cannot be applied to an occupation, employment, or business not ca'rriecl on within the municipal boundaries." 11'.1 [§ 230] b. Place or location. "In the exercise of municipal pe>wer to regulate business, trades, or callings, particular occup'"ations may be excluded from certain parts of a municipal corporation, or ;nay be required to be conducted within designated limits within the corporation. The power to regulate the carrying on of certain lawful occupations in a municipa.lity includes the power to confine the carrying on of the same to reasonable limits, wherever such restrictions may reasonably be found necessary to subservc the ends fol' which the police power exists, namely, to pro~ect the 1mblic health, morals, safety, and comfort. For example, under its police power a municipality may validly prohibit the maintenance of a particular enterprise within a specified distance of certain types of buildings, such as schools, churches, hospitals, etc. A municipality may also validly prohibit the carrying on of business activities in or on certain portions of the municipality directly under municipal control or supervision a.nd involving specifically the public safety, as, for example, on municipal streets, highways, and sidewalks. 1n determining the validity of municipal police regulations which forbid engaging in specified forms of activity thenceforth in particular areas of a municipality, it can make no difference th&t a trade was lawfully established prior to the prohibitory ordinance anri that it has become offensive solely on account of the growing up of the municipality about it. A business which is lawful today may, in the future, - because of a changed situation, the growth of population, and other causes, - bec')me a menace to the public health and welfare, and be required to yield to the public good. It cannot be argued as a contention against such an exercise of the police power that a municipality cannot be fanned er enlarged against the resistance of an occupant of property, or that if it grows at all it can grow only as the environment of the occupations which are usually banished to the purlieus. "There is not necessarily any valid distinction, in consideJ'ing municipal ~·egulations forbidding a business to be ~xercised in a particular part of a municipality, between businesses which arP r.ot affixed or dependent upon a pa1·ticular municipal locality for their operation, which class it is admitted can be regulated, a11d business which it is claimed can be conducted from a financiall:.t advantageous position in only one particular place in a municipality because of the location in that place of the raw material from which a finished product is made. Regulation may also b<: had in the latter type of cases in spite of the fact that there has been an investment in property, whel'e manufacture of the finished product will be injurious to the health and comfort of t he community. So long as the prohibition of the business goes merely to the operations and manufacture of the raw materials in the particular place designated a.s forbidden, and there is no prohibition of the removal of the Yaluablc material from such spot, so that it can be manufactured elsewhere, constitutional rights are not violated "While police regulations of the. character here considered arc subject to judicial scrutiny upon fundamental grounds, yet a considerable latitude of discretion must be accorded to the lawmaking power; so long as the regulation in question is not shown to be clearly unreasonable and arbitrnry, and opcrntes uniformly upon all persons similal'iy situated in the pa1ticula.r dist.rid, the rlistrict itself not appearing to ha\'c been selected arbitrarily, it cannot be judicially declared that there is a deprivation of property without due process of law, or a denial nf the equal prntection of the laws within the meaning of the F ourteenth Amendment. On the other hand, municipal regulations as to the location of particular businesses within the municipality are invalid wherf', under the circumstances, they constitute an Ulll'('asonablc regulatio1 1 or interference not warranted in the public interest, where they unnecessarily or arbitrarily interfere with the property l'ights, and where they are indefinite and uncertain. It has also been stated that a r;rant of nnwPl' to reg-ulate lawful occupations and business place is certainly 11ot. an express grant of power to locate or prescribe 6:1 C.J. 359-360. 61 3j Am, Jui·. 957-960. thl' limits Or ·the carrying on of lawful occupations upon private premises.tM [§ ::!31) c. Time. "'No generalization can safely be staled as to the validity and reasonableness of municipal regulations of the time during which busilwsses may be conducteci. The result dPpends largely on the nature of the business sought to be regulated. "Regulations by municipalities of the hours during which specified businesses may be conducted have been dedared reasonable and constitutional where there ;s a patent relationship brtwccn the 1·egulations and the protection of the public health, safC'ty, morals, or general welfare, as where the business is of such a chal'acter that the public health or morals are likely to be endangereC. if it is carried on during the late hours of the night. It ha;: been held that under 2. general gl'ant of power in a municipal chartc1 to regulate business houses, the municipality has the power t<• close such places at midnig ht, 01· earlier. "A municipality has no authority, •rnder its police power, . to regulate arbitrarily and umeasonably the hours of private businP-ss, conducted in a reasonable mannel', under the guise of promoting the public health or ge11eral w.:!lfare of the community. Laws which regulate closing hours and do not in any manne1· directly or remotely tend to promote public health, good order and peace of the community cannot be justified as an exercise of mun ici1Jal police power. Thus, ·a regulation of the hours of a particular business which is not explainable by :i. relation between the regulation and the protection of objects within the police power, but solely on the ground that there is u desire to discriminate unconstitionally in favor of local dealers in the business, is unconstitutional. Ordinances attempting to regulate closing hours are also sometime,; invalidated on the grnund that they violate the principles that cn!inances must be reasonable, consistent with general law, and not Cestructive of lawful business, or because they are found not to be within the authority granted to the particular municipality seeking to enact and enf!)rce them." 65 [§ 232] d. Prnhibitio10. "There arc some businesses or commmercial activities which are, or may be, so offensive, dangerous, and detrimental to the public health. safety, comfort, peace, mol'a]s. am! welfare th<'.l municipal corporl>.tions, in the exercise of their granted police power, may prohibit. them altogethH within thP municipality or its police jm·isdiction. This pl'inciplc, however, is subject to definite limitations. Municipal authorities cannot, under the claim of exercising th-:! police power, substantially prvhibit a lawful trade, un'less it is rn conducted as to be injurious or dang-erous to the public health. Furthermore, a municipality ca1mot, under the general welfat·e clause of its charter, make it unlawful to cany on a lawful trade in a lawfui manner. It has also been held tha.t authority to 'license and regulate' a business dc<:s not confer power to prohibit. it absolutely." 66 "The 14th Amendment [of the American Constitution] p~:r.tects the citizen in his right to engage in any lawful busint:ss, but it does not prevent legislation intended to regulate useful occupations which, bC'cause of their nature or location, may prove injurious or offensive to the public. Neither does it prevent a municipality from prohibiting any business which is inherently vicious and harmful. But, between the useful business which may be regulated and the vicious bpsiness which can be prohibited lie many nonuseful occupations which !l1ay or may not he harn1ful to the public, according to local conditions, or the manner in which they are conducted." 67 "Thl:re is quite a difference betwee11 prohibition of a trade and the regulation of it.. lndeed, ·a power to 1egulatc seems to imply the continued existence of that which is to be regulated.' An orciinance which prescribes that certain persons shall not carry on their business, which would othcnvisc be legitimate, in a particular place, or on ce1·tnin p1·emises, is, as to such place, clearly prohibitive; and to authorize the passage of such an ordinance, where the power is undoubted, the injury to the public, which furnishes the justification for the ordinance, should proceed from the inherent. character of the business when conducted at such place or upon such pl'cmises. \Vhere, however, the business can be 65 37 Am. Jue. 960-962. 66 n Am. J UI'. 962. 67 ~:uruhy v, Californi"· 2~;; U.S. 623, 32 Suo. Ct. 697, 698, ~6 L. cJ. 1339, H J,RANS 163. JOO THE LA WYERS JOURNAL February 28, 19{;4 conducted then~ ty proper person_ e without harm . or inconvenience to the public, the prosecution of it should not be entirely prohibited, but such necessary police rules and regulations should be prescribed for carrying on such business in that particular locality as may be necessary for the public good." 68 "The test in C;VCry case is: Is the prohibition of a particular business or the sale of & particular article necessary to prevent !he infliction of a public injury? It is not sufficient that the public sustains harm from a certain trade or employment as it is conducted by some engaged in it. Because many men engaged in the ct:lling persist in so conducting the business that the public suffers and their acts can not otherwise be effectually controlled, is no justification for a law which prohibits an honest man from conciucting the business in such a manner as not to inflict in}ury upon the public." ~9 [§ 23a] a. Copra warehouse. Under the charter provision of a city authorizing it to regulate the business and fix the location of match factories, the storage and sale of gunpowder, oil1 ar.d other establishments likely to endanger the public safely or give rise to conflagrations or explosions, such city may regulate and fix the location of a warehouse for storing CO()ra, because the same is an establishment likely to endanger the public safety or likely to give rise to conflagrations or explosions.70 [§ 234] 4. Gasoline filling trnd service staJions. "Gasoline filling stations located within the municipal boundal'ies may be l}t·oper subjects for regulation by the municipality." 71 An ordinance prohibiting the installation of gasoline stations within the distance> of ~00 meters from each othel', not ?nly to prevent ruinous competition among" merchants engagecl. in this kinJ of business but also to protect the public from u1y harm or danger tha.t may be occasioned by said inflammable substance is valid.7~ • llfostru.tirm. - The plainli£fs Francisco Javicl' and Roman Ozaeta commenced this action in lhe -Court or·- First Instance of Manila to restrain the defendant Tomas Earnshaw, l\Iayor of the City of Manil;, from cancelling tht! 1iermit or license issued by him for the installation and o,peralion cf a gasoline pump and undNgrnund tank at the corner of Kansas Avenue and Tennessee Street. They appealed from the judgment dismissing their complaint. It appears tlm.t the plaintiffs, being the owners of a parcel of land situated at the corner of Kansas Avenue and Tennessee Street, Manila, entered into a contract with the Asiatic Petroleum Co. <P.U Ltd., whereby the ]attn would provide them with a pump, unde1·grourd tank and gcsoline on the land in question, for the exclusive use of the motor vehicles flf the Makabayan Taxicab Co., Inc., operated by the plaintiffs and would obtain the necessary liCt'nse from the defendant mayor of l\lanila. The plaintiffs .a.nd the Asiatic .Petroleum Co. (P.U, Ltd., obtained the necessary permit to install a gasoline pump and an underground tank in the pre. mises of the pb1intiffs, for the exclusive use of the motor vchiclf!s .or the ~fakabayan T~jcab Co., Inc. One of the conditions imposed in the contract is that the permit was nontransferable and that it was revocable at the expiration of 30 days from notice of the concessionaire. The pump and the tank were installed and the plaintiffs used them for some time to provide gasoline exclusively for the motor vehicles of the Makabayan Co., Inc. Sometimes later, huwcver, as the plaintiffs had succeeded in having the office of the city treasurer in.:>ert the word "s~lls" (which should read "sales') in the ~·cceipt issued by it for payment of the lic~nse tax, they began to sell gasoline to the public, thereby giving rise to prntests from opcrntors of the Socony Gasoline Station situated at the :::orner of Taft Avenue and Herran Street. The complaint was investigated and 11'.lt only was it proven but the plaintiffs themselves also admitted that they were really selling gasoline to the puhlic. The mayor, on June 9, 1934, sent a letter to the Asiatic Petroleum Co., <P.U, Ltd., 1·cquiring it to show cause within five days why the license issued to it should uot be cancelled for violation of the> 68 Cosi;rove v. Augusta. 103 Ga. S 3~. ll37, ~2 LRA 711. 69 Tolliver v. Blizu.rd, H3 Ky. 773, 35 LRANS S90. 70 Uy Matiao & Co., Inc .• v. City o( Cebu. etal.. XVll/L.J. 71 43 C.J. 380. 72 Javier ""d O~ a.eta v. Eunsha.w. infra. condition not lo sell ~asoline fo th!! public. The requirement wa!: endorsed to the plaintiffs who gave their explanation in their letter of June 11, 1934. The explanatioris given by the plaintiff<; not h<~ving been satisfactory, a.nd they having admitted i:he violation 0£ the condition by acknowledging that they have been sdling gasoline to the public, the mayor, on July 16, Hl34, sent a letter to the plaintiffs advising ' tl1cm that after 15 days from the receipt of 'Said letter by them, he would order the cancellation of the permil, which he in fa.ct deciJed to do, and the permit was cancelled. The court, U(lOI\ the bond filed by the plaintiffs, issued the writ of the preliminary injunction a1iplied for. The ordinance in question which wai;; violated by the platntiffE was Ordinance No. 1985 of the City of Manila, and the pertinent provision pertaining to this case provides: Sec. 1, (3) "That no gasoline station will be permitted to be ir.stalled withiu a di.<1tance of fiVP Jmndred meters fr.:1111 any existing gasoline station:'' The plaintiffs as~ailrd the validity of the said provision uf the ordinance iu:; arbitrary, um·casonable and discriminatory. The Supreme Court held that the municipal board of the City of Manila, in !he exercise of the police power, may rcas1Jnobly r~­ gulatc profe!lsions and business enterprises within its territorial limits when the public hea'ith, safety and wc:Hare so demand. Ordinance No. 1985 in quc!ltion is of this nature and, therefore, is not illegal. The Municipal Board of the city of Manila, by virtue of the police power, may reasonably regulnte the use of private property whemn-er ~uch measul'e is requirrd by the public health und safety, end the welfare of its inhabitants. The ordinance under consideration prohibits tl1c installation of g·asoline stations within the distance of 500 meters from each other uot only to prevent ruinous compctiticn among merchants engaged in this kind of business but also to protect the public from any harm or dangt:r that may be occasioned by said inflammable substance. The ordinance is not arbitrary, unreasonable or discriminatory because, it was e11actcd by the Cily of Manila in the exercise of the police p:iwer delegated to it by the Legislature, it tends to protect the inhabitants thereof from the dangers &nd injuries tllat may arise from the inflammable :mb.:>tancc, and the measure is gl'ncral l•llCI applicable to all persons in the 5ame situation as the plaintiffs. The appcu.led judgment is affirmed, and ihc writ of prelimina!·y injunction issued by the trial court is sci; aside.'3 [§ 235] 5. Lmuulries. "J\fonicipal COl'JJorations may regulate the establishment «lld operation of laundries, and may provide for a license fee to care for the additional expense in<;urrcd by the corporntil•ll for prupcrly enforcing such 1·cgulation. The power to regulate laundries must be exercised within its scope, and the i·egulations must be reasonable. Municipalities may n;quire as police regulations that laundries sh:lll be confined to certain p'.lrts of the city, prohibit them from bei-i1g carric,d on withi!l a designated distance from a church, school, or l1ospital, and that they shall b<: carried on only in buildings of brick or stone. But it seems that <m ordinance is invalid which requires the consent of a certain number of taxpayers and citizens of the vicinity for the establishment of the business." ·,·4 "D1scrin.inatfon. Municipal regulations dealing with ianncirie<> must not be discriminatory; for instance, the corpo1ation cannot deny privilege:; to laundrymen allowed to similar operators of machinery. But the corporntion may classify laundries on a 1iatural and reasonable basis. A laundry regulation exempting domestic laundl'ics from its operation is not discriminatory."75 Under the .r,reneral welfare clause, as well as under the power to "regulate" laundries, a municipal corpcration ma.y require hundl'ics, dyeing a!lf! cleaning esbbli~luncnts to issue receipts for articles l'eceived in E11glish and Spanish. Such ordinance is a reasonable exercise of the police power.is · ;3 J ;wier and Ozaeta ' '"· Ei<rnshaw. 6-1 Phil. 626·62!, 631, 640. 14 13 C.J. 390. 15 43 c.J. :mo. 76 ~';;~~~ Sing v. Cily of t.t..nila. H Phil. 103. For !ac\11 and rulini:. February 28, 1954 THE LAWYERS JOUHNAL 101 [§ 236] 5. Lumb6rya.rds. "The location of lumLcryards within the municipal limits may be a Ruhject of municipal regulati'or... The consent of the municipal council may be required as a condition precedent to their operation." 7'I Under statutory authority to f'nact such ordinance and make such regulations as shall seem nece~sary and proper . to provide for the health and sa.fety, promote the prosperity, improYe the morals, peace, good order, comfort, and convenience of the municipality and the inhabitants thereof, and for the protection of propl!rty therein, and to declare and abate nuisances, a municipality may prohibit the maintenance and operation of a sawmill and lumberyard within specified areas of the municipality, where such maintenance and operation would necessarily disturb residents and passers-by.1s [§ 237] k. Fraud in sale of ccnwmodities of prime necessity. 1. Jn general. Municipal Corporations, ur.der their properly delegated police powers, may enact regulations for the detection and prcventicns of imposition and fraud on the public in the sale and purchase of food and drink offered for sale to the public. It may regulate so as to secure honest weights and· measures; it may enforce the keeping of proper legal weights and measures by all vendors; and provide for the inspection of such weight.s and mea:mres. It may require tha.t the true weight or measure be stated on the package or other container in which articles of food or drink are sold. Such regulations must be reasonable, a.nd not arbitrary or discriminatory." 10 Public sccles. "Under the usual municipal power, it is competent to provide that the standard weights and measures for coal, hay, cotton, corn and the like shall be observed in all sales within the corporate limits, by test upon the pubfic scales provided by the municipality, a.nd prescribe what fee shall be paid for weighing, and that the same shall be paid in halves by seller and buyer.'' 80 Opinion of Secretwry of Justice. "I have the honor to comply with your request for opinion of July 22, 1940, as to the legality of Ordinance No. 9, series of 1939, of the Municipal Council of General Luna, Tayabas, requiring all merchants and dealers in articles and comwodities of prime necessity, such as food stuffs, building construction materials, hardware and clothing, to lai)(>l t.he i;ame, stating therein the grade, kincl, quality or cla~a a.nd t.he corresponding prices th.ereof. "ObviC1usly, the ordinance in question was enacted under and by virtue of the provision of general welfare clause of the Municipal Law (Sec. 2238, Rev. Adm. Code) "The purpose of the ordinance is fairly evident to prevt:nt deception and to promote fair dealing in the sale of commodities of prime necessity. "A requirement that the contents of all packages containing aticles of food must be shown by labels, brands or tags is obviously a most efficient method of int1uring protection to the public from the sale of inferior and injurious ;;.rticles of commerce. It is set. tled beyond question that statutes requi1·i?ig the seller to disclose, by label or otherwise, the nature and quality of the wrticles offere1, are valid as a legitinw..te exercise f'Jj' the police power (11 R.C.L. p. 1106, par. 12 citing 'the cases of Savage v. Jones, 225 U.S. 501, 32 S. Ct. 715, 56 U.S. (L. ed.) 1182; Standard Stock Food Co. v. Wright, 225 U.S. 540, 32 S. Ct. 784, 56 U.S. <L. ed.) 1197; State v 81 Ia. 642, 47 N.W. 777, 11 L.R.A. 355; State v. Asleen, J)O Minn. 5, 52 N.W. 220, 36 A.S.R. 628; 50 L.R.A. Sherod, 80 Minn. 446, 86 N.W. 417, 18 A.S.R. 268; 50 L.R.A. 660; Alcron Cotton Oil C. vs. State, 100 Miss. 29[), 56 Ohio St. 236, 48 Am. Rep. 42!); Dorsey v. State, 38 Tex. Crim. 527, 44 S.W. 514, 70 A.S.R. 762, 40 L.R.A. 201). "It is well recognized, that the legislative body in the exercise of its police power ma.y regulate or restrict the sale of personal property within the state. It may impose reasonable requiremt:nts as to labelling commodities to prevent frauds and imposition on the public (23 R.C.L. p. 1190, par. 3 1. The authority to legislate on this matter has been invariably upheld by the courts. <See National Fertilizer Association v. W.W. Bradley, 301 U.S. 178, 81 L. ed. 990; State v. Buck Mercantile Co. 57 A.L.R. 675; 38 Wyo. 47, 264 Pac. 1023; U.S. v. Ehreveport Frain & Elavator Co., 286 U.S. 77, 77 L. ed. 175; Evparte Beau, 15 Pac. (2d) 489; 216 Cal. 536; 77 43 C.J. 391 . 78 'fan Ch"t v. lloilo IMun o{' 60 Phil. ·16ii. 79 43 c .. 1. 374. 80 43 C.J. ~ 71. People v. l:<' ranch Bottling Works Inc., 180 N.E. 537, · 529 N.Y·. 4; Statt: v. Reininger, 239 N.W. 849; and McDcrmoth v. ' State, 126 N.W. 888> . "In view 'lf t.he foregoing, I am therefore of the opini'ln that there is very good authority for thf' conclusion that the ordinance in question which requires all merchants apd deaJers to label thir commodities, is legal, it being a Jegil iw,ate exercise of the police power conferred upon the Municipal - Councils by the general wel.., fare ciause provision of the Revistd Administrative Cod,e. . "In this connection, your 'attcntio1\ is called to a)l objectiu~abl~ provision in section 4 of the ordinance that the Justice of the Peace of the municipality shall be a member of the Anti-Profiteering La ~~ Enforcement Board. It seems that as a matter of good policy, the justice of the peace should not be made a member of said board." 81 [§ 230] 2. St'ntutory provision as to City of Manila. - "The Municipal Boat·d shall have the following legislative powers: "* * "' "(w) To regulate the inspection, weighing, and measuring of brick, lumber, coal and ot-her articles of me1·chandise. "* * * [§ 239] L. Gaming or gambling. - 1. In [Jenn·al. The passage of gambling laws is included within tlie 'police power ;:>f municipalities and although ;;ome games are not strictly games of chance or hazard and prohibited ,by the general gambling law, still' in ·a general sense some games arc a species. of gambling, .and the lJlunicipa!ity can suppress or control them, in the exercise of its police power.BJ illustration: "At common law a common gaming house was a ·common nuisance and was indictable as such. Gambling and the keeping of gammg houses are usually punishable by statute, but several court haV-e ·held {the decisions, however, are not uniform) , that the fact that the offense is punishable by statute does not' prevent the enactment, under due legislative authorization, qf municipal ordinances upon the sa.rn.e subject and providing a penalty for the violation thereof. The power to suppress gambling is frequentlr conferred upon 'municipalities by express statutory provision, and it has been held that when the crime of gaming is defined by law statutory authority to a municipality to suppress is confined to the offense defined by statute. But express authf'.Jrity is not required to confer authority upon the municipality to suppress gaming and the keeping of gambling houses. Such authority has been implied from the general welfare clause, from gene1·al power to pass police ordimrnces, from power to regulate and preserve the good order and peace of the city, and from pqwer to provide for the punishment of disorderly conduct and all practicer.; ciangerous to public order. Under the power .to regulate establish .. ments, they may be confined to prescribed limits. The act of setting up, keeping, and maintaining a gambling house is continuous in its nature in the absence of evidence of an interruption in the conduct of the house. Hence, for the maintenance of such a house only one panE-lty can be imposed, and separate penalties cannot be executed for each day. The prohibition of the ordinance may be directed not only against the keeping of gaming houses, but also against inmates and visitors to them."34 The power given fo regul~tc does not neCessarily carry the power to Sllflprcss.85 Power to licenM. "A muilicipal corporation which by its charter is authorized to prevent and suvpress gamiug and gambli;-ig ,houses is not authorized to make such places lawful by licensing them, The power to suppress is not authority to permit and 1·egulate. A license fee on a tenpin alley or the like cannot be imposed by or,. dinance without legislative authority. It has been held that, under the power to restrain gaming, municipal corporations have the power to license, and that such vower repeals general statutes inconsistent therewith when such is .ti1e intention of the legislature." s.6 P1tnishment. "While under express or implied power municipal corporations may make gambling a punishable offense,87 it has been held that, under the mere power to suppress .gambling, a municipal St Letter dated O~mber 6, 1940, of Secretary of Justice, 1<>ll A. $11,nt05 to the Unde1·secrelary of Interior; Opinion No. 340, series 1940. 82 Sec. 18, {kp. Act No. 409. . • 83 U.S. v. Salvareria. 39 Phil. 192. For factm and rulings, 5ee ss 133. 142. ~~ i,, o;.:,io~ic~'~;i~s~;r··N:~~·. "~02.111°0961\Jt 465; State c. r.lcMoniu, 75 Nci>r. 443, 106 NW 464. S6 43 C.J. 376. l:l7 U.S. v. Jwon, 26 Phil. I; U.S. v. Espiritusanto ,23 Phil. 610. 102 'l'HE LAWYEHS JOUHNAL February 28, 1954 corporation has nn power to provide for its pm1ishment as a misdemeanor; nor has it power to impose fines or penalties for gambling or keeping gambling houses." 88 lnmat,1s of f]tl.trtbliny llou:;cs; /rrqucnting gambling houses." "Within its express or implied powHs a municipal corporation may punish inmates of gambling houses, suppress visiting at gambling houses, and may make it punishable to be found in gambling houf;es. On the other hand, it has been held that it is without the power of a municipal corporation to make it an offense to be found in a gambling house without regard to the purpose for which one was present." 89 Illustration. The seven defendants in this case were convict~d in the justice of the peace of Davao, Davao, of violation of ordi1mnce No. 394 of said municipality. On appeal, the Court of First Instance of Davao ordered the dismissal of th(, case on the ground that the ordinance aforementioned is null and void. The prosecution appeals from and challenges this order of dismissal of The court below. Ordina11cc No. 394 of the municipality of Davao prohibit~d the playil1g of .. juctcng-", :mcl pl'ovided various penalties for the violation of said ordinance. The question tn be decided is whether the ordinance in question is valid or not. The municipal council of Davao is empowered by law to enact ordinance No. 394 of said municipality prohibiting the playing of jueteng. The supprcss1011 of gambling is within the police power of a municipal c,.,rporation and "Ordinances aimed in a reasonabl~ way at the acconiplishment of this purpose arc undoubtedly ·valid.'' (U.S. vs. Salaveria, 39 Phil., 102, 108.) The various penaltie!' imposed for the violation of the ordina11cc in question come within the limits of paragraph {ii) of the same section of the RcYised Administrative Code. It is admitted that juetcng is already prohibited and penalized in article 195 of the Revised :Penal Code. But the fact that an act is already prohibited and penalized by a general law docs not preclude the enactment of a municipal ordinance covering the same matter. The rule is well-settled that the same act m;i,y constitute an offense against both the state and a political subdivision thereof and both jurisdi.::tions may punish the act, without infringing any constitutional principle. <See U.S. vs. P acis, 31 Phil., G24.) Indeed, this princi]ile !s impliedly accepted in our Constitution by the limitation provided that "If an act is punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act." (Arts. III, sec. 1, par. 2Q.J90 [§ 240] 2. S/aiutory proiiisiom; as to Philippine mnnicipal corpo1-ations. - a. Municipalities in rcr1ular provinces. "It shall be the duty of the municipal council, confommbly with law: . . "(j) To prohibit a~d penalize . . . g:mbling ... The section in which this prM·i.sfon 1s to be found is entitled "Certain legislative powc'!'s of 1nunclatory dwracter." "The municipal council skLll have authority t" exercise the fol:owing discretionary powers: * * * *" "( i ) To regulate cockpits, cockfighting, and keeping or training of fightin~ cocks, 01· prohibit either. ' [§ 241] b.lllin.ici!>alities in specially organized ])rovinees. "The mullicipal council shall have power by ordinance or resolution: * * * •• (bb) Cockfiyhli'nq. - To t'eguhte and license or prohibit cockf,ghting and the keeping or trairiing of fighting cocks, and to close cock~i!s subject to the ~rovisions and rest;·ictions of gene!'al* law. "<jj) Gll1nblil',fJ, riots, and breaches of the peace. - To prevent and suppres3 . gambling "* * * [§ 242) c. City of i\fonila. ''The Mu11icipal Iloard shall have S8 43 C.J. 376. 89 43 C.J. 376. 90 P~'<>J>fo vs. Chong Hon11C, 65 Phil. 91 Sec. 2242. Rev. Adm. Code 92 Sec. 2H3 Id. ')3 Sec. 2625 Rev. Adm. Cod~. the :.o;lciwing legislative towers: "(r) To provide for the Jlrqhibition and suppression of ... gamblmg hou~c, gnmbling and all fraudulent devices for purposes of obtaini:1g money 01· pi·operty . "(s) To . . . regulate the keeping or training of fighting cocks. ... * * "(j) To .. pei·mit and regulate wagers or betting by the r:ublic on boxing, 'si!)ra', howling, billiards, pools, horse or <log races, cockpits, jai alai, roller or icesb.tini; or any sporting or athletic contests, as well as grant Pxcl'usivc rights to establi<ihments for this purpose, notwithstanding :my existing law to the contrary. "* * * *"£ 9t rn 243] M. Health nnd sanitation. - 1. ltt general - a. General. ly "Our municipal corporations are usually invested with express power to preseri-e the health and t>ufcty of the inhabilunts. This is, indeed, one of the chief purpo-scs of local government, and l'eascnablc by-la\'.'S in relation thereto have always been sustained in England as within the incidental authority of -::01·porations to ordain. I n <letern1ining the validity of ordinances adopted to promvlc the health and comfort of the inhabitants it may be taken as firrnly established tliat the State possesses, and therefore nrnnici1ml corporations under le~·islative sanction may exercise, the power \-o prescribe such regulations as may be reasonably necessary and ~·PJll'OJJt'iate for the protection of public health and comfort, and that no person has an absoh1le rigi1t to be at all times and in all circumstances wl1olly freed from Yestraint; but person and property are subject to all reasonable kinds of restraints and burdens in order to secui·e the general comfol't, hcdth, and prosperity of the State, the public as represented by its constituted authorities taki11g care always that no regulation, although adopted for th('se ends, shall violate rights secured by the fundamental law nor interfere with the enjoyment of individual rights beyond the necessities of the case. It is equally well settled that if a 1·cgulatio11, enacted by competent public authority avvwedly for the protection of the public health, has a real, substantial l'elation to that object, the courts will not strike it down upo_n grounds merely of public policy or expediency." 2 Dillon, Mun. Corp. Gth ed., 1022-1023. [§ 244) b. Stitl1ltory J>rovisio•ts as to Philippine m1micival corvorations. - (1) Municipalities in regular provinces. " It shall be: the duty of the municipal council, conformably with law : "* * * "(m) To prohibit the throwing or depositing of filth, garbage, or other offensive matter in any street, alley, park, or public square; provide for tl1e suitable collection and disposition of such matter and for other public places of th·~ municipality. "* * * "Co) To require any land oi· huilding which is in an insanitary condition to be cleansed at the expense of the owner or tenant, and, upon failure to comply with such an order, have the work done and assess the expense upon the land or building. "'(p) To construct and keep in repair public drains, sewers and cesspools, and regulate the construction and use of private water-closets, privies, sewers, drains, and cesspools. "* * * •• (r) To pl'ovi<le for and regulate the inspection of meat, fruits, voultry, milk, fi>0h, vegetable, and a!l other articles of food. " (s) To adopt such oth~r m~asures, including internai quarantine regulations, as may from time to time be deemed dcsirnble or nr:ccssary to prev1~nt the introduction and SJH'ead of discase."95 The f;Cction in which these provisions a\'e to be found is entitled "Certain teuislutivc pf/wers of mandatory cliaructer''.96 "RestrZction uvon mensnres relo.tive to sanitation. Ordinances, regulations, and ::JJ·de1·s enacted or promulgated by a municipal council in the exercise of authol'ity over matters of sanitation shall not be inconsistent with the regulations of the Bureau of He:i.lth."97 [§ 245] (2) Municipalities in specially or,qrtnfrcd provinces. "The municipal council shall have power by ordinance or i·esolution: ':* * * . * "(o) Streets : lightin9, cleaning, care, and eont1·ol. - ... to 94 Sec. 18. Rep. Act No. 409. 95 OlhH stntutory provision~ in Curthernnce or the prdtection or the J>ublic healt nre 111't forth in connection with pa1·ti~ular subjects. 96 .Sec. 2i42, R,.,v. Adm. Code. 97 Sec. 2247. 97 Se~. 2Z47 Rev. Adm. Code. February 28, 1954 THE LAWYERS JOURNAL 103 prohibit the throwing or depositing of offa.1, garbage, refuse, or other offensive matter [in streets and public places, and to provide for its collection and disposition ... "(u) Jnsanita1·y property. - To requirP. any land or buikling· which is 'in an insanitary condition to be cleansed at the expimse of the owner or tenant, and, upon failure to comply with such order, have the work done, and assess the expense upon the land or buildings. · "(v) Property below grade. - To fill up or require to be fillea up to a grade necessary for proper sanitation any and all lands r.nci premises which may be declared and du!y reported by health officer of the municipality as being insanitary by reason of being below such grad:! (II' which, in the opinion of the council, the public health or welfare may require. "(w) Drains, sewers, and so .forth. - To construct and keep in repair public drains, sewers, and cesspoob, and regulate the construction and use of private waterclosets, privies, sewers, drains, &nd cesspools. "(x> Burial of dead. - To . prohibit the burial of the dead within the centers of population of the municipality and provide for their burial in such proper place . and in such manner as the council may d-'!termine, subject to the provisions of the general law rC'gulating buri:tl grounds and cemeteries and governing funerals and the dispos:i.l of the dead. "(y) •.. to provide for and regulate th1:: keeping, preparation, and salC! of meat, fruits, poultry, milk, fish, vegehtbles, and all other provisioni; or articles of food offered for sale. "(z) Enforcement of health law,: anrl regulations. - To enforct: health laws and regulations, and by ordinance to provide fine;; :rnd penaltie!§ for violation~ of sue}, regulations; to adopt such other measure!§ to prevent the introctuction and spread or di.:;ease as may, from time to time, be deemed dcsirabl1:: and necessary."98 [§ 24G] (3) City of Manila. "The l\lunicipal Board shall have .. ;he following legis~ative powers: "(!) To regulate ... the keeping, preparation, and sale of meat, poultry, fish, game, butter, cheese, lard, vegetable, brea·d, and other provisions . "* . "(x) Subject to the provisions of existing law, ... to prohibit the placing, throwing, or leaving of obstacles of itny kind, F.":lrbage, refuse, or other offensivt. matter ot matter liable tt. cause damage, in the street and other public places and to provide for the collection and disposition thereof .. "* * "(y) ... to provide for or regulate the drainage and filling of privaU: premises when necess:;.ry in the enforcement of sanitary ordinances issued in accordance with law. * *""' 99 (§ 247] 2. Food. "Municipal corporations may enact such regulations as may be required to insure the sanitary production, sale, and disposition ot all articles of food offered for sale to the public. The corporaticin may requii·e that food offered for sale should be protected from dust, dirt, etc.; for instance, that all fruits l:xposed for sale outside of a building, or in any wagon <ir cart, shall be protected from flies ancl dust."! 100 . " iltedical examination. Mtmicipal corporations may require that person!> engagea in handling food productb offered for sale subject themselves to medical examin8tions, and may prohibit the employment of persons suffering with infectious or contagicus diseases."£ lOl "Retaili119 meat.!I from vehicles. Under the power to regulate thf' sale of foodstuffs the corporation may prohibit the retailin~ of meats from vehicles. Such prohibition is not um·easonable, although no public market places have been provided for; also, such prohibition is not discriminatory, although it does not apply to wholesale sales."11>1 [§ 248] 3. Garbage, offal, and other refww ~1wtter. "The rtmoval a11.d disposal of garbage, offal, and other refuse matter is i·ecognized as a proper subject for the exercise of the power of a municipality to pass oJ"dinances to promote the public health, com98 Sec. 2625, Rev . Adm. Code . 99 Sec. 18, Rep. Act N<>. 409. 100 43 C.J. 371-~72. lOI l02 Id. 37t-n~. fort, and safety. The natural scope of an ordinance on this subject is confined to discarded and rejected matter, i.e., to such as is no longer of value to the '.lwner for ordinary purposes of domestic consumpfrm. If the matter in question has not been rejected or abandoned as worthless and is not offensive in any war to t.he public health, it does not come within the natural scope of ~uch al! ordinance. Garba9e maltn· and refuse are regarded by tile decisions as inherently of such a nature as to be either actual or potential nuisances. By reaSOJJ of the inherent nature of the substance, it is therefore not a valid objection to an ordinance re. quiring disposal in a specified manner that garbage has some value for purposes of disposal, and that the effect of the ordinance is t(l deprive the owner of householder of such value. That the owner suffers some Joss by destruction or removal without compensation i:; justified by the fact that the loss is occasioned through the exf'rcisc of the police power of the State, and thC' loss sustained by the individual is presumed to be compensated in the common benefit secured to the public "Founded upon the foregoing considerations, it is therefore within the power of the city not only to impose reasonable restrictions and regulations upon the manner of removing garbage, but also, if it sees fit, to a<1sume the exclm:1ive control of the subject, and to provide that garbage and refuse matter shall only be removed by fhe officers of the city, or .by a contractor hired by the city, or by some single individual to whom an exclusive hcense 1s granted for the purpose. An exclusive right su created is not open to the objection that it is a mllnopoly. · "An ordinance of a city prolubiting, under a pennlty ,any person, not d11ly liunsed therefor by the city authorities, from 'removing or carrying through any of the streets of the city and housedirt, refuse, offal, or filth,' is not improperly m restraint of trade, and is reasonable and valid. Such a by-law is not in the nature of a monopoly, but is founded upon & wise regard for the public health. It was contended that the city could regulate the number and kind of horses and cart1'\ to be employed by stmngers or unlicensed per~ons, as well as they could tho;;e of licen&ed persons; but p-ractieally it was considered that the mam object of the city could be better accomplished oy employing men over whom they have entire crmtrol, night and day, who are at hand, and able from. habit to do t.:tifo- worK: in the best way and at the proper time."103 [§ 219) 4. Quaro,ntine. "WhHe a municipal corporation ha<> been held to have no ])Ower to establish quarantine unles.<; such power is c.<pressly granted O!' is implied as an incident to a power gl"anted o:· is essentiai to the declared objects and purposes of the corporation, as a gene!'al rule it is competent for a municipal corporation to ei;tablish quarantine regulations, and to exclude, removt:, or detain persons i..ffected with, or who have been exposed to, contagious or infectious diseases, it being considered a proper exercise of the police power."104 Harbors. "Authority by charter to pass ordinailces respecting the harbors and wharves, and "every other by-law necessary for the sccui·ity, welfare, and convenience of the city,'' gh·es to the city council power to pass a health ordinance requiring boats coming from infected 11Iaces to anchor before landing and to submit to an examination, provided such ordinance be not repugnant to the general law of the state. And it was further held tha.t a general law of the Stat1::, 1irohibiting "any ptrson coming into the State f10m an infected place, and in violation of quarantims regulations," W&.S not repugnant to, and did not render the ordinance invalid."10~ [§ 250] N. Jntoxie•teiny liquors. - 1. In geuerril. "There is no natural or inherent right to manufacture or sell intoxicants, in any such sense as to remove it from the legitimate sphere of legish•.tive control. Nor is there any Yesttd right acquirtJ by tho,<;e al!'eady engaged in the liquor tra.ific when preYents it's being aftt:1ward forbidden by statute."10~ "Under their inherent police 11ower, the several states (of the Union) had, prior to the Eighteenth Amendment, the right to prohibit, regulate, or restn:in the manufacture and :;ale of intoxicants. and, in tl1e exercise of this powH, subject to th!'.: limitations and restrictions imposed by the constitution of the United States or of th" state, had power to enact any and all lav.:s for tne su1ipression 1 (1 ~ 2 Dill<>n, Mun. Corp., Sth. Ed .• Hl4 H C.J. 429. 105 2 Dill<>n Mun. C<>rJ> •• lith Ed., 10.'lO, 106 S3 C.J. 449. 104 THE LAWYERS JOUH:'.\IAL February 28, 1954 of intemperance and the minimizing of the evils resulting from the traffic in intoxicatini; liquors by t".'tally prohibiting or by restricting and licensing the manufacture and sulc thereof, and to make such provisions tu enforce and prcYent evasion of such laws as o:eemed expedient to the several legislatures. To this end they may r<:gulatC; vr prohiLit the:. transportation 01· shipment of intoxicants. 01 prohibit their 1mportatiun, the1::- manufacture, even for the llSe of the manufact'..lrer, their g·ift, c:-:cr:pt for certain specified purposes, and their possession, when unlawfully acquired, or possession in excess of a. specified quantity. But it has been held that the legislr.tme may not prohibit n citi~cn from having in his posse::;sion intoxicants for his own use, oi· for keeping in l1is possession for another, intoxicants."107 "In the exercise rt{ its police pou·e1· to n:"cgulate the trnffic in intoxicating liquors, it was held that the legislature of a state might lawfully 11rovide 1 system for thE:: granting of licenses to sell such liquors, imposing proper conditions and restrictions upon th!! granting of such licenses, prescribing the qualifications necc:s. sary to s2curc them, making it a punishable offense to sell without a license, and providing for the forfeiture or revocat1nn of licensf's for due caus2. Such statutes, it ,~·as held, did not violate the r.on. slilution:il guaranties securinR the just rights of the individual. Bm there must be nv unjust or .-.l'bitrary d1scrimin~tlon as to the privileges grunted by th-e license or the amount of the fCc payallf' the1·efor be1wec1; indiv-iduab of the same class or doing business in the same locality. Since the licensing of persons to sell liquor is not an exercise of the taxing powC'r of the state to raise revenue, but of the police ,,ower, it follows that the fixing of the fees ·for licenses is 11ot go\·erned by the co~stitutional provisions regulating taxation, such as those requiring equality and uniformity."108 The le~i slative authority to license or regulate t he sa\!, of ii~­ loxicating liquor>: does not ~rnthorize a municipality to prohibit it, i,ither in exp!'ess terms or by imposing prnhibitivc license fees. The general powe~- granteCI in the general welfare clausz does not .'lu~ thorize u l\fonicipal Council to prohibit the sale of intoxicants, because us a general rule when a municipnl corporation is specifically g1\·e11 authority or po\\·er to re.i:>;ulate 01· to license and l'egulatc the liquor traffic, power, to prohibit is impliedly withheld.Im lllu..stration. The l\Iunicipal Council of Tacloban, Leyte, enacted Ordinance No. 4, series Hl44, providing among other thing,, that it shall be unlawful for any person, association, or firm, to manufacture, distill, riro<luce, cure, sell, b~rter, offer or give oi· dispose of in favor of another, possess or to have under control any intoxicating liquor, drink or br.verage, locally manfaclured, distilled, produced 01· cured wine, whiskey, gin, brandy and other drink containing liquor including tuba. The defendants Timoteo Esquerra, Simplicio Sabandal, Teofila Dacatoria, Vicente Uy, Uy Lawsing, Francisco Tan, Jose Chan, Victoriano Macariola, Miguel Galit, Eufracio Ga.spay, Rosalia Estolano, Felix Labordo, Pilar E. Pascual, Melr::cio Aguillos, and Victoriano Teriapel, were ,accused in the Court of .First Instance of LC;yte for th(; violation of the above mentioned ordinance. The t1·ial ccurt, after hw ring the arguments of the prosecution and the defense, declared the ordinance in question null and void, and dis. missed the cases against the defe11dants. The prosecuting attorney, in behalf of the plaintiff The People of the P hilippinC's, appealed from the decision of the lower ce:mt The . appellant contends that the ordinance at bar was enacted by virtue of the police power of the Municipality of Tncloban confened by the general welfare clause, section 2238 of the Revised Administrative Code, and is therefore valid. Held: The lowcl' court has not erred in declaring the Ol'dinanc(· No. 44, series 1944, ultravircs and therefore null and void. Under the gencr.el welfare clause, Sec. 2238 of the Revised Administrative Code, a municipal council may enact such ordinances, not repuznant to law, as shall seem necessary and proper to ]'rovide for the health and safety, t: tc., of the il1h;..bitants 'lf the municipality. Eut !Lid . 501>- ~0 ~. !OS. !bid. 512'-513. 109 Pe<>plc nf th~ Phili1>piu,, ,.. . E,,i,:u~1'l''1 <·! al., G.R. No•. L.:;ol, L- r,u~ L-503. L-504 . L-~05 . L-5or,, L- ~0 7 . J •• c.o.~. L-;,o~•. L-Gl U, L-5 11. L-012, ~ln y 21. 1 94~. XIII , L.J . 1H. as the ordinance in quC!stion prohibiting the selling, giving away and dis11ensing ot hquor is repugnant to the pro·.rision of Sec. 2242 \g) of the same Revised Administrativt Code, the Mumcir.al Council of Tacloban had no power under Sec. 2238 to !:nad th2 mdinance uncle;· consideration. The pr0hibition is Cl>ntrary to the power granted by Sec. 2242 (g) ·'to regulate the seliing, giving away and dispensing of intoxicating malt, vinous, mixed or fermented liquors al 1·etail;" because the word "regulate' means and includes the power to Clmlrol, to govern and to restrnin; and can n0t be const rued as <;ynonumous with "suppress" or "prohibit.'' IKO\\'llg Sing vs. City of Manila, 41 ' Phil. Rep., 103). Since the municip.'.llity nf Tacloban is empowered only to regulate, it cannot p!·ohibit the sellin!f, giving away ~nd dispensing <:>f intoxicating liquors, for that whicl1 is pr0hibited or does not legally exist can not be regulated.HO [§ 251] 2. Statntoru state1ittmt as to Philippine 11umicipal corpnraiions. ~- :i, ilfoniciprditics in 1·cgular provinces. " It sh<'.li O e the duty of the municipal council, conformably with Jaw: "(gl To i·egulate the selling, g iving away, or dispensing of in1oxica1ing, ninlt, vi11ous, mixed, 01· fermented liquors at retail. *"Ill The section in which the above-quoted prnvision is to be found is entitled "Certain lc!lislativc powers of mandatory character" [§ 252] b. Munici1wJitie.~ ii, .~peeially organized 1n·ovinces. '' The' municipal council shall have power by ordinan~e or resolution: "(d i "To ?·egulate, or pl'Ohibit the selling, giving away, or disposing, in any manner of any intoxicating, spiritous, vinous, or fennented liquo!'s. "But nothing in tl1is section shall be held to repeal or modify the pro,·isions oi law prohibiting the sale, gift, or disposal of int0xicating liquo1·s, other than wines and liquors, to nonchristian inhabitants. [§ 25<1] c. Citu •){ Manila. "The Municipal Board shall have the fol!owing legislative powers: " ( p) 'T'o ... reg·ulate t!H: sak 0f intoxicating liquors, whether importC<l or locally manufactured. [§ 254] 0 . 1lforketi; and mlkrkel plucei;. - 1. Jn geneml.a . G en<'rol/1 1. "The public sale of articles of food has been subject of police ree;ulatim1 and control from the early de.ys :if the common Jaw. The l'ight to con(iuet such sales, or to open a place where sales niigl1t be conducted b~, othet·s, was treated in England as a franchise held under the kind to be supported by express grant or by prescriptio11. In the United States the right to establish and regulate market<> is an e~crcise of the police power of thf' states. AP-ci the right to open and conduct a market is usually derived from th~ municipal corporation within whose limits the market is kem. The police power of t he states to establish and regulate markets. may be delegated to municipal corporation,; an<l is a pa.rticularly appropriate subject for municipal rcgulution. This powm· may be exercised either under statutory oi- charte1· provisions relating expressly to the estai>Jishment and regulation of markets, or the vending of meat and other commodities usually sold a.t such places, or under the gene1·al police powers ordinarily possessed by municipal corporations. The powe_1· may be exercised whether the market is carried on by a corporation, an unincorporated association, 01· even a private individual. While in judgi1ig- the reasonableness of such regulations the court will llOt look closely into mere matters of judgment whCl'e there may be a reaso;iable difference of opinion, and \~ill not interfere with the exercise of the discretion granted to the municipal corporation upon the ground o~ unreasonableness ex11 0 P •'Op]e ,... 13 L.J. J 11 Sec. ~ 2 4 2 , Code. 1 l ~ Se<·. ~6 2 ~. Code. F ebJ' ua ry 28, rn;:;.1 THE LAWYEHS JOURNAL 105 cept in a clea r cao;e, 1·egu\ations relating to markets must. be reasonable and not arbitral'y or discriminatory. The 1·cgulat10n must have it~ foundation on public necessity; it must have some rational toondency to promote the public health, safety, and welf~re of the municipality. The right to establish and regulate public markets cnnnot be used to create a monopoly of the right to sell, or so as to deny the right of consumers and producers of market supplies to deal with each other directly. The power granted by statute must be exercised in the manner pl·escribed therein. An}" ordinance rdating to the regulation of markets is invalid if in c~nf.li~t with a valid statutory provision, and e statute expressly hm1ting the powers of municipal authorities in regard to markets is ~ot repealed by a general statute authorizing them to ena~t. all. o~~i\~ances necessary for the general welfare of the mumc1pahty. "PrOhi.hition: The power to regulate markets does not include the power to prohibit."115 .. ''Const1·uctio11 of power. The power conferred upon a murncipal c0rporation to establish and control markets is, as a rule, to , be liberally construed, unless such a construction will tend to produce a monopoly in favor of private individuals." 116 "Surrender of power. The municipal police power over markets c&nnot be surrendered."117 [§ 255] b. Statl!tory statement as to Phili.ppine m;micipal t·"r]Jorations. - (!) Municipalities in regular provinces. "'It sh::.il be the duty of the municipal Cl)uncil, conformably with law: "(q) To est~blish or authoriz~ the establishment of . kets, and inspect. and regulate the use of the same:'118 The section in which the above-uotcd provision is to be found is entitled "Certain legislative powers of mandatory chararter." [§ 256) (2) Municipalit ies in specially orgamized provinces. "The munit·ipal council ;;"'hall have power by ordinance or re:.~~~1tion: ·'(y) Shm.r;hlerhouscs a11d markets. - To establish or authorize the establishmPnt of markets, and inspect and reguk.te the use of the same . . [§ 257] <3l City' of Jlfanilll. "The Municipal Board shell have the following legislative powers: * "(cc) Subject to the provisions of Ol'dinances issued by the Depcrtment of Health in accordance with law, to provide for the est.i.blishment and maintenance and fix the use of, and regulate . markets . . and prohibit or permit the establishment or operation within the city limits of public markets . . by any person, entity association, or corporation other than the city." . [ § 258) 2. Delegation of power. "In the absence or express authorization from the stale 0r power necessarily implied from that granted, the discretionary power to control and regulate markets must be exercised by the municipcl governing body and cannot be delegated to any board or official; it must be exercised by the board er official on whom the power has been conferred. Under delegated .authority municipal corporations may provide that certain murkets shall be established and operated subject to the regulu.tions adopted by designated boards or officials. The fixing of rent of market stores has been held to be an administrative function ~91 -392, 115 Id.392. 116 ld.393. !~~ ~~~.3~~42, Re,·. Adm. Code. 119 Sec. 2625, Rev. Adm. Code. 120 Sec. 18, Rep. Act No. 409. THE NATURAL LAW < Continued from page 65) failed here dism?,!ly - there al'e miliions still languishing in sbve and labor c::i.mp~, there arc still people shipped in cattle cars and there will still be million:. who will be cannon fodder at the whim of so-call~d Jei::ders. On this level, the Declaro.tion of Human Rights, approved by the United Nations Organization on December 10, 1948 is a rr.oder!l which may be delegated to designated officials or boards.''121 [§ 259] 3. J,ocatfon; abandonment ttnd removal. "In the absence of any restriction as to place, the right to establish a market includes the right to fix its location; to shift that location from place to place wl1en convenience or the necessity of the people requires it; and tc abolish a. previously existing market and establish another in a different locality within the municipal boundaries. The fact that the site was acquired for market pur poses is in1material. But a municipal corporation should not abolish a duly authorized and rxisting public market which is the only one withm the municipal boundaries.''122 [§ 260] 4. Leases and sales; stalls and privileges. "The right to sell in public market stands or stalls is acquired by contract \''ith the municipal 01· other auth'Jrities controlling the market. Municipal corporation.;:. have power to lease or sell stalls in public markets. or to prohibit the occupancy of a stell without procuring a lease. The precise rights of the occupant of a sta11 in thr: market will de:pcnd as a general rule upon the terms of the contract under which the stall is held.''123 "The purchase of these stalls in a public market, like the purchase of a pew in a church, does not confer on the purchaser an absv!ute prcperty, but a qualified right only. The !·ight acuired is in the nature of arl casement in, not a title to, a freehold in the !and; and snch right or easement is limited in duration to the existence of the market, and is to be understood as &cquiretl subject to such changes and modifications in the market, during its exi:.tence, as the public needs may require. The purchase confers an exclusive right to occupy the particular stails with thei 1 · appendages, for the purposes of the market and none other. If the owner be disturbed in the possession of the stalls, he may maintain case or trespass ll.ccording to the nature ~ml circumstances of the injury, against the wrongdoer. But he cannot convert them to aiiy other use than that for which they wel'e s0ld, and in this use of them he is required to conform to the regulations of the mai·ket as prescribed by tl1e ordinances of the city."12i The right to sell at a stall or stand in a public market is to he e)(ercised by the lessee thereof subject to all qualifications nnd restrictions that the municipal corporation may impose; and this is so whether they are made part of the lease or contract or not. Such re(:uiremcnts or restrictions must be reasonable. His l'ight is limited in duration to the existence of the market. The lessee of a market or its revenues also takes subject to the provisions d existing ordinances, a.nd the rights of the municipality to make r.ccessary public improvements. The lease of <.I- market sla!l does not imply a car.tract on the part of the municipality to protect the lessee against competition by unlicensed vendors, nor docs a lease of the r~venues of an established mal'ket prevent the munidpality from establishing another market and leasing it tc a diffe:·ent person, or require it to prntect the lessee against competition by unauthorized private markets, unless the' contract so provides, or gives such lessee any right of acti'>n against a person maintaining a competing :md unauthorized private market. A person in pos-~e!"sion of the stall under a vcrhal lease from the market master, nllhough the l:.i.t.tcr bad no authority to make it, is not a trespassn so as to authorize a forcible sf!izurc and removal of his property, nor caP. the lessee and colltictor of marktt revenues summarily eject the occupant of a stall admitted by his predecessor in office who has tenderer! thu re:quircd dues and conformed to the market 121 43 C.J, 393. l~! i~oJt ~Jitimor<:. 51 Md. 256, 270, 31 AmR 307 [quot Fonte v. Fisher. 138 Md. 6ij3, 114 A 703, 704. applicat10n uf the natural law. Tt contains the harmony of ideas and agreement or views of sa many l' nited Nations representatives of widely different ob!utiacs 0r culture;;, philosophies and religions. That is not an accident of p0litical agitatirm or propaganda and oratory or 1hetoric. It is the conspicuous result of the presence in all men of thC' continuing protective 'postulates of natural law. Le\ us hope that policy makers f:!•d responsible governmcnt fuctionar!es rcalizr> fae usCful l'Olc and function of the natural law in the legal order. 106 THE LAWYERS JOURNAL F ebruary 28, 1954 1·egulatlons. 1'he occupant of a mttrkct. stall who sells his rights to another is not bound in warranty to his vendee in case of an evi..:tion or disturbancE. of the latter by the municipalit.y itself, but would be lia.blc only for his own 8.cts which interfere with the enjoyment of what he sells."1~5 A charter provision requiring that when any market belonging to a municipality is to be let to :'.l. private party the same shall, unless otherwise directed by a stale official therein referred to, be Jet to the· highest and best bidder l'efers to the leasing of a ma.rket in its entirety, and docs not apply to distributioil and award cf spaces therein."126 , Illustration. This case is here on appeal by the plaintiffs Julia Lorenzo and her Jiusband Ma1·iar10 Estrell<>. from a decision of the Court of First Instanc(· of Cavite, di!>=missing their corr.plaint against the Municipal Council of Naic, Cavite and Pilar Dinio. l<~or purposes of the present decision, the folowing facts gathered from the record may be briefly stated. Prior to February 15, 1948, it seems that the municipal market of Naic, Ca\'itc was conducted and maintained without much attention as to the order and classification of the business done in it by the vendors and stallholders, and that furthermore, there was lack of light and ventilation in saiJ market. To remedy this situation the municipal counci of that town passed Resolution No. 20 lon Ft:biuary 15, 1948, rearranging, zoning and oth.::nyise putting in proper order t he mercantile transactions and the market sp:icc i'.ccording: io a schC'me or pla.n. This is partly stated and described in paragrapJ1 I of said Resolution No. 20 which reads as follows: "7 That for purposes of unity, better zoning system and for ' aesthetic reasons, all market stores and stalls a1·c hereunder clas~­ fied as regards the kind of goods they arc to sell or dispose to the public, and that, no store or stall should be allowed to sell products or goods other than specifica.lly provided." All he stores and stalls previously maintained in front of the market building up to the fence were ordered removed and the i.pace declared "off limits," the owners of said stores and stalls to be given spaces within the market proper. The scheme was graphically embodied in a pla.n pr~parcd by the District Engineer and amended by the municipal council, and is now marked as Exhibit D. Prior to the rCa1Tangement and re-pl:mning of the Naic market, Julia Lorenzo, the appelant herein, wa.s occupying a stall or market space, which is the very same space appearing as lot No. 4 (with a circle in red pencil>, east block, center column A, in plan Exhibit D, and now occupied by her. R. Manalaysay who previously occupied ~ space or stall in the portion declared "off limits," and because of the strategic position of said stall, was awardPd a ccrn..:r lot. Lot No. 2 (with a circle in red pencil), 126 Lorenzo et al. v. Mun. Council of Naic. C11vitc. 47 Off. OUR SECRETARY ... (CrJ'lli111wd from 71tt9tJ 57) and Agusan. In a year, he was transferred to llocos Sur. Promotion came i.n HHS. That was when he was designated assistant attorney in the Bureau of Justice. His merit was bein(:" recognized. ln th1·ec years, he was acting Attorney General. It '~as while' holding that position that he was nominated Undersecretary of Justice. Instead of getting his new promotion, h<' was kicked out - the Senate did HOt act on his appointment. His Hext job was that of general attorney for the Manila Railroad. The salary was much higher, but it lacked glamour alld prestige. Before long, he was designated judge of First Instance. For 12 years he was successively judge of Albay, Ambos Camarines;.. Tayabas, Riwl, and finally Manila, Rranch I. In 1936, he was named Solicitor General. Two Years later, he was elevated to the Court of Appeals where he sa.t quietly threughout the enemy occupation. President Sergio Osmeila returned with the forces of liberation, swept the entire Court of Appeals out, then abolished it. Collaboration became a burning issue, a battle-cry. The appellate justices accepted their fate with becoming dignity. They rallied under the banner of Senate President Ma.nucl Roxas who, they knew, would show them sympathy and understanding. He did. Elected President, he promptly named Justice Tuason chairman of a committee to investigate the Philippine Relief and Rehabilitacaat blor.k, center colmnn A, In the samt> E.<hibit D. Pilar Dinlo who was formerly occupying a space outside of the market. was given lot No. 1 (with ~ circle in red pt'nciD, east block, center column B, in the same exhibit For reasons not known and not material to this case, and thr<Jugh a private agreement Manalaysay excllangcd his lot No. 2 for lot No. 1 of Pilar Dinio. The award of lot No. 2 to R. Manalaysay, and his exchange of said lot for lot No." I of Pilar was protested by Julia, but the municipal council in its Resolut.ion No. 28 overruled the protest. As a result, Pilar Dinio is now occupying -lot No. 2 while R. Manalaysay occupies Jot No. 1. It should be stated in this connection so as to fully understand the reason why Julia brought this action, that before the :ioning and rearrangement of the Naic market as per Resolution No. 20, the space occupied by Julia which is 11ow lot No. 4 in Exhibit. D was a corner lot or stall, lot No. 2 then being used a:; an alley. As a result of the rearrangement, Julia's lot No. 4 is no longer a r.omer lot, and according to her testimony, her dail~· sales had diminished by one-half, thereby materially reducing her gross iucome and her profits. Naturally, Julia is interested in lot No. 2 and she wants to have it or at le<ist i-1 ave a chance to get it. Julia contends that tl1e action e>f the Mm1icipal Council of Naic in awarding lot No. 2 to R. Manalaysay was illegal and unconstitutional because it was not done thru public bidding as should have been done, and that furthermore, Resolution No. 28 of the same council a.1)proving the barter or exchange of lots 1 and 2 between Manaluysay and Pilar wa:. equally illegal. , The trial cou1t invoking section 2242 (q) of the Revised Administrative Cude which imposes upon a municipal council the duty to establish 01· authorize the establishment of markets a.nd inspect and regulate the use of the same, held that the municipal councll of Naic was authorized to make thC'. award of lot No. 2 to R. Manalayst>.y, which award the plaintiff could not very well question in the in·cscnt case inasmuch as she did not include Manalaysay as party-defendant; and that furthermore, the allege illegal e.xchange of lots 1 adl(I 2 was cleady a private arrangement er agreement which concerns only the parties thereto. So, the I.rial court dismissed the complaint. In her appeal Julia maintains that the trial court erred in • not holding Resolution No. 20 illeg-al in so far as it approved the awarding of lot No. 2 to R. Manalaysay without any public bidciing and without giving any chance to her to lease said lot, and that the lower occupying lot No. 2 for the reason that the exchange made between her and Manalaysay was illegal. HELD: "The :ippellant does not question the right of the municipal council to dispose of. a market space under the provisions of section 2242 (q) of the Revised Administrati've Code. She insists, however, that under section 2319 of the same Code, a space in a municipal market should be let or awarded to the highest bidder. lion Administration, some of whose officials seemed to have adopted the theory that to relieve and rehabiHtate the country they must first relieve and rehabilitate themselves. Also due for investigation was the Emergency Control Administration, a number of whose officials were charged with having taken advantage of the emergency to place themselves, their relatives, and close friends, beyond control. Before he. could finish . investigating the two a.dministrations, he was elevated to t.\1e Supreme Court from which another President has recently taken him to head the- Department of Justice. Asked which u! the two positions he would prefer, he answered that the work of an associate justice was more suitable to his tcmpernment, but that the secretaryship of justice was more interesting. In fact, he added, it is more important because it invests the occupant with tremendous powers for good or, or if hi' be so inclined, for evil. Speaking of evil, Secretary Tuason thinks that the present l:igh rate of criminality in the Philippines is due largely to the general disintegration of morals. Heligious instrut'tion, he feels, might help - remedy the situa.tion. It is fot .. this reason that he is in favor of strict adherence to the constitutional provisions on religious teaching in the public schools. Unwiiling to rush in "where angels fear to tread", he nevertheless believes that "any religion is better than no religion at all and that a man who be. lievcs in God becomes a better citizen." February 28, 1954 THE LA WYERS JOU RN AL 107

Date

1954

Rights