clu v executive secretary

8/3/2019 CLU v Executive Secretary

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CLU v Executive Secretary, 194 SCRA 317 (1991)

F: The petitioner challenged Ex. Order No. 284 which in effect allowed Cabinetmembers, their undersecretaries and asst. secretaries and other appointive officials of

the Executive Department to hold other positions in the govt., albeit, subject of the

limitations imposed therein. The respondents, in refuting the petitioners' argument thatthe measure was violative of Art. VIII, Sec. 13, invoked Art. IX-B, Sec. 7, allowing the

holding of multiple positions by the appointive official if allowed by law or by the

pressing functions of his positions.

HELD: By ostensibly restricting the no. of positions that Cabinet members,

undersecretaries or asst. secretaries may hold in addition to their primary position to not

more than 2 positions in the govt. and GOCCs, EO 284 actually allows them to holdmultiple offices or employment in direct contravention of the express mandate of Art.

VIII, Sec. 13 prohibiting them from doing so, unless otherwise provided in the 1987

Constitution itself. If maximum benefits are to be derived from a dept. head's ability and

expertise, he should be allowed to attend to his duties and responsibilities without thedistraction of other govt. offices or employment.

xxxThe stricter prohibition applied to the Pres. and his official family under Sec. 13, Art. VII

as compared to the prohibition applicable to appointive officials in general under Art. IX,

B, Sec. 7, par. 2 are proof of the intent of the 1987 Consti. to treat them as a class by

itself and to impose upon said class stricter prohibitions.

Thus, while all other appointive officials in the civil service are allowed to hold other

office or employment in the govt during their tenure when such is allowed by law or bythe primary functions of their positions, members of the Cabinet, their deputies and

assistants may do so only when expressly authorized by the Consti. itself. xxxHowever, the prohibition against holding dual or multiple offices or employment underArt. VII, Sec. 13 must not be construed as applying to posts occupied by the Executive

officials specified therein w/o addition compensation in an ex-officio capacity as

provided by law and as required by the primary functions of said official's office. Thereason is that these posts do not comprise "any other office" w/in the contemplation of

the constitutional prohibition but are properly an imposition of additional duties and

function on said officials. For more case digests and law school notes visit

lizajamarga.com.

2.)

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. L-13678 November 12, 1918


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THE UNITED STATES, plaintiff-appellee,vs.

PRUDENCIO SALAVERIA, defendant-appellant.

Jose R. Varela for appellant.

Office of the Solicitor-General Paredes for appellee.

MALCOLM,J.:

The municipal council of Orion, Bataan, enacted, on February 28, 1917, anordinance which, among other things, prohibited the playing ofpanguingue on days not

Sundays or legal holidays, and penalized the violation thereof by a casero [housekeeper]

by a fine of not less than P10 nor more than P200, and by jugadores [gamblers] by a fine

of not less than P5 nor more than P200. The justice of the peace of Orion, when this

ordinance went into effect, was Prudencio Salaveria, now the defendant and appellant.Notwithstanding his official station, on the evening of March 8, 1917, not a Sunday or

legal holiday, seven persons including the justice of the peace an his wife were surprisedby the police while indulging in a game ofpanguingue in the house of the justice of the

peace. The chief of police took possession of the cards, the counters (sigayes), a tray, an

P2.07 in money, used in the game.

These are facts fully proven by the evince and by the admissions of the accused.Convicted in the justice of the peace court of Orion, and again in the Court of First

Instance of Bataan, Salaveria appeals to this court, making five assignments of error. The

three assignments, of a technical nature, are without merit, and a fourth, relating to the

evidence, is not sustained by the proof. The remaining assignment of error, questioningthe validity of the ordinance under which the accused was convicted, requires serious

consideration and final resolution. This ordinance in part reads:

RESOLUTION NO. 28

x x x x x x x x x

Whereas, this Council is vested with certain powers by sections 2184 and

2185 of the Administrative Code;

Whereas, it is the moral duty of this body to safeguard the tranquillity andstability of the Government and to foster the welfare and prosperity of each an allof the inhabitants of this municipality; therefore,

Be it resolved to enact, as it hereby is enacted, the following ordinance:

Ordinance No. 3


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x x x x x x x x x

Third. The games known as "Panguingue" "Manilla," "Jung-kiang,"

"Paris-Paris," "Poker," "Tute," "Burro," and "Treinta-y-uno" shall be allowed onlyon Sundays an official holidays.

x x x x x x x x x

The following penalties shall be imposed upon those who play the above

games on days other than Sundays and official holidays:

For the owner of the house: A fine of from Ten to Two hundred pesos, orsubsidiary imprisonment in case of insolvency at the rate of one peso a day.

For the gamblers: A fine of from Five to Two hundred pesos each or

subsidiary imprisonment in case of insolvency at the rate of one peso a day.

The Philippine Legislature has granted to municipalities legislative powers of a

dual character, one class mandatory an the other discretionary. Of the first class is theprovision of the Administrative Code which makes it the duty of the municipal council,

conformably with law, "to prohibit and penalize . . . gambling." (Sec. 2188 [i], Adm.

Code of 1916; sec. 2242 [i], Adm. Code of 1917.) This is a more restricted power thanthat found in the original Municipal Code which authorized a municipal council to

"provide against the evils of gambling, gambling houses, and disorderly houses of

whatsoever sort." (Act No. 82, sec. 39 [u].) The present municipal law, since making useof the word "gambling," must be construed with reference to the Insular Law, Act No.

1757, relating to the same subject. Act No. 1757 in section 1 defines "gambling" as "the

paying of any game for money or any representative of value or valuable consideration orthing, the result of which game depends wholly or chiefly upon chance or hazard, or theuse of any mechanical inventions or contrivance to determine by chance the loser or

winner of money or of any representative of value or of any valuable consideration or

thing." In the United States vs. Hilario ([1913], 24 Phil., 392), the Supreme Court wentinto the subject of the meaning of "gambling" in this jurisdiction, and found that it

includes those games the result of which depend wholly or chiefly upon chance or

hazard, and excludes those games the result of which depend wholly or chiefly upon skill,with the result that sections 621 to 625 of the Revise Ordinances of the city of Manila

(734-738 of the Revised Ordinances of 1917) were found to prohibit only games of

chance or hazard.

The ordinance of Orion, Bataan, merely prohibits the playing ofpanguingue oncertain days, without describing it. Further, although this court has considered the method

by which many other games are played, it has never as yet authoritatively decided

whether panguingue was a game of skill or hazard. Nor was any evidence on this pointintroduced in the present case. However, a reading of the decision of the trial court and of

official opinions of two Attorneys-General, of which we can take judicial cognizance,

warrants the deduction that panguingue is not a game of chance or hazard and is not


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prohibited by Act No. 1757. (See Opinions of the Attorney-General of July 11, 1904;

July 25, 1904; October 10, 1905; and September 7, 1911; also Berriz,Diccionario de la

Administracion, p. 35.) If, therefore, we were to restrict our investigation to thoseportions of the Administrative Code which authorize a municipal council to prohibit and

penalize gambling, there would exist grave doubt, to say the least, of the validity of

ordinance No. 3 of the municipality of Orion, Bataan.

There remains for consideration a different approach to the question.

While Philippine law gives to gambling a restricted meaning, it is to be noted that,

in its broader signification, gambling relates to play by certain rules at cards, dice, or

other contrivance, so that one shall be the loser an the other the winner. (20 Cyc., 878;

Bouvier's Law Dictionary; People vs. Todd [1889], 51 Hun [N. Y.], 446 451; 4 N. Y.Supp., 25.) As one example the Charter of the town of Ruston, State of Louisiana,

authorized it "to restrain, prohibit, an suppress . . . games and gambling houses and rooms

. . ., and to provide for the punishment of the persons engaged in the same." Under this

power the town passed an ordinance prohibiting "all games of chance, lottery, bankinggames, raffling, and all other species of gambling," indicating that there were other

species of gambling in addition to games of chance. (See Town of Ruston vs. Perkins[1905], 114 La., 851.) The common law notion of gambling, which only made it an

indictable offense when the play was attended by such circumstances as would in

themselves amount to a riot or a nuisance or to an actual breach of the peace, has givenway to statutes and ordinances designed to restrain, suppress, or control gambling.

Authority for the State or a municipality to take action to control gambling in this

larger sense can be found in an analysis of what is calle the police power.

Any attempt to define the police power with circumstantial precision would savorof pedantry. The United States Supreme Court tritely describes it as "the most essential ofall powers, at times the most insistent, an always one of least limitable of the powers of

government." (District of Columbia vs. Brooks [1909], 214 U.S., 138.) The police power

is based on the maxim "salus populi est suprema lex" the welfare of the people is thefirst law. The United States Supreme Court has said that it extends "to the protection of

the lives, health and property of the citizens, and to the preservation of good order and

thepublic morals." (Beer Co. vs. Massachusetts [1878] , 97 U.S., 25; Barbiervs.

Connolly [1885], 113 U.S., 27.) The Supreme Court of these Islands has said that it

extends "the police power of the state includes not only the public health safety, but also

the public welfare, protection against impositions, andgenerally the public's best

interest." (U.S. vs. Pompeya [1915], 31 Phil., 245.) Recent judicial decisions incline togive a more extensive scope to the police power that the older cases. The public welfare

is rightfully made the basis of construction.

Not only does the State effectuate its purposes through the exercise of the police

power but the municipality does also. Like the State, the police power of a municipalcorporation extends to all matters affecting the peace, order, health, morals, convenience,

comfort, and safety of its citizens the security of social order the best and highest


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interests of the municipality. (Case vs. Board of Health of Manila and Heiser [1913], 24

Phil., 250.) The best considered decisions have tended to broaden the scope of action of

the municipality in dealing with police offenses. Within the general police powers of amunicipal corporation is the suppression of gambling. Ordinances aimed in a reasonable

way at the accomplishment of this purpose are undoubtedly valid. (See U.S. vs. Pacis

[1915], 31 Phil., 524; 39 L. R. A., 523, Note; Cooley's Constitutional Limitations, 6thedition, pp. 138, 226, 742; Greenville vs. Kemmis [1900], 58 S. C., 427 [holding that

under the general welfare clause a city may pass an ordinance prohibiting gambling in

any private house].)

The Philippine Legislature, as before intimated, delegated to municipalities certainlegislative powers are named specifically. But in addition, and preceding both the specific

powers of a mandatory and discretionary character, is the general power of a municipal

council to enact ordinances and make regulations. It is this grant that the preamble of theordinance of Orion assigns as authority for its enactment. Said section 2184 of the

Administrative Code of 1916 (sec. 2238, Adm. Code of 1917) reads:

The municipal council shall enact such ordinances and make such regulations, not

repugnant to law, as may be necessary to carry into effect and discharge thepowers an duties conferred upon it by law an such as shall seem necessary and

properto provide for the health and safety, promote the prosperity, improve themorals, peace, good order, comfort, and convenience of the municipality and the

inhabitants thereof, and for the protection of property therein.

This section, known as the general welfare clause, delegates in statutory form the

police power to a municipality. As above stated, this clause has been given wide

application by municipal authorities and has in its relation to the particular circumstances

of the case been liberally construed by the courts. Such, it is well to recall, is theprogressive view of Philippine jurisprudence.

The general welfare clause has two branches. One branch attaches itself to the main

trunk of municipal authority, and relates to such ordinances and regulations as may benecessary to carry into effect and discharge the powers and duties conferred upon the

municipal council by law. With this class we are not here directly concerned. The second

branch of the clause is much more independent of the specific functions of the councilwhich are enumerated by law. It authorizes such ordinances "as shall seem necessary and

proper to provide for the health and safety, promote the prosperity, improve the morals,

peace, good order, comfort, and convenience of the municipality and the inhabitants

thereof, and for the protection of property therein."

It is a general rule that ordinances passed by virtue of the implied power found in

the general powers and purposes of the corporation, and not inconsistent with the laws or

policy of the State. The ordinance of the municipality of Orion does not seem in itself to

be pernicious, or unreasonable or discriminatory. Its purposes evidently are to improvethe morals and stimulate the industry of the people. A person is to be compelled to refrain

from private acts injurious both to himself an his neighbors. These objects, to be attained


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by limiting the pastime to definite days, do not infringe any law of the general

government.

The constitutional provision that no person shall be deprived of liberty without dueprocess of law is not violated by this ordinance. Liberty of action by the individual is not

unduly circumscribed; that is, it is not unduly circumscribed if we have in mind thecorrect notion of this "the greatest of all rights." That gravest of sociological questions

How far, consistently with freedom, may the liberties of the individual member of societybe subordinated to the will of the Government? has been debated for centuries, in

vain, if we can not now discount the time worn objection to any and all interference with

private rights in order to effectuate the public purpose. (See Jacobson vs. Massachusetts[1905], 197 U. S., 11; State vs. Kreutzberg [1902], 58 L. R. A., 748.) Almost countless

are the governmental restrictions on the citizen.

The presumption is all favor of validity. The inhabitants of a municipality are in

themselves miniature states. The action of the elected representatives of the people

cannot be lightly set aside. The councilors must, in the very nature of things, be familiarwith the necessities of their particular municipality an with all the facts and

circumstances which surround the subject, and necessities of their particular municipalityand with all the facts and circumstances which surround the subject, and necessitate

action. The local legislative body, by enacting the ordinance, has in effect given notice

that the regulations are essential to the well being of the people. Who is in a betterposition to say whether the playing ofpanguingue is deleterious to social order and the

public interest in a certain municipality the municipal council, or the courts? The

answer is self-evident. The Judiciary should not lightly set aside legislative action when

there is not a clear invasion of personal or property rights under the guise of policeregulation. (See U.S. vs. Joson [1913], 26 Phil., 1.)

President McKinley's Instructions to the Commission still remain undisturbed by

subsequent Acts of Congress dealing with Philippine affairs and yet constitute a portion

of our constitutional law, as to the inviolable rule that "municipal governments . . . shallbe afforded the opportunity to manage their own affairs to the fullest extent of which they

are capable." Again the same organic law says, "In the distribution of powers among the

governments organized by the Commission, the presumption is always to be in favor ofthe smaller subdivision, so that all the powers which can properly be exercised by the

municipal government shall be vested in that government . . . ." Let us never forget these

principles so highly protective of local self-government.

The judiciary can very well take notice of the fact that municipalities areaccustomed to enacting ordinances aimed at the regulation of gambling. The executive

authorities an the Attorney-General have usually upheld the validity of such ordinances,

especially those intended to restrict the playing ofpanguingue. (Opinions of theAttorney-General,supra; Opinion of the Executive Secretary, July 6, 1909; Indorsement

of the Governor-General, July 21, 1904.) This general municipal practice, indicative of a

social cancer to be eradicated, should not be discouraged by strict judicial construction.


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More important still, the courts cannot but realize that gambling, in its larger sense

as well as in its restricted sense, is an act beyond the pale of good morals, which, for the

welfare of the Filipino people, should be exterminated. The suppression of the evil doesnot interfere with any of the inherent rights of citizenship. The pernicious practice is

rightfully regarded as the offspring of idleness and the prolific parent of vice and

immorality, demoralizing in its association and tendencies, detrimental to the bestinterests of society, and encouraging wastefulness, thriftlessness, and a belief that a

livelihood may be earned by other means than honest industry. To be condemned in

itself, it has the further effect of causing poverty, dishonesty, fraud, and deceit. Many aman has neglected his business and mortgaged his integrity to follow the fickle Goddess

of the cards. Many a woman has wasted her hours and squandered her substance at the

gambling board while home and children were forgotten. It is highly proper that this

pastime should be subject to the control of restraints imposed by the ordinances of localgovernments peculiarly afflicted by the evil. (See In re Voss [1903], 11 N. D., 540; Ex

parte Tuttle [1891], 91, Cal., 589; Greenwood vs. State [1873], 6 Baxt., 567; 32 Am.

Rep., 539; 12 R. C. L., 709-715.)

For the suppression of such an evil, coordinate and harmonious action must concurbetween the three departments of Government. A law or ordinance enacted by the

legislative body must exist. Such an ordinance is before us. Vigorous executive

enforcement must take place to make the law or ordinance a reality. Such activity by thepolice has brought this case to the courts. And finally the Judiciary, having full respect

for the legislative action of the municipal council and for the prosecution by the executive

officials, must, by judicial construction, equally as progressive and constructive, giveeffect to the action of the other two powers. Wherefore, although panguingue is not

entirely a game of chance, since it is a proper subject for regulation by municipal

authorities acting under their delegated police power, whose laudable intention is to

improve the public morals and promote the prosperity of their people, their action shouldbe upheld by the courts. Ordinance No. 3 of Orion, Bataan, is found to be valid.

The culprit in this case is himself a member of the Judiciary. Instead of enforcing

the law, he has scorned it. His example to the people of Orion has been pernicious in itsinfluence. If gambling is to be suppressed, not only the weak and ignorant must be

punished, but those with full knowledge of the law and the consequences of violation. We

would accordingly suggest to Courts of First Instance that in all cases arising under the

Gambling Law or ordinances, except for unusual circumstances, a prison sentence shouldbe imposed, if permitted by the law or ordinance. We further suggest that, where the

defendant has been found guilty and is a man of station, he be given the maximum

penalty.lawphil.net

Applying the foregoing in this instance, it results that the defendant and appellant

must be found guilty of a violation of ordinance No. 3 of the municipality of Orion,

Bataan; and, in accordance therewith, shall be sentenced to the maximum penalty of the

payment of a fine of P200, or to subsidiary imprisonment in case of insolvency, with thecosts of all three instances against him. So ordered.


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Arellano, C.J., Torres, Araullo and Avancea, JJ., concur.

Separate Opinions

JOHNSON,J., concurring:

I concur upon the ground that the ordinance in question is fully authorized underthe "general welfare" provisions of the Municipal Code.

STREET,J., concurring:

I agree in the conclusion that the ordinance passed by the municipality of Orionprohibiting the playing ofpanguingue on secular days is valid and am of the opinion that

the authority to pass such an ordinance is to be found exclusively in section 2184 of the

Administrative Code (1916), which gives a general authority for the enactment ofordinances which seem proper to improve the morals and good order of the community.

As the game ofpanguingue is admittedly not a game of chance or hazard played for

money, it is not within the prohibitions of Act No. 1757; an I think the case should bedetermined without reference to the legislation against gambling and without reference t

the circumstance that under subsection (i) of section 2188 of the same Code the

Legislature has made it mandatory upon municipal councils to prohibit and penalize

gambling.

The legislature has clearly authorized the municipal council to use its discretion as

to the measures which it esteems desirable to promote morals an good order; and I know

of no rule of law which would justify any court in overruling that discretion in such amatter as is now before us. Certainly I would be sorry to see this court adopt a

paternalistic attitude of captious criticism and correction tending to embarrass the free

exercise of the legislative discretion vested by law in the municipal councils. Thosebodies are undoubtedly destined to make mistakes in the exercise of the powers conferredon them, but there is no better school than that of experience in which their members may

discover what is most likely to promote the welfare of the community and the interests of

their constituents.

As already suggested, I think that the Gambling Law (Act No. 1757) and theprovisions of the Municipal Code relative to the suppression of gambling, strictly


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speaking, have nothing to do with the case; and the circumstance that those measures are

upon the statute book cannot serve in the slightest degree to limit the powers of a

municipal council in legislating upon a matter not implicated with gambling. From thepreamble to the ordinance it may be seen that the council had in view the promotion of

the general well-being and the advancement of prosperity in the community; and the

ordinance was doubtless intended to discourage the playing of games which involve afrivolous and idle waste of time, rather than directly to suppress gambling. But even if the

council had suppose that the games which it proposed to regulate are calculated to foment

the gambling instinct and should be suppressed for that reason, the ordinance in questioncould not possibly have been rendered invalid by that fact.

FISHER,J., dissenting:

The importance of suppressing gambling, properly emphasized in the majority

opinion, cannot warrant a conviction where gambling is not involved. The zeal to remedy

an evil should not induce the graver evil of obliterating legal landmarks.

Gambling is the playing, for money or its equivalent, of any game of which the

result depends "wholly or chiefly upon chance or hazard, . . . ." (Act No. 1757).

The defendant herein is accused of playing panguingue, which is avowedly not a

game of chance or hazard within this definition. It is not alleged in the information thatthe playing was for money or any other thing of value. The fact that some money was

found on the table when the accused was arrested is immaterial in this case. The

ordinance under which the conviction was had does not make playing the prohibited

games for money an ingredient of the offense, and the decision of the majority proceedsupon the theory that the result would have been the same had no money been staked upon

the game.

To play a game of skill without risking anything upon the outcome is not gambling,and the prohibition of harmless amusements cannot be justified by the authority to

prohibit gambling.

In recognition of the fact that the ordinance upon which is based this prosecution

goes beyond the terms of the statutory authority, it is sought to find power to pass thesame under the general welfare clause (section 2238, Administrative Code of 1917). But

the ordinance which imposes a fine and imprisonment upon a man and wife who play a

game of cards together as mere pastime, in their own home, without risking a cent upon

the outcome, is beyond the protection of such general provision for two reasons.In thefirst place, it is unreasonably subversive of the liberty of the citizen an unnecessary. Inthe second place, the Legislature of the Islands has spoken in well defined terms on the

subject of gambling, and its pronouncement on the subject fills the field and precludes thepossibility of stretching the authority delegated to municipalities into the right to repeal,

modify, or supplement existing legislation.


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The subject of gambling has merited the attention of our Legislature and Act No.

1757 very clearly defines the intention and will of that body in the premises. Its limitation

of the prohibition is its refusal to prohibit games of skill and games in which no value isat stake, and is the exact equivalent of a pronouncement that non-gambling pastimes shall

not be prohibited.

When the legislature authorized municipalities to "penalize . . . . gambling" it was

aiming at the vice of risking money upon the hazard of a game of chance. The Legislaturehas not prohibited the playing of card games in itself an innocent pastime but the

playing for money of games of hazard. When it delegated like power to municipalities it

had a like object in view and not other.

Equally untenable, to my mind, is the attempt to justify the statute under the"general welfare" clause. The prohibition by ordinance of the playing of certain card

games as an amusement, without stake or wager, cannot be said to promote the health,

safety, morals, peace, good order, comfort or convenience of the inhabitants of a

municipality. The majority opinion contends that the purpose of the enactment was to"improve the morals and stimulate the industry of the people." Unfortunately for that

theory it appears that the ordinance expressly permits these "immoral" diversions onSundays and official holidays. I am unable to see how one's morals are to be improved by

permitting him to playpanguingue, pokerorburro all day Sunday, and then sending him

to jail for engaging in the same amusement Monday evening. So far as the "stimulation of. . . industry" is concerned, that argument might have had some weight if the prohibition

of these amusements had been limited to working hours. But such is not the case. The

inhabitants of Orion may play poker without a wager to their heart's content on

Sunday, but to do it Saturday evening, after the work of the week is over, is prohibited their morals are to be "improved" and their industry "stimulated" until midnight. After

that they may yield to their depraved instincts until midnight of Sunday, without let orhindrance. I submit that it is obvious that the ordinance in question was intendedtoprevent gambling, but is not warranted by the delegated authority of municipal councils

over this subject, because it is so drawn as to include harmless amusements not within the

legislative definition of gambling. By limiting the definition and prohibition of gamblingto the playing formoney of games ofhazard, the Legislature by implication permitted the

playing of all other games not within the prohibition. Is the "general welfare" clause of

grant of power to municipal corporation to be so construed as to make the express

delegation of power redundant and useless? If under the general welfare clause theplaying of whist or chess in one's own house, not for money, but merely for amusement,

may be prohibited under the general welfare clause, certainly the power "to penalize and

prohibit . . . gambling" must have been included in that clause. If so, the special grantrelating to gambling is merely redundant.

I submit that when a special power to enact ordinances is granted to a municipal

council upon a particular subject, the power as to that matter is to be measured by the

express grant, without enlargement by the interpretation of the general "welfare clause."The express grant of power to regulate public dance halls (section 2243 [k],

Administrative Code of 1917) is not be expanded under the general "welfare clause" so as


11/18

to authorize the prohibition and penalizing of dancing in private houses. The express

grant of power to establish and maintain streets cannot be expanded, under the general

welfare clause, this court has held, so as to authorize an ordinance to compel citizen toclean the streets. (U.S. vs. Gaspay, 33 Phil. Rep., 96.)

I think the law on this subject is correctly expressed in Judge Dillon's authoritativework on Municipal Corporations as follows:

When there are both special and general provisions, the power to pass by-laws under the special or express grant can only be exercised in the cases and to

the extent, as respects those matters, allowed by the charter or incorporating act;

and the power to pass by-laws under the general clause does not enlarge or annul

the power conferred by the special provisions in relation to their various subjectmatters, but gives authority to pass by-laws, reasonable in their character, upon all

other matters within the scope of their municipal authority, and not repugnant to

the Constitution and general laws of the State.

But if we disregard entirely the delegated power relating to the prohibition of

gambling and consider the matter from the standpoint of the general welfare clause alone,

it seems equally clear to me that the ordinance in question is void as being contrary to the

public legislative policy, as established by the Philippine Legislature. In Dillon onMunicipal Corporations (fifth edition, paragraph 601) it is said:

. . . A municipal corporation . . . cannot, in virtue of its incidental power to

pass-by-laws, or under any general grant of that authority, adopt by-laws which

infringe the spirit or are repugnant to the policy of the State as declared in itsgeneral legislation. This principle is well exemplified by a case in Ohio (Marietta

vs. Fearing, 4 Ohio, 427) in which incorporated towns were, by statute, prohibitedfrom subjecting stray animals owned by persons not residents of such town totheir corporation ordinances. It was held that an ordinance operating, not on the

animals but on the non-resident owner, in the shape of a penalty, violated the

spirit of the statute, and was void. So, in a later case in the same State, it wasshown that the general policy of the State was to allow animals to run at large;

and it was ruled that a municipal corporation with power to pass "all by-laws

deemed necessary for the well-regulation, health, cleanliness & c.," of theborough, and with power to "abate nuisances," had no authority to pass a by-law

restraining cattle from running at large, such a by-law being in contravention of

the general law of the State. (Collins vs. Hatch, 18 Ohio, 523.)

The public legislative policy is to permit the playing of card games as anamusement, without wagers upon the outcome. That is shown by the language of Act No.

1757, which, by limiting the prohibition of gambling to games of chance or hazard played

for money, by implication permits the playing of games not prohibited, and by the fact

that the Tariff Act in force (section 3) by prohibiting the importation of marked cardsimpliedly authorizes the importation of others.


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Panguingue playing may be so harmful to the people of this country that the playing of it

at any time, at any place, with or without the wagering of money, should be prohibited. If

that is so the Legislature should prohibit it. Some people regard dancing and billiards asequally harmful. If such people happen to control a given municipal council we may see

respectable citizens in jail for the offense of dancing in their own homes, for playing

casino or billiards, or ping-pong, or for engaging in any other amusement which, whilenot prohibited by any general law, may be prohibited in any municipality under this

omnibus general welfare clause.

3.)

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. L-35256 March 17, 1983

ALEJANDRO MELCHOR, JR., in his capacity as Executive Secretary,petitioner,vs.HON. JOSE L. MOYA, as Judge of the Court of First Instance of Manila,REALTY OWNERS ASSOCIATION OF THE PHILIPPINES, INC., andALBERTO GUEVARA, SR., respondents.

The Solicitor General for petitioner.

Mauro C. Reyes, Jr. & Marcelino Calica for respondent.

FERNANDO, C.J.:

The issuance of Presidential Decree No. 20 amending Republic Act No. 6359,the Rent Control Law, more than justifies the plea for the reversal of the decisionof respondent Judge Jose L. Moya, now retired, declaring the aforesaid Actunconstitutional on the ground that it is not a valid police power measure. The

Article on the Transitory Provisions of the present Constitution,

1

approved onNovember 30, 1972 and effective on January 17, 1973, 2 is explicit; PresidentialDecrees promulgated or issued, or acts done by President Ferdinand E. Marcos"shall be part of the law of the land [to] remain valid, legal, binding, and effective"except when "modified, revoked, or suspended" by him as "incumbent Presidentor unless expressly and explicitly modified or repealed by the [now BatasangPambansa]." 3 Thereafter, on January 31, 1975, inAquino, Jr. v. Commission onElections, 4 this Court upheld the power of the President to issue decrees having


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the force and effect of law by virtue of the above provision even after theeffectivity of the Constitution as clearly set forth in the ponencia of JusticeMakasiar as well as in the separate concurrence of the late Chief Justice Castro.What is more, in Gutierrez v. Cantada,5 this Court left no doubt about the bindingforce of the aforesaid Rent Control Law: "The obstacle to the reversal of a

decision of respondent Judge Santiago 0. Taada dismissing an ejectment suitagainst private respondents in this petition for certiorari by way of review comesfrom police power legislation, the first Republic Act No. 6359 and thereafterPresidential Decree No. 20. They had a common objective to remedy the plightof the lessees, Presidential Decree No. 20, moreover, having a constitutionalsanction in that it is specifically referred to in the fundamental law as part of 'thelaw of the land.'" 6

There is merit, therefore, to this certiorari proceeding by way of appeal institutedby then Executive Secretary Alejandro Melchor, Jr. from the adverse decision ofrespondent Judge.

1. Moreover, the binding force of the Gutierrez decision is reinforced by aconstitutional question of an analogous character having been therein resolved.As set forth in the opinion of that case: "He would have this Court declare thatRepublic Act No. 6359 is violative of the equal protection clause. The imputationthat a police power measure of that character intended to remedy the deplorablesituation of, lessees suffers from such infirmity, is far from persuasive. It cannotbe stigmatized as class legislation. There was a clear need for such a statute. Itwas enacted to promote the public interest and the general welfare. The State isnot compelled to stand Idly by while a considerable segment of its citizens suffersfrom economic distress. Only recently, inAgustin v. Edu, reference was made to

the 'broad and expansive scope of police power' citing Chief Justice Taney of theAmerican Supreme Court in an 1847 decision as 'nothing more or less than thepowers of government inherent in every sovereignty.' Correctly was itcharacterized by Justice Malcolm as 'that most essential, insistent, and illimitableof powers.'" 7

2. There is, it must be noted, this distinction. The objection there is based on thealleged violation of the equal protection safeguard. In this case, the reliance is onsubstantive due process. In J. M. Tuazon & Co., Inc. v. Land Tenure

Administration, 8 due process has been characterized as "the antithesis of anygovernmental act that smacks of whim or caprice. It negates state power to act inan oppressive manner. It is, as had been stressed so often, the embodiment ofthe sporting Idea of fair play. In that sense, it stands as a guaranty of justice.That is the standard that must be met by any governmental agency in theexercise of whatever competence is entrusted to it. As was so emphaticallystressed by the [then] Chief Justice, 'acts of Congress, as well as those of theExecutive, can deny due process only under pain of nullity. ... " 9 Under thatstandard, the finding of respondent Judge that there was lack of substantive dueprocess certainly is bereft of plausibility. How can a measure specifically


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FERNANDO,Actg. C.J.:

The obstacle to the reversal of a decision of respondent Judge Santiago O. Taada

dismissing an ejectment suit against private respondents1

in this petition for certiorari byway of review comes from police power legislation, the first Republic Act No. 6539 and

thereafter Presidential Decree No. 20. They had a common objective to remedy the plight

of the lessees, Presidential Decree No. 20, moreover, having a constitutional sanction inthat it is specifically referred to in the fundamental law as part of "the law of the land." 2

Under the former statute, actions for ejectment were "suspended from two years from the

effectivity" thereof. 3It took effect on July 14, 1971. The complaint for ejectment in thislitigation was filed on April 22, 1972. Such a period was made indefinite by PresidentialDecree No. 20 thus: "Except when the lease is for a definite period, the provisions of

paragraph (1) of Article 1673 of the Civil Code of the Philippines insofar as they refer to

dwelling unit or land on which another's dwelling is located shall be suspended until

otherwise provided; but other provisions of the Civil Code and the Rules of Court of thePhilippines on lease contracts, insofar as they are not in conflict with the provisions of

this Act, shall apply ." 4Under paragraph (1) of Article 1673 of the Civil Code, one of thegrounds for judicially ejecting the lessee is the expiration of the period fixed for the

duration of the lease. 5

Petitioners in this proceeding were the plaintiffs in Civil Case No. 8805 for ejectment

filed with the City Court of Caloocan City on April 27, 1972, against a certain BenjaminLeyva. With leave of court, and within the reglementary period, respondent spouses filed

on May 2, 1972 an answer in intervention to the complaint. In such pleading, they

admitted that plaintiffs, now petitioners, are the owners of the land on which their house

is built, including as an affirmative defense the fact that their life savings were spent forthe purchase of that house, a transaction entered into only because they were given the

assurance by petitioners as lessors that they would be allowed to remain for a substantial

number of years. After trial duly had in the City Court of Caloocan City, a decision insaid ejectment action, in favor of the petitioners and against respondent spouses was

promulgated on September 21, 1972. Respondent spouses on the same day appealed to

the Court of First Instance of Rizal, Caloocan City Branch XXXIII, presided over byrespondent Judge. On February 14, 1973, respondent Judge rendered a decision on the

case, reversing the City Court of Caloocan City, Branch II, dismissing the complaint for

ejectment.

In such decision, respondent Judge stated the following. "From the evidence thusadduced, it is unmistakably clear that this case comes under the coverage of the rental law

of 1971, Republic Act No. 6359. Here, the rental stipulated is only for P30.00 or P40.00 a

month for the occupancy of defendant-intervenor on plaintiffs' property. The residentialhouse of said intervenor is involved. There is an agreement as to use of the premises

between the plaintiffs and the defendants-intervenors. It cannot be claimed that the

plaintiffs were not informed nor that did they know about the occupancy of theintervenors on their property or intervenors' having purchased the house of their


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Gamboa, 10 decided in 1950, a police power measure being remedial in character covers

existing situations; otherwise, it would be self-defeating. InAbe v. Foster Wheeler Corp.,11Justice Barrera speaking for the Court, took note of the contention "that as the contractsof employment were entered into at a time when there was no law granting the workers

said right, the application as to them of the subsequent enactment restoring the same right

constitutes an impairment of their contractual obligations." Then he made clear why theCourt was of a contrary view as "the constitutional guaranty of non- impairment ... is

limited by the exercise of the police power of the State, in the interest of public health,

safety, morals and general welfare " 12So it must be in this case.

2. The futility of this petition is thus apparent. A belated attempt by counsel forpetitioners by raising a constitutional question is equally unavailing. He would have this

Court declare that Republic Act No. 6539 is violative of the equal protection clause. The

imputation that a Police power measure of that character intended to remedy thedeplorable situation of lessees 13 suffers from such infirmity, is far from persuasive, It

cannot be stigmatized as class legislation. There was a clear need for such a statute. It

was enacted to promote the public interest and the general welfare. The State is notcompelled to stand Idly by while a considerable segment of its citizens suffers fromeconomic distress. Only recently, inAgustin v. Edu, 14 reference was made to the "broad

and expansive scope of police power" citing Chief Justice Taney of the American

Supreme Court in an 1847 decision as "nothing more or less than the powers ofgovernment inherent in every sovereignty " 15 Correctly was it characterized by Justice

Malcolm as "that most essential, insistent, and illiminate of powers." 16 Moreover, there is

a procedural objection to this last-ditch effort, the well-settled rule being that theconstitutional question should be raised at the earliest opportunity. 17Nor does this casefalls within one of the exceptions mentioned inPeople v. Vera. 18 Even if success could

have attended this maneuver, still there is the insuperable barrier posed by Presidential

Decree No. 20 which was relied upon in the objection of private respondents to themotion for reconsideration. It was therefore within the cognizance of respondent Judge,

as it ought to have been all the while. Petitioners apparently had nothing to say about this

Presidential Decree. They ought not to have been surprised at its being applied being apart "of the law of the land." To repeat, petitioner had failed to make out a case for

reversal.

3. At any rate, as of April 10, 1979, a new Rent Control Law, Batas Pambansa Blg. 25

was signed by the President and took effect immediately. Petitioners, if falling within theterms thereof, may avail themselves of the benefits of this new legislation

WHEREFORE, the petition for certiorari is dismissed. Costs against petitioners.

clu v executive secretary

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