Republic of the Philippines
SUPREME COURT
Manila

EN BANC

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

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, an ordinance which, among other things, prohibited the playing of panguingue 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 surprised by the police while indulging in a game of panguingue 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, questioning the 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 and stability of the Government and to foster the welfare and prosperity of each an all of the inhabitants of this municipality; therefore,

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

Ordinance No. 3

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 only on 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, or subsidiary 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 the provision 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 than that 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 use of 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 or thing, the result of which game depends wholly or chiefly upon chance or hazard, or the use 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 went into 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 of panguingue on certain 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 point introduced 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 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 those portions 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, banking games, 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 given way 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 savor of pedantry. The United States Supreme Court tritely describes it as "the most essential of all 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 the first 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 the public morals." (Beer Co. vs. Massachusetts [1878] , 97 U.S., 25; Barbier vs. 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, and generally the public's best interest." (U.S. vs. Pompeya [1915], 31 Phil., 245.) Recent judicial decisions incline to give 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 municipal corporation extends to all matters affecting the peace, order, health, morals, convenience, comfort, and safety of its citizens the security of social order the best and highest interests of the municipality. (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 a municipal 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, 6th edition, 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 certain legislative 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 the ordinance 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 the powers an duties conferred upon it by law an 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.

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 the progressive 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 be necessary 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 council which 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 improve the 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 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 due process 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 the correct 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 society be 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 familiar with the necessities of their particular municipality an with all the facts and circumstances which surround the subject, and necessities of their particular municipality and 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 better position to say whether the playing of panguingue 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 police regulation. (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 . . . shall be 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 of the 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 are accustomed 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 of panguingue. (Opinions of the Attorney-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.

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 does not 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 best interests 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 a man 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 local governments 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 concur between 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 the police 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, give effect 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 should be 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 its influence. 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 should be 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 the costs of all three instances against him. So ordered.

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





Separate Opinions


JOHNSON, J., concurring:

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

STREET, J., concurring:

I agree in the conclusion that the ordinance passed by the municipality of Orion prohibiting the playing of panguingue 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 of ordinances which seem proper to improve the morals and good order of the community. As the game of panguingue 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 be determined 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 a matter 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. Those bodies are undoubtedly destined to make mistakes in the exercise of the powers conferred on 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 the provisions of the Municipal Code relative to the suppression of gambling, strictly 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 the preamble 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 a frivolous 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 question could 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 that the 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 proceeds upon 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 the same 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 the first place, it is unreasonably subversive of the liberty of the citizen an unnecessary. In the 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 the possibility of stretching the authority delegated to municipalities into the right to repeal, modify, or supplement existing legislation.

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 is at 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 Legislature has 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 on Sundays and official holidays. I am unable to see how one's morals are to be improved by permitting him to play panguingue, poker or burro 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 or hindrance. I submit that it is obvious that the ordinance in question was intended to prevent 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 gambling to the playing for money of games of hazard, 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 the playing 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 grant relating 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 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 to clean the streets. (U.S. vs. Gaspay, 33 Phil. Rep., 96.)

I think the law on this subject is correctly expressed in Judge Dillon's authoritative work 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 subject matters, 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 on Municipal 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 its general legislation. This principle is well exemplified by a case in Ohio (Marietta vs. Fearing, 4 Ohio, 427) in which incorporated towns were, by statute, prohibited from subjecting stray animals owned by persons not residents of such town to their 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 was shown 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 the borough, 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 an amusement, 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 cards impliedly authorizes the importation of others.

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 as equally 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, while not prohibited by any general law, may be prohibited in any municipality under this omnibus general welfare clause.




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