Opinion of the Secretary of Justice.pdf

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extracted text: Opinion Of The Secretary Of Justice PLAYING O'F "MAH-JONG" MAY BE RESTRICTED AND REGULA.TED."Sir: This is with reference to you.r request for opinion as to whether or not the game of "Mah-Jong'' may be prohibited under the Gambling Law. ''Gambling' is~ defined as " any game of monte, jueteng, or any ofoer form of lottery, policy, banking, or 1 percentage game; for money or any other representative of value or valuable consideration or thing, the result of which depends wholly or chiefly upon chance or hazard wherein wagers consisting of money, articles of value or. representative of value are made; . . . " (Art. 195, par. 1, Rev. Pen. Code). ''Wlhether or not a particular game is a game of chance or hazard must be determined from the method by which it js played. "In the game of "Mah-Jong" as described by the !Brigadier General, Chief. of the Constabufary, in. his 4th indorsement, dated December 16, 1939, the element of ability and skill in the discarding and taking of the blocks is the predomi.nant factor in order to win the game. It results, therefore, that "MahJong" is a game of skill and not of chance. (See U. S. VIS'. Liongson, 319 Phil., 457, 460.) Nevertheless, cities or municipalities, in the excercise of their police power may restrict and regulate the playing of "Mah Jong" (U. S. vs. Salaveria 39 Phil., 104; see also opinions of the Atty.-Gen., July 11, 1904.; July 25, 1904; October 10, · 1905; and. September 7, 1911; Opinion of the Executive Secretary, July 6, 1909; Opinion No. 273 series of 1937) ." -Letter dated Feb. 14, 1940 of Secretciru of Justice to the Undersecretary of the Irnterior, being Opinion No. 59, series 1940. AiPPOINTMENT OF' LOCAL POLICE OFFICERS NOT SUBJECT TO ACTION OF MUNICIPAL COUNCIL. -"Section 2259 of the Revised Admi-ni1strative Code which, in part, provides that "the Chiei' of Police and other members of. the force shall be appointed· Page 592 by the Mayor, with the consent of the Municipal Council," was impliedly repealed by Commonwealth Act No. 88, which organized and consolidated the police forces in all municipalities and cities into a state Police under the immediate charge and direction of the Department of the Interior. Under Section 2 of this Act, "appointment to the State Police force and removal therefrom shall be made in accordance with civil 1 service rules and regulations, by the Commissioner of. IPiublic Safety with the approval of the Department Head x x x .. " Said Commowealth Act No. 88, however, was. later expressly repealed by Commonwealth Act No. 343, which abolished the State Police force and reorganized the !Philippine Constabulary irito a National Police Force. Does this repeal of Commonwealth Ad No. 88, which impliedly repealed Section 2259 of the Revised Administrative Code, revive the latter? In the case of U. S. vs. Soliman (36 !Phil. 5), it was held that: "x x x when a law which repeals a prior law, not expressly but btv implication, is itself repealed, the repeal of the repealing law revive:s the prior law, unless the language of the repealing statute provides otherwise." Section 6 of Commonwealth Aict No. 343 • pr.ovides, in part: "Upon the approval of this Act, x x x all provincial, city or other local fire and police bodies or provincial guards as may have been wholly or partially removed from the control of local officials by the .provisions of Commonwealth Act Numbered Eighty-eight shalt be reorganized under such regu/,ations governing appointment, organization, and admi.nistration as the corresponding head of department with the approval of the President may prescribe, and returned· to the control, to ·be exercised under the supervision of the corresponding Pepartment Head, of appropriate DECEMBER, 1949 municipal, city and provincial officials". As may be noted above, file appoint· ment of local police officers shall be governed bty such rules and regulations as may be prescribed by the corresponding ¢~partment head, w~th the approval of. the President. In the face of this clear mandate, Section 2259 of the Revised Administrative Code cannot be considered revived by the express repeal of Commonwealth Act No. 88. In conformity with such mandate, the Pres.ident promulgated Executive Order No. 175, dated November 11, 1938, revising the rules and regulations relative to the admini• stration and supervision of local police forces. IPlaragraph 14, of said Ex.ecutive Order, in part, reads: "Hereafter, aµpointments to and promotions in the municipal, city, and provincial police service shall be made in accordance with CivH Servic. e Rules and Regulatiorns by the respective city or municipal mayor or governor, with the a.pproval of, the President of the Philippines, pending the designatio.n of the Department Head, who is to exercise su.pervision over local police force, except in the case of Chiefs of Police of chartered cities which is governed by special provisions. of law." The Secretary of'. the Interior, under Executive Order No. 176, dated December 1, 1938, was. designated as the Department Head to exercise su.pervision over local police forces, as con[emplated in the above cited provision of Executive Order No. 175. It is clear, therefore, that the appointment of the Chief of Municipal Police shall be made, in accordance with civil service rules .amd regulations, by the Municipal Mayor, with the approval of the Secretary of, the Interior. Hence, said appointment is not subject to the action of the municipal courncil.3rd Ind., June 1, 1946, of Sec. ofJustice to the Sec. of the Int. LICENSE TAX MAY BE IMPOS.ED UPON THE OCCUPATION OR !BUSI· NESS OF OPERA:TING !FISHPOND. DECEMBER, 1949 -Opinion is requested on the questio.n of .whether· or not the municipality of Hinigaran, IPlrovince of, Occidental Negros, may legally impose the licernse tax of P3 a hectare on fishpond owners as provided in Ordilllance No. 7, series of 1931, of the Municipal Council of said municipality, taking into account the fact that realty tax is already being collected on the land in which the fishponds are located. The pertinent portion of the ordinance in question reads : "De acuerdo con el articulo 2309 .de! Cod'igo Admini1 strativo . Revisad6, el consejo municipal de Hinigaran, Provincla de Negros Occidental, I. F., por la presente decreta: "'Por cada duefio de vivero de peces pagara• n P3 .anual .por cada hectarea." It is clear that what is imposed by and under the ordinance is a tax upon the occupation or business of operating a fishpond. Con:sequently this Office believes and, therefore, holds that the tax which the ordinance imposes 1s authorized under sectio1n 1 of. Act No. 3422, as amended by Act No. 3790. (See Op. Atty. Gen., Aug.14, 1929.) It is intimated that the imposition of a tax on fishponds, when real estate tax is already being collected on the land whereon the fishpond is located, may amount to double taxation. Such fear, however, 'is unfounded, for these taxes are imposed upon differe1nt species of property and for distinct :purposes. To constitute double taxation in the prohibited sense, the second tax must be imposed upom the scime property for the scime piirpose, by the same state ·or government during the taxing period." (·61 C. J., 137.) Besides there is no double taxation where one tax is impos· ed by the State and the other is one imposed by the city ('Cooley, Taxation, 4th Ed., p. 492.) In view of the foregoing, the undersigned answers the query in the affirmative.-3rd Ind., Feb. 24, 1937 of Undersecretciry of Justice to Aud. -Gen. COOPERATIVE MARKETING AS· SOCIATIONS-ACTrv1 E p ARTTOI. I : .J Paie 593 PATION OF MUNICi!PAL OFlFIClALS lN OkGANllATlON ALLU.WED.-Respectfully returned to the Honorable, the Undersecretary of the lnter10r, Manila, inviting attention to section 22· of Act No. 3425, otherwise known as "The Cooperative Marketing Law" which reads as follows: "SEC. 22. Government officer::; and employees may become officers. -Upon the recommendation. of a !Blurea u chief, the Secretary of the Department concerned may grant written authority to any otticer or · employee of the Philippine Government to take an active part in the organization and operation of any association created thereunder, and to occupy and perfon;n the duties· of any position in the same, out· side of Government office hours, and to receive the salary or emoluments thereof." It is believed that the foregoing provision has not bee•n repealerl or modified by the Constitution insofar as municipal officials are concerned.-2nd Ind., June 17, 1936 of Urz.dersecretciry of Justice. EF,FE\CT CIF F'ISC,<\L YEAR ON SECTION 2309, ADMINISTRATIVE CODE-Sir: This is in reply to your 5th indor~.ement, dated 'Feb. 10 1941, requesting opinion on the question raised by th3 pro\ incial board of Batanga3, as to the effect of Commonwealth Act No. 373 which changed the official fiscal year from Jamuary 1st to December 31st of each calendar year to July 1st to June 30 of the next calendar years. on section 2309 of the Revi'Sed Administrative Cod~ which provides in .part that "a municipal license tax already in existence • shall be ,,subject to change only by an or.dinance enacted prior to the fifteenth of December of a·ny year for the next succeeding years." Municipal license taxes accrue on the first of January of each year ais regards persons then liable therefor (Sec. 2310, Rev. Adm. Code). Bearing this fact in mi•nd, it becomes obvious that the intention of the first sentence of. Section 2309, quoted above, is to afford person8 affected by the tax sufficient notice of Page 594 the modification in the license taxes which are . imposed upon them, and a reasonable opportunity to prepare for the payment of the same. The refe· rence, therefore, to the "next succeed· ing year" in said provision, is none other than to a caiendar year which commences on January first. To hold that the phrase refers to the official fiscal year as prescribed in Commonwealth Act No. 373 would mean that no change in an existing municipal .license tax may take effect except after six and a half months from the date of its enactmeut. Such a construction would be detri-· mental to pubiic interests. in its effects, absurd in its implications, a1 nd could not have been iii.tended (See Sec. 2230, Rev. Adm. Code). Commonwealth Act No. 373 applies "wherever in any law of the Philippines any word or expression is used which hitherto has been construed to mean or to refer to a fiscal year ending with the thirty-first day of December (See. 2). It is not intended to affect all other dates or periods previously fixed by law having reference to the calendar year. Thus, on a previous occasio• n, I gave the opinion that the said Act has not affected the provisions of Sections 2-002 and 2022 of the Revised Administrative Code i•nsofar as those sections refer to the calendar, as distinguished from the fi:scal year. (Op. No. 97, series 1939). Similarly, it might be mentioned that tax laws enacted by the National Assembly :subsequently to Commonwealth Act No. 373 invariably fix the accrual of the taxes on the basis of the calendar, and not of the fiscal .vear (See Com. Acts Nos. 465, 466 and 470). I am therefore of the opinion that Commo•nwealth Act No. 373 which changed the official fiscal year did not affect the provisions of Section 2309 of the Revi1 sed Administrative Code.L etter datBd Feb. 21, 1941, of Sec. of Justice to the Actifn.g Prov. Fiscal of Batangas, being· Opinion No. 55 Series 1941, Sec. of Justice. RETIREMENT UNDER PCT NO. 4183 SHOULD ARISE /FROM A RE· ORGANIZATION OF THE SERVICE. DECEMBER, 1949 -Sir: In reply to yours of September 24, requesti·ng my comment and recommendation on the interpretation and application of Act No. 4183, as amended by Commo•nwealth Act No. 623, in relation to the proposed retirement of Mr. Sisenando Ferriols, Administrative Deputy in the office off the lf'rovincial Treasurer of iBatangas, I beg to say: Section 1 of Act 4183, as amended by Commonwealth Act No. 623, provi· des : "In order to grant a gratuity to provincial, municipal and city officer and employees who resign or are separated from the service by reason of a reorganizcition thereof, the1 provincia,J, bparc'(;; mun~cipal and city boards or councils may, with the approval of, the Secretary of the Interior, retire their officers and e.mployees, granting them, in consideration of satisfactory service rendered, a gratuity. . . . " Series 1940. Referring to these pr9visions, as well as to Act No. 4270, authorizing the retirement, under similar conditions. oi officers and employees of the City of Manila, this Department has consistent· ly held that the retirement gratuity provided in said Acts "may be demanded only if the claimant 'isi retired or separated from the service as a result of the 1:eorganization" of the Joc;al\ gove,l'nment. (Op. No. 150, series 1941, O.p. No. 4.6, series 1939, of the Sec. of Justice.) Thus, in one case this Office stated: "Having been separated from the service )ly his death which took 1 place before the approval of Commonwealth Act No. 623--and not by the reorganization of the Government of the City of Ma·nila, Mr. Revilla is not entitled to the retirement gratuity provided in said Act .. " (Op. of Sec. of, Justice, July 15, 1946; underscoring supplied.) You state that in aipproving Act No. 4183 the then Governor General laid .down the policy that no local official or employee shall be allowed to retire DECEMBER, 1949 unless his position is abolished and that no position so abolished shall be recreated, and cautioned against the conversion of the said Act into a pension Jaw, inasmuch as this legis.Jation was. passed apparently for the pu.rpose of facilitating the reorganization of. the local governments with the retrenchment po· !icy in view. Comformably to that .policy and to the opinions of this Department herein before mentioned, I recommend that no provincial, municipal, ·or city officer or employee be retired with gratuity unless his retir~ment or s.eparation from the service should ari1 se from or shoulci be. come necessary by reason of a reorganization of the service.-Letter dated Oct. 16, 1946, of Sec. of Justice to the Chief of the E xecutive Office. U N A U T H 0 R I Z E'D USE OF SCHOOL BUILDING AND PRE· M1'SES.-Sir: This is with reference to your letter of May 4, 194.0, wherein you request my opinion as to what action may be instituted against the unathorized use of school ·buildings a·nd pre· mises by the Socialists of Pampanga. Thio; Department has already held (!Opinion of the Sec. of justice, 1Feb. 3. 1938) that the unathorized entry by a private individual into properly closed school building constitutes a violation of Article 281 of the Revised IFle• nal Cod11 which ~unishes as guilty of tresi pass to property any one "who sl}all enter the closed premises or the fenced estate of another while either of them is uninhabited, if the prohibition to enter be ma· nifest and if the trespass has not secured the permis1 sio•n of the owner or care· taker thereof." The term "premises" has been held to mean "buildings" (49 C. J. 1328, sec. 3). In view thereof, I am of the opinion that prosecution would lie against the offending parties for violation of the aforementioned Article provided the prohibition to enter was manifosf and the authority and permission of the division superintendent of .schools was not secured (See Sec. 605, Service Manual [1927], !Bur. of Education).Page f.93
Date: 1949
Rights