II. Police Power A. Definition, Scope & Basis 1.

Definition / Description Police power is the power of promoting the public welfare by restraining and regulating the use of liberty and property. (Freund, The Police Power [Chicago, 1904]). Police power is the power of the State to place restraints on the personal freedom and property rights of persons for the protection of the public safety, health, and morals or the promotion of the public convenience and general prosperity. The police power is subject to limitations of the Constitution, and especially to the requirement of due process. Police power is the exercise of the sovereign right of a government to promote order, safety, security, health, morals and general welfare within constitutional limits and is an essential attribute of government (Marshall vs. Kansas City, Mo., 355 S.W.2d 877, 883) Police power has been defined as the state authority to enact legislation that may interfere with personal liberty or property in order to promote the general welfare. As defined, it consists of (1) an imposition of restraint upon liberty or property, (2) in order to foster the common good. It is not capable of an exact definition but has been, purposely, veiled in general terms to underscore its all-comprehensive embrace. (Sangalang vs. IAC, [GR 71169, 25 August 1989]) 2. Scope Police power regulates not only the property but, more importantly, the liberty of private persons, and virtually all the people. The scope of police power, ever-expanding to meet the exigencies of the times, even to anticipate the future where it could be done provides enough room for an efficient and flexible response to conditions and circumstances thus assuring the greatest benefits. (Sangalang vs. IAC, [GR 71169, 25 August 1989]) 3. Basis The justification for police power is found in the ancient Latin maxims, Salus populi est suprema lex, and Sic utere tuo ut alienum non laedas, which call for the subordination of individual benefit to the interests of the greater number. Salus populi est suprema lex. The welfare of the people is the supreme law. (Lingo Lumber Co. vs. Hayes, Tex. Civ. App. 64 SW 2d. 835, 839) Sic utere tuo ut alienum non laedas. (Common law maxim meaning that) one should use his own property in such a manner as not to injure that of another (1 Bl. Comm. 306. Chapman vs. Barnett, 131 Ind. App. 30, 169 N.E. 2d 212, 214).

It is a power not emanating from or conferred by the constitution, but inherent in the state, plenary, suitably vague and far from precisely defined, rooted in the conception that man in organizing the state and imposing upon the government limitations to safeguard constitutional rights did not intend thereby to enable individual citizens or group of

citizens to obstruct unreasonably the enactment of such salutary measures to ensure communal peace, safety, good order and welfare. (Lozano vs. Martinez, 146 SCRA 323) The police power of the State is a power coextensive with self-protection, and it is not inaptly termed the law of overwhelming necessity. It may be said to be that inherent and plenary power in the State which enables it to prohibit all things hurtful to the comfort, safety, and welfare of society. It finds no specific Constitutional grant for the plain reason that it does not owe its origin to the Charter. Along with the taxing power and eminent domain, it is inborn in the very fact of statehood and sovereignty. It is a fundamental attribute of government that has enabled it to perform the most vital functions of governance. It is the plenary power of the State to govern its citizens. (Sangalang vs. IAC, [GR 71169, 25 August 1989]) B. Characteristics Pervasive and non-waivable. The police power is the pervasive and non-waivable power and authority of the sovereign to secure and promote all the important interests and needs or the public order of the general community. (Tablarin vs. Judge Gutierrez, [GR 78164, 31 July 1987]) Essential, insistent and illimitable. The police power of the state has been described as the most essential, insistent and illimitable of powers, which enables it to prohibit all things hurtful to the comfort, safety and welfare of society. (Lozano vs. Martinez, [GR L63419, 18 December 1986]) Dynamic. Police power is a dynamic force that enables the state to meet the exigencies of changing times. There are occasions when the police power of the state may even override a constitutional guaranty, such as that the constitutional provision on nonimpairment of contracts must yield to the police power of the state. (Lozano vs. Martinez, [GR L-63419, 18 December 1986]) Police power is dynamic, not static, must move with the moving society it is supposed to regulate. Once exercised, it is not deemed exhausted and may be exercised repeatedly, as often as it is necessary for the protection or the promotion of the public welfare. Police power may sometimes use the taxing power as an implement for the attainment of a legitimate police objective. C. Who exercises said power? On the legislative organs of the government, whether national of local, primarily rest the exercise of the police power, which is the power to prescribe regulations to promote the health, morals, peace, good order, safety and general welfare of the people. In view of

the requirements of due process, equal protection and other applicable constitutional guaranties, however, the exercise of such police power insofar as it may affect the life, liberty or property of any person is subject to judicial inquiry. Where such exercise of police power may be considered as either capricious, whimsical, unjust or unreasonable, a denial of due process or a violation of any other applicable constitutional guaranty may call for correction by the courts. (Ermita-Malate Hotel & Motel Operators v. City Mayor, [GR L- 24693, 31 July 1967])

1. Police power is lodged primarily in the national legislature. By virtue of a valid delegation of legislative power, it may also be exercised by the President and administrative boards as well as the lawmaking bodies on all municipal levels, including the barangay. Police power cannot be bargained away through the medium of a contract or even a treaty. 2. Police power under the general welfare clause authorizes the municipal council to enact such ordinances and make such regulations, not repugnant to law, as may be necessary to carry into effect and discharge the powers and duties conferred upon it by law and such as shall seem necessary and proper to provide for the 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. (Villanueva vs. Castaneda, [GR L-61311, 21 September 1987]) The exercise of police power, the choice of measures or remedies if indeed action is made, and the ascertainment of facts to which police power is to be based, lies in the discretion of the legislative department. No mandamus is available to coerce the exercise of the police power. The only remedy against legislative inaction is a resort to the bar of public opinion, a refusal of the electorate to return to members of the legislature who have been remiss in the discharge of their duties. The remedy chosen by the legislature cannot be attacked on the ground that it is not the best suggested solution, that it is unwise, impractical, inefficacious, or even immoral. These issues are political in nature, and cannot be inquired into by the legislature. D. Tests of Police Power 1. Lawful subject. The interests of the public generally, as distinguished from those of a particular class, require the exercise of the police power. The enjoyment of private rights, when within the scope of police power, may be subordinated to the interests of the greater number. 2. Lawful means. The means employed are reasonably necessary for the accomplishment of the purpose and not unduly oppressive upon individuals. The lawful objective must be pursued through a lawful method. The means employed for the accomplishment of the police objective must pass to the test of reasonableness and conform to the safeguards embodied in the Bill of Rights for the protection of private rights. a. Rational Relations Test (property rights) A mere reasonable or rational relation between the means employed by the law and its object or purpose that the law is neither arbitrary nor discriminatory nor oppressive would suffice to validate a law which restricts or impairs property rights. (PBMEO vs.

PBM, [GR L-31195, 5 June 1973]) Notwithstanding the new equal protection approach with its emphasis on suspect classification and fundamental rights and interests standard, the rational relation test still retains its validity. (Bautista v. Juinio [GR L50908, 31 January 1984]) b. Clear and present danger Test (human rights)

A constitutional or valid infringement of human rights requires a more stringent criterion, namely existence of a grave and immediate danger of a substantive evil which the State has the right to prevent. (PBMEO vs. PBM, [GR L-31195, 5 June 1973]) !!! Case(s) 2. Lozano vs. Martinez, 146 SCRA 323 (1986) 3. Del Rosario vs. Bengzon, 180 SCRA 521 (1989) 4. Tablarin vs. Judge Gutierrez, 152 SCRA 730 (1987) Zoning and Regulatory Ordinances: Test of a valid ordinance An ordinance must conform to the following substantive requirements: (1) it must not contravene the constitution or any statute, (2) it must not be unfair or oppressive, (3) it must not be partial or discriminatory, (4) it must not prohibit but may regulate trade, (5) it must be general and consistent with public policy, and (6) it must not be unreasonable. (Magtajas v. Pryce Properties Corp. [GR 111097, 20 July 1994]) !!! Case(s) 5. Ermita-Malate Hotel & Motel Operators v. City Mayor, 20 SCRA 849 (1967) 6. Sangalang vs. IAC, 176 SCRA 719 (1989) 7. Villanueva vs. Castaneda, 154 SCRA 142 (1987) 8. Cruz vs. Paras, 123 SCRA 569 (1983) 9. Velasco vs. Villegas, 120 SCRA 568 (1983) 10. Magtajas vs. Pryce Properties, 234 SCRA 255 (1994) 11. Tano v. Socrates, G.R. 110249, August 27, 1997 Administrative Rules and Regulations !!! Case(s) 12. Bautista vs. Junio, 127 SCRA 329 (1984) 13. Taxicab Operators of Metro Manila vs. BOT, 119 SCRA 597 (1982) 14. Anglo-Fil Trading vs. Lazaro, 124 SCRA 494 (1983)

Lozano v. Martinez [GR L-63419, 18 December 1986] En Banc, Yap (J): 9 concur

Facts: Batas Pambansa 22 (BP22; Bouncing Check Law) was approved on 3 April 1979. The petitions arose from cases involving prosecution of offenses under BP22. (Florentina A. Lozano vs. RTC Judge Antonio M. Martinez [Manila, Branch XX] in GR L63419, Luzviminda F. Lobaton vs. RTC Executive Judge Glicerio L. Cruz [Lemery Batangas, Branch V] in GR L- 66839-42, Antonio and Susan Datuin vs. RTC Judge Ernani C. Pano [Quezon City, Branch LXXVIII] in GR 71654, Oscar Violago vs. RTC Judge Ernani C. Pano [Quezon City, Branch LXXVIII] in GR 74524-25, Elinor Abad vs. RTC Judge Nicolad A. Gerochi Jr. [Makati, Branch 139] in GR 75122-49, Amable and Sylvia Aguiluz vs. Presiding Judge of Branch 154 of Pasig in GR 75812-13, Luis M. Hojas vs. RTC Judge Senen Penaranda [Cagayan de Oro, Branch XX] in GR 72565-67, and People vs. RTC Judge David Nitafan [Manila, Branch 52] and Thelma Sarmiento in GR 75789]. Lozano, Lobaton, Datuin, Violago, Abad, Aguiluz, Hojas and Sarmiento moved seasonably to quash the informations on the ground that the acts charged did not constitute an offense, the statute being unconstitutional. The motions were denied by the trial courts, except in one case, which is the subject of GR 75789 (People vs. Nitafan), wherein the trial court declared the law unconstitutional and dismissed the case. The parties adversely affected have come to the Supreme Court for relief. Issue: Whether BP 22 is a valid legislative act. Held:> Yes. It is within the authority of the legislature to enact such a law in the exercise of the police power. It is within the prerogative of the lawmaking body to proscribe certain acts deemed pernicious and inimical to public welfare. Acts mala in se are not the only acts which the law can punish. An act may not be considered by society as inherently wrong, hence, not malum in se, but because of the harm that it inflicts on the community, it can be outlawed and criminally punished as malum prohibitum. BP 22 is aimed at putting a stop to or curbing the practice of issuing checks that are worthless, i.e. checks that end up being rejected or dishonored for payment. The thrust of the law is to prohibit, under pain of penal sanctions, the making of worthless checks and putting them in circulation. The law punishes the act not as an offense against property, but an offense against public order. It is not the non-payment of an obligation which the law punishes, nor is it intended or designed to coerce a debtor to pay his debt. Further, a statute is presumed to be valid. Every presumption must be indulged in favor of its constitutionality. Where it is clear that the legislature has overstepped the limits of its authority under the constitution, the Court should not hesitate to wield the axe and let it fall heavily on the offending statute.

Ermita Malate Hotel & Motel Operators Association v. City of Manila [GR L-24693, 31 July 1967] En Banc, Fernando (J): 7 concur, 2 on leave Facts: On 13 June 1963, Ordinance 4760 was issued by the municipal board of the City of Manila and approved by Vice Mayor Herminio Astorga, who was at the time acting Mayor of the City of Manila. The ordinance (1) imposes a P6,000.00 fee per annum for first class motels and P4,500.00 for second class motels; (2) requires the owner, manager, keeper or duly authorized representative of a hotel, motel, or lodging house to refrain from entertaining or accepting any guest or customer or letting any room or other quarter to any person or persons without his filling up the prescribed form in a lobby open to public view at all times and in his presence, wherein the surname, given name and middle name, the date of birth, the address, the occupation, the sex, the nationality, the length of stay and the number of companions in the room, if any, with the name, relationship, age and sex would be specified, with data furnished as to his residence certificate as well as his passport number, if any, coupled with a certification that a person signing such form has personally filled it up and affixed his signature in the presence of such owner, manager, keeper or duly authorized representative, with such registration forms and records kept and bound together; (3) provides that the premises and facilities of such hotels, motels and lodging houses would be open for inspection either by the City Mayor, or the Chief of Police, or their duly authorized representatives. The ordinance also classified motels into two classes and required the maintenance of certain minimum facilities in first class motels such as a telephone in each room, a dining room or restaurant and laundry; while second class motels are required to have a dining room. It prohibited a person less than 18 years old from being accepted in such hotels, motels, lodging houses, tavern or common inn unless accompanied by parents or a lawful guardian and made it unlawful for the owner, manager, keeper or duly authorized representative of such establishments to lease any room or portion thereof more than twice every 24 hours. It provided a penalty of automatic cancellation of the license of the offended party in case of conviction. On 5 July 1963, the Ermita-Malate Hotel and Motel Operators Association (EMHMOA), its member Hotel del Mar, and a certain Go Chiu filed a petition for prohibition against the mayor of the City of Manila in his capacity as he is charged with the general power and duty to enforce ordinances of the City of Manila and to give the necessary orders for the faithful execution and enforcement of such ordinances. There was a plea for the issuance of preliminary injunction and for a final judgment declaring the above ordinance null and void and unenforceable. The lower court on 6 July 1963 issued a writ of preliminary injunction ordering the Mayor to refrain from enforcing said Ordinance 4760 from and after 8 July 1963. After the submission of the memoranda, ruled that the City of Manila lack authority to regulate motels and rendering Ordinance 4760 unconstitutional and

therefore null and void. It made permanent the preliminary injunction issued by the Mayor and his agents to restrain him from enforcing the ordinance. The Mayor of Manila appealed to the Supreme Court. Issue: Whether the regulations imposed on motels and hotels (increasing license fees, partially restricting the freedom to contract, and restraining the liberty of individuals) is valid and/or constitutional.

Held: Yes. The ordinance was enacted to minimize certain practices hurtful to public morals. It was made as there is observed an alarming increase in the rate of prostitution, adultery and fornication in Manila traceable in great part to the existence of motels, which provide a necessary atmosphere for clandestine entry, presence and exit and thus become the ideal haven for prostitutes and thrill seekers. The ordinance proposes to check the clandestine harboring of transients and guests of these establishments by requiring these transients and guests to fill up a registration form, prepared for the purpose, in a lobby open to public view at all times, and by introducing several other amendatory provisions calculated to shatter the privacy that characterizes the registration of transients and guests. The increase in the license fees was intended to discourage establishments of the kind from operating for purpose other than legal and to increase the income of the city government. Further, the restriction on the freedom to contract, insofar as the challenged ordinance makes it unlawful for the owner, manager, keeper or duly authorized representative of any hotel, motel, lodging house, tavern, common inn or the like, to lease or rent any room or portion thereof more than twice every 24 hours, with a proviso that in all cases full payment shall be charged, cannot be viewed as a transgression against the command of due process. It is neither unreasonable nor arbitrary. Precisely it was intended to curb the opportunity for the immoral or illegitimate use to which such premises could be, and, are being devoted. Furthermore, the right of the individual is necessarily subject to reasonable restraint by general law for the common good. The liberty of the citizen may be restrained in the interest of the public health, or of the public order and safety, or otherwise within the proper scope of the police power. State in order to promote the general welfare may interfere with personal liberty, with property, and with business and occupations. Persons and property may be subjected to all kinds of restraints and burdens, in order to secure the general comfort, health, and prosperity of the state.

Velasco v. Villegas [GR L-24153, 14 February 1983] En Banc, Fernando (J): 10 concur, 1 reserving vote, 1 took no part Facts: Ordinance 4964 was issued by the city of Manila prohibiting any operator of any barbershop to conduct the business of massaging customers or other persons in any adjacent room(s) of said barber shop, or in any room(s) within the same building where the barber shop is located as long as the operator of the barber shop and the rooms where massaging is conducted is the same person. Tomas Velasco, Lourdes Ramirez, Sy Pin, Edmundo Unson, Apolonia Ramirez, and Lourdes Lomibao, as component members of the Sta. Cruz Barbershop Association, filed petition for declaratory relief with the lower court, challenging the constitutionality of the ordinance as it allegedly amounts to a deprivation of property of their means of livelihood without due process of law. The petition was denied by the lower court as its availability being dependent on there being as yet no case involving such issue having been filed. Hence, the appeal. Issue: Whether Ordinance 4964 is a valid police power measure. Held: The objectives behind its enactment are: (1) To be able to impose payment of the license fee for engaging in the business of massage clinic under Ordinance 3659 as amended by Ordinance 4767, an entirely different measure than the ordinance regulating the business of barbershops and, (2) in order to forestall possible immorality which might grow out of the construction of separate rooms for massage of customers. The Court has been most liberal in sustaining ordinances based on the general welfare clause. It has made clear the significance and scope of such a clause, which delegates in statutory form the police power to a municipality. The 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 is the progressive view of Philippine jurisprudence and it has continued to be.

Magtajas v. Pryce Properties Corp. [GR 111097, 20 July 1994] En Banc, Cruz (J): 12 concur Facts: The Philippine Amusement and Gaming Corporation (PAGCOR) is a corporation created directly by Presidential Decree 1869 to help centralize and regulate all games of chance, including casinos on land and sea within the territorial jurisdiction of the Philippines (the constitutionality of the decree was sustained in Basco v. Philippine Amusements and Gambling Corporation). Cagayan de Oro City, like other local political subdivisions, is empowered to enact ordinances for the purposes indicated in the Local Government Code. It is expressly vested with the police power under what is known as the General Welfare Clause embodied in Section 16. Its Sangguniang Panglungsod derives its powers, duties and functions under Section 458 of said Code. In 1992, following its success in several cities, PAGCOR decided to expand its operations to Cagayan de Oro City. To this end, it leased a portion of a building belonging to Pryce Properties Corporation Inc., renovated and equipped the same, and prepared to inaugurate its casino there during the Christmas season. The reaction of the Sangguniang Panlungsod of Cagayan de Oro City was swift and hostile. On 7 December 1992, it enacted Ordinance 3353 (An Ordinance Prohibiting the issuance of business permit and canceling existing business permit to any establishment for the using and allowing to be used its premises or portion thereof for the operation of Casino). On 4 January 1993, it adopted a sterner Ordinance 3375-93 (An Ordinance prohibiting the operation of Casino and providing penalty for violation therefore). Pryce assailed the ordinances before the Court of Appeals, where it was joined by PAGCOR as intervenor and supplemental petitioner. The Court found the ordinances invalid and issued the writ prayed for to prohibit their enforcement. Reconsideration of the decision was denied on 13 July 1993. Cagayan de Oro City and its mayor filed a petition for review under Rules of Court with the Supreme Court. Issue: Whether the Sangguniang Panlungsod of Cagayan de Oro can prohibit the establishment of a casino, or gambling, operated by PAGCOR through an ordinance or resolution. Held: The morality of gambling is not justiciable issue. Gambling is not illegal per se. While it is generally considered inimical to the interests of the people, there is nothing in the Constitution categorically proscribing or penalizing gambling or, for that matter, even mentioning it at all. It is left to Congress to deal with the activity as it sees fit. In the exercise of its own discretion, the legislature may prohibit gambling altogether or allow it without limitation or it may prohibit some forms of gambling and allow others for whatever reasons it may consider sufficient. Further, there are two kinds of gambling, to wit, the illegal and those authorized by law. Legalized gambling is not a modern concept; it is probably as old as illegal gambling, if not indeed more so. The suggestion

that the Local Government Code (LGC) authorize Local Government Units (LGUs) to prohibit all kinds of gambling would erase the distinction between these two forms of gambling without a clear indication that this is the will of legislature. Ordinances should not contravene a statute as municipal governments are only agents of the national government. Local councils exercise only delegated legislative powers conferred on them by Congress as the national lawmaking body. The delegate cannot be superior to the principal or exercise powers higher than those of the latter.