Adair v. United States (No.
293) act shall include all bridges and ferries used or operated in connection with any
It is not within the power of Congress to make it a criminal offense against the
United States for a carrier engaged in interstate commerce, or an agent or officer
thereof, to discharge an employee simply because of his membership in a labor
organization, and the provision to that effect in 10 of the act of June 1, 1898, 30
Stat. 424, concerning interstate carriers is an invasion of personal liberty, as well as
of the right of property, guaranteed by the Fifth Amendment to the Constitution of
the United States, and is therefore unenforceable as repugnant to the declaration of
that amendment that no person shall be deprived of liberty or property without due
process of law.
While the rights of liberty and property guaranteed by the Constitution against
deprivation without due process of law, are subject to such reasonable restrictions
as the common good or general welfare may require, it is not within the functions of
government -- at least in the absence of contract -- to compel any person in the
course of his business, and against his will, either to employ, or be employed by,
another. An employer has the same right to prescribe terms on which he will employ
one to labor as an employee has to prescribe those on which he will sell his labor,
and any legislation which disturbs this equality is an arbitrary and unjustifiable
interference with liberty of contract.
Quare, and not decided, whether it is within the power of Congress to make it a
criminal offense against the United States for either an employer engaged in
interstate commerce or his employee to disregard, without sufficient notice or
excuse, the terms of a valid labor contract.
The power to regulate interstate commerce is the power to prescribe rules by which
such commerce must be governed, but the rules prescribed must have a real and
substantial relation to, or connection with, the commerce regulated, and as that
relation does not exist between the membership of an employee in a labor
organization and the interstate commerce with which he is connected, the provision
above referred to in 10 of the act of June 1, 1898 cannot be sustained as a
regulation of interstate commerce, and, as such, within the competency of Congress.
The power to regulate interstate commerce, while great and paramount, cannot be
exerted in violation of any fundamental right secured by other provisions of the
National Constitution. [p162]
The provision above referred to, in 10 of the act of June 1, 1898, is severable, and it
unconstitutionality may not affect other provision of the act or provisions of that
section thereof.
The facts, which involve the constitutionality of 10 of the act of Congress
concerning carriers engaged in interstate commerce (known as the Erdman Act),
passed June 1, 1898, c. 370, 30 Stat. 424, are stated in the opinion. [p166]
HARLAN, J., Opinion of the Court
MR. JUSTICE HARLAN delivered the opinion of the court.
This case involves the constitutionality of certain provisions of the act of Congress of
June 1, 1898, 30 Stat. 424, c. 370, [p167] concerning carriers engaged in interstate
commerce and their employes.
By the first section of the act, it is provided:
That the provisions of this act shall apply to any common carrier or carriers and their
officers, agents, and employes, except masters of vessels and seamen, as defined in
section 4612, Revised Statutes of the United States, engaged in the transportation
of passengers or property wholly by railroad, or partly by railroad and partly by
water, for a continuous carriage or shipment, from one State or Territory of the
United States, or the District of Columbia, to any other State or Territory of the
United States, or the District of Columbia, or from any place in the United States to
an adjacent foreign country, or from any place in the United States through a foreign
country to any other place in the United States. The term "railroad" as used in this
railroad, and also all the road in use by any corporation operating a railroad,
whether owned or operated under a contract, agreement or lease, and the term
"transportation" shall include all instrumentalities of shipment or carriage. The term
"employees" as used in this act shall include all persons actually engaged in any
capacity in train operation or train service of any description, and notwithstanding
that the cars upon or in which they are employed may be held and operated by the
carrier under lease or other contract: Provided, however, That this act shall not be
held to apply to employees of street railroads and shall apply only to employees
engaged in railroad train service. In every such case the carrier shall be responsible
for the acts and defaults of such employees in the same manner and to the same
extent as if said cars were owned by it and said employees directly employed by it,
and any provisions to the contrary of any such lease or other contract shall be
binding only as between the parties thereto and shall not affect the obligations of
said carrier either to the public or to the private parties concerned. [p168]
The 2d 3d 4th, 5th, 6th, 7th, 8th and 9th sections relate to the settlement, by means
of arbitration, of controversies concerning wages, hours of labor, or conditions of
employment arising between a carrier subject to the provisions of the act and its
employees, which seriously interrupt or threaten to interrupt the business of the
carrier. Those sections prescribe the mode in which controversies may be brought
under the cognizance of arbitrators, in what way the arbitrators may be designated,
and the effect of their decisions. The first subdivision of 3 contains a proviso "that
no employee shall be compelled to render personal service without his consent."
The 11th section relates to the compensation and expenses of the arbitrators.
By the 12th section the act of Congress of October 1, 1888, 25 Stat. 501, c. 1063,
creating boards of arbitrators or commissioners for settling controversies and
differences between railroad corporations and other common carriers engaged in
interstate or territorial transportation of persons or property and their employees,
was repealed.
The 10th section, upon which the present prosecution is based, is in these words:
That any employer subject to the provisions of this act and any officer, agent, or
receiver of such employer, who shall require any employee, or any person seeking
employment, as a condition of such employment, to enter into an agreement, either
written or verbal, not to become or remain a member of any labor corporation,
association, or organization; or shall threaten any employee with loss of
employment, or shall unjustly discriminate against any employee because of his
membership in such a labor corporation, association, or organization; or who shall
require any employee or any person seeking employment, as a condition of such
employment, to enter into a contract whereby such employee or applicant for
employment shall agree to contribute to any fund for charitable, social, or beneficial
purposes; to release such employer from legal liability for any personal injury by
reason of any benefit received from [p169] such fund beyond the proportion of the
benefit arising from the employer's contribution to such fund; or who shall, after
having discharged an employee, attempt or conspire to prevent such employee from
obtaining employment, or who shall, after the quitting of an employee, attempt or
conspire to prevent such employee from obtaining employment, is hereby declared
to be guilty of a misdemeanor, and, upon conviction thereof in any court of the
United States of competent jurisdiction in the district in which such offense was
committed, shall be punished for each offense by a fine of not less than one hundred
dollars and not more than one thousand dollars.
It may be observed in passing that, while that section makes it a crime against the
United States to unjustly discriminate against an employee of an interstate carrier
because of his being a member of a labor organization, it does not make it a crime
to unjustly discriminate against an employee of the carrier because of his not being
a member of such an organization.
The present indictment was in the District Court of the United States for the Eastern
District of Kentucky against the defendant Adair.
The first count alleged that at and before the time hereinafter named, the Louisville
and Nashville Railroad Company is and was a railroad corporation, duly organized
and existing by law and a common carrier engaged in the transportation of
passengers and property wholly by steam railroad for a continuous carriage and
shipment from one State of the United States to another State of the United States
of America, that is to say, from the State of Kentucky into the States of Ohio, Indiana
and Tennessee, and from the State of Ohio into the State of Kentucky, and was at all
times aforesaid and at the time of the commission of the offense hereinafter named,
a common carrier of interstate commerce, and an employer, subject to the
provisions of a certain act of Congress of the United States of America, entitled, "An
Act concerning carriers engaged in interstate commerce and their employees,"
approved Junc 1, 1898, and said corporation was not at any [p170] time a street
railroad corporation. That before and at the time of the commission of the offense
hereinafter named, one William Adair was an agent and employee of said common
carrier and employer, and was at all said times master mechanic of said common
carrier and employer in the district aforesaid, and before and at the time hereinafter
stated, one O. B. Coppage was an employee of said common carrier and employer in
the district aforesaid, and, as such employee, was at all times hereinafter named
actually engaged in the capacity of locomotive fireman in train operation and train
service for said common carrier and employer in the transportation of passengers
and property aforesaid, and was an employee of said common carrier and employer
actually engaged in said railroad transportation and train service aforesaid, to whom
the provisions of said act applied, and, at the time of the commission of the offense
hereinafter named, said O. B. Coppage was a member of a certain labor
organization, known as the Order of Locomotive Firemen, as he the said William
Adair then and there well knew, a more particular description of said organization
and the members thereof is to the grand jurors unknown.
The specific charge in that count was that said William Adair, agent and employee of
said common carrier and employer as aforesaid, in the district aforesaid, on and
before the 15th day of October, 1906, did unlawfully and unjustly discriminate
against said O. B. Coppage, employee as aforesaid, by then and there discharging
said O. B. Coppage from such employment of said common carrier and employer,
because of his membership in said labor organization, and thereby did unjustly
discriminate against an employee of a common carrier and employer engaged in
interstate commerce because of his membership in a labor organization, contrary to
the forms of the statute in such cases made and provided, and against the peace
and dignity of the United States.
The second count repeated the general allegations of the first count as to the
character of the business of the Louisville [p171] and Nashville Railroad Company
and the relations between that corporation and Adair and Coppage. It charged
that said William Adair, in the district aforesaid and within the jurisdiction of this
court, agent and employee of said common carrier and employer aforesaid, on and
before the 15th day of October, 1906, did unlawfully threaten said O. B. Coppage,
employee as aforesaid, with loss of employment, because of his membership in said
labor organization, contrary to the forms of the statute in such cases made and
provided, and against the peace and dignity of the United States.
The accused Adair demurred to the indictment as insufficient in law, but the
demurrer was overruled. After reviewing the authorities, in an elaborate opinion, the
court held the tenth section of the act of Congress to be constitutional. 152 Fed.Rep.
737. The defendant pleaded not guilty, and, after trial, a verdict was returned of
guilty on the first count and a judgment rendered that he pay to the United States a
fine of $100. We shall, therefore, say nothing as to the second count of the
indictment.
It thus appears that the criminal offense charged in the count of the indictment upon
which the defendant was convicted was, in substance and effect, that, being an
agent of a railroad company engaged in interstate commerce and subject to the
provisions of the above act of June 1, 1898, he discharged one Coppage from its
service because of his membership in a labor organization -- no other ground for
such discharge being alleged.
May Congress make it a criminal offense against the United States -- as by the tenth
section of the act of 1898 it does -- for an agent or officer of an interstate carrier,
having full authority in the premises from the carrier, to discharge an employee from
service simply because of his membership in a labor organization?
This question is admittedly one of importance, and has been examined with care
and deliberation. And the court has reached a conclusion which, in its judgment, is
consistent [p172] with both the words and spirit of the Constitution and is sustained
as well by sound reason.
The first inquiry is whether the part of the tenth section of the act of 1898 upon
which the first count of the indictment was based is repugnant to the Fifth
Amendment of the Constitution declaring that no person shall be deprived of liberty
or property without due process of law. In our opinion, that section, in the particular
mentioned, is an invasion of the personal liberty, as well as of the right of property,
guaranteed by that Amendment. Such liberty and right embraces the right to make
contracts for the purchase of the labor of others and equally the right to make
contracts for the sale of one's own labor; each right, however; being subject to the
fundamental condition that no contract, whatever its subject matter, can be
sustained which the law, upon reasonable grounds, forbids as inconsistent with the
public interests or as hurtful to the public order or as detrimental to the common
good. This court has said that,
in every well ordered society charged with the duty of conserving the safety of its
members, the rights of the individual in respect of his liberty may, at times, under
the pressure of great dangers, be subjected to such restraint, to be enforced by
reasonable regulations, as the safety of the general public may demand.
Jacobson v. Massachusetts, 197 U.S. 11, 29, and authorities there cited. Without
stopping to consider what would have been the rights of the railroad company under
the Fifth Amendment had it been indicted under the act of Congress, it is sufficient
in this case to say that, as agent of the railroad company and as such responsible for
the conduct of the business of one of its departments, it was the defendant Adair's
right -- and that right inhered in his personal liberty, and was also a right of property
-- to serve his employer as best he could, so long as he did nothing that was
reasonably forbidden by law as injurious to the public interests. It was the right of
the defendant to prescribe the terms upon which the services of Coppage would be
accepted, and it was the right of Coppage to become or not, [p173] as he chose, an
employee of the railroad company upon the terms offered to him. Mr. Cooley, in his
treatise on Torts, p. 278, well says:
It is a part of every man's civil rights that he be left at liberty to refuse business
relations with any person whomsoever, whether the refusal rests upon reason, or is
the result of whim, caprice, prejudice or malice. With his reasons neither the public
nor third persons have any legal concern. It is also his right to have business
relations with anyone with whom he can make contracts, and if he is wrongfully
deprived of this right by others, he is entitled to redress.
In Lochner v. New York, 198 U.S. 45, 53, 56, which involved the validity of a state
enactment prescribing certain maximum hours for labor in bakeries, and which
made it a misdemeanor for an employer to require or permit an employee in such an
establishment to work in excess of a given number of hours each day, the court
said:
The general right to make a contract in relation to his business is part of the liberty
of the individual protected by the Fourteenth Amendment of the Federal
Constitution. Allgeyer v. Louisiana, 165 U.S. 578. Under that provision, no State can
deprive any person of life, liberty or property without due process of law. The right to
purchase or to sell labor is part of the liberty protected by this amendment, unless
there are circumstances which exclude the right. There are, however, certain
powers, existing in the sovereignty of each State in the Union, somewhat vaguely
termed police powers, the exact description and limitation of which have not been
attempted by the courts. Those powers, broadly stated and without, at present, any
attempt at a more specific limitation, relate to the safety, health, morals and general
welfare of the public. Both property and liberty are held on such reasonable
conditions as may be imposed by the governing power of the State in the exercise of
those powers, and with such conditions the Fourteenth Amendment was not
designed to interfere. Mugler v. Kansas, 123 U.S. 623; In re Kemmler, 136 U.S. 436;
Crowley v. Christensen, 137 U.S. 86; In re Converse, 137 U.S. 624. . . . In every case
that [p174] comes before this court, therefore, where legislation of this character is
concerned and where the protection of the Federal Constitution is sought, the
question necessarily arises: is this a fair, reasonable and appropriate exercise of the
police power of the State, or is it an unreasonable, unnecessary and arbitrary
interference with the right of the individual to his personal liberty or to enter into
those contracts in relation to labor which may seem to him appropriate or necessary
for the support of himself and his family? Of course, the liberty of contract relating
to labor includes both parties to it. The one has as much right to purchase as the
other to sell labor.
Although there was a difference of opinion in that case among the members of the
court as to certain propositions, there was no disagreement as to the general
proposition that there is a liberty of contract which cannot be unreasonably
interfered with by legislation. The minority were of opinion that the business referred
to in the New York statute was such as to require regulation, and that, as the statute
was not shown plainly and palpably to have imposed an unreasonable restraint upon
freedom of contract, it should be regarded by the courts as a valid exercise of the
State's power to care for the health and safety of its people.
While, as already suggested, the rights of liberty and property guaranteed by the
Constitution against deprivation without due process of law are subject to such
reasonable restraints as the common good or the general welfare may require, it is
not within the functions of government -- at least in the absence of contract between
the parties -- to compel any person, in the course of his business and against his
will, to accept or retain the personal services of another, or to compel any person,
against his will, to perform personal services for another. The right of a person to sell
his labor upon such terms as he deems proper is, in its essence, the same as the
right of the purchaser of labor to prescribe the conditions upon which he will accept
such labor from the person offering to sell it. So the right of the employee to quit the
service of the employer, [p175] for whatever reason, is the same as the right of the
employer, for whatever reason, to dispense with the services of such employee. It
was the legal right of the defendant Adair -- however unwise such a course might
have been -- to discharge Coppage because of his being a member of a labor
organization, as it was the legal right of Coppage, if he saw fit to do so -- however
unwise such a course on his part might have been -- to quit the service in which he
was engaged because the defendant employed some persons who were not
members of a labor organization. In all such particulars, the employer and the
employee have equality of right, and any legislation that disturbs that equality is an
arbitrary interference with the liberty of contract which no government can legally
justify in a free land. These views find support in adjudged cases, some of which are
cited in the margin. [n1] Of course, if the parties, by contract, fix the period of
service, and prescribe the conditions upon which the contract may be terminated,
such contract would control the rights of the parties as between themselves, and, for
any violation of those provisions, the party wronged would have his appropriate civil
action. And it may be -- but upon that point we express no opinion -- that, in the
case of a labor contract between an employer engaged in interstate commerce and
his employee, Congress could make it a crime for either party, without sufficient or
just excuse or notice, to disregard the terms of such contract or to refuse to perform
it. In the absence, however, of a valid contract between the parties controlling their
conduct towards each other and fixing a period of service, it cannot be, we repeat,
that an employer is under any legal obligation, against his will, to retain an
employee in his personal service any more than an employee [p176] can be
compelled, against his will, to remain in the personal service of another. So far as
this record discloses the facts the defendant, who seemed to have authority in the
premises, did not agree to keep Coppage in service for any particular time, nor did
Coppage agree to remain in such service a moment longer than he chose. The latter
was at liberty to quit the service without assigning any reason for his leaving. And
the defendant was at liberty, in his discretion, to discharge Coppage from service
without giving any reason for so doing.
As the relations and the conduct of the parties towards each other was not
controlled by any contract other than a general agreement on one side to accept the
services of the employee and a general agreement on the other side to render
services to the employer -- no term being fixed for the continuance of the
employment -- Congress could not, consistently with the Fifth Amendment, make it a
crime against the United States to discharge the employee because of his being a
member of a labor organization.
But it is suggested that the authority to make it a crime for an agent or officer of an
interstate carrier, having authority in the premises from his principal, to discharge
an employee from service to such carrier, simply because of his membership in a
labor organization, can be referred to the power of Congress to regulate interstate
commerce, without regard to any question of personal liberty or right of property
arising under the Fifth Amendment. This suggestion can have no bearing in the
present discussion unless the statute, in the particular just stated, is, within the
meaning of the Constitution, a regulation of commerce among the States. If it be
not, then clearly the Government cannot invoke the commerce clause of the
Constitution as sustaining the indictment against Adair.
Let us inquire what is commerce, the power to regulate which is given to Congress?
This question has been frequently propounded in this court, and the answer has
been -- and no more specific answer could [p177] well have been given -- that
commerce among the several States comprehends traffic, intercourse, trade,
navigation, communication, the transit of persons and the transmission of messages
by telegraph -- indeed, every species of commercial intercourse among the several
States, but not to that commerce completely internal, which is carried on between
man and man, in a State, or between different parts of the same State, and which
does not extend to or affect other States.
The power to regulate interstate commerce is the power to prescribe rules by which
such commerce must be governed. [n2] Of course, as has been often said, Congress
has a large discretion in the selection or choice of the means to be employed in the
regulation of interstate commerce, and such discretion is not to be interfered with
except where that which is done is in plain violation of the Constitution. Northern
Securities Co. v. United States, 193 U.S. 197, and authorities there cited. In this
connection, we may refer to Johnson v. Railroad, 196 U.S. 1, relied on in argument,
which case arose under the act of Congress of March 2, 1893, 27 Stat. 531, c. 196.
That act required carriers engaged in interstate commerce to equip their cars used
in such commerce with automatic couplers and continuous brakes, and their
locomotives with driving wheel brakes. But the act, upon its face, showed that its
object was to promote the safety of employees and travelers upon railroads, and this
court sustained its validity upon the ground that it manifestly had reference to
interstate commerce, and was calculated to subserve the interests of such
commerce by affording protection to employees and travelers. It was held that there
was a substantial connection between the object sought to be attained by the act
and the means provided to accomplish that object. So, in regard to Employers'
Liability [p178] Cases, 207 U.S. 63, decided at the present term. In that case, the
court sustained the authority of Congress, under its power to regulate interstate
commerce, to prescribe the rule of liability, as between interstate carriers and its
employees in such interstate commerce, in cases of personal injuries received by
employees while actually engaged in such commerce. The decision on this point was
placed on the ground that a rule of that character would have direct reference to the
conduct of interstate commerce, and would, therefore, be within the competency of
Congress to establish for commerce among the States, but not as to commerce
completely internal to a State. Manifestly, any rule prescribed for the conduct of
interstate commerce, in order to be within the competency of Congress under its
power to regulate commerce among the States, must have some real or substantial
relation to or connection with the commerce regulated. But what possible legal or
logical connection is there between an employee's membership in a labor
organization and the carrying on of interstate commerce? Such relation to a labor
organization cannot have, in itself, and in the eye of the law, any bearing upon the
commerce with which the employee is connected by his labor and services. Labor
associations, we assume, are organized for the general purpose of improving or
bettering the conditions and conserving the interests of its members as wage-
earners -- an object entirely legitimate and to be commended, rather than
condemned. But surely those associations, as labor organizations, have nothing to
do with interstate commerce as such. One who engages in the service of an
interstate carrier will, it must be assumed, faithfully perform his duty, whether he be
a member or not a member of a labor organization. His fitness for the position in
which he labors and his diligence in the discharge of his duties cannot, in law or
sound reason, depend in any degree upon his being or not being a member of a
labor organization. It cannot be assumed that his fitness is assured, or his diligence
increased, by such membership, or that he is less fit or less diligent because [p179]
of his not being a member of such an organization. It is the employee as a man, and
not as a member of a labor organization, who labors in the service of an interstate
carrier. Will it be said that the provision in question had its origin in the
apprehension, on the part of Congress, that, if it did not show more consideration for
members of labor organizations than for wage-earners who were not members of
such organizations, or if it did not insert in the statute some such provision as the
one here in question, members of labor organizations would, by illegal or violent
measures, interrupt or impair the freedom of commerce among the States? We will
not indulge in any such conjectures, nor make them, in whole or in part, the basis of
our decision. We could not do so consistently with the respect due to a coordinate
department of the Government. We could not do so without imputing to Congress
the purpose to accord to one class of wage-earners privileges withheld from another
class of wage-earners engaged, it may be, in the same kind of labor and serving the
same employer. Nor will we assume, in our consideration of this case, that members
of labor organizations will, in any considerable numbers, resort to illegal methods for
accomplishing any particular object they have in view.
Looking alone at the words of the statute for the purpose of ascertaining its scope
and effect, and of determining its validity, we hold that there is no such connection
between interstate commerce and membership in a labor organization as to
authorize Congress to make it a crime against the United States for an agent of an
interstate carrier to discharge an employee because of such membership on his
part. If such a power exists in Congress, it is difficult to perceive why it might not, by
absolute regulation, require interstate carriers, under penalties, to employ in the
conduct of its interstate business only members of labor organizations, or only those
who are not members of such organizations -- a power which could not be
recognized as existing under the Constitution of the United States. No such rule of
criminal liability as that to which [p180] we have referred can be regarded as, in any
just sense, a regulation of interstate commerce. We need scarcely repeat what this
court has more than once said, that the power to regulate interstate commerce,
great and paramount as that power is, cannot be exerted in violation of any
fundamental right secured by other provisions of the Constitution. Gibbons v. Ogden,
9 Wheat. 1, 196; Lottery Case, 188 U.S. 321, 353.
It results, on the whole case, that the provision of the statute under which the
defendant was convicted must be held to be repugnant to the Fifth Amendment, and
as not embraced by nor within the power of Congress to regulate interstate
commerce, but, under the guise of regulating interstate commerce and as applied to
this case, it arbitrarily sanctions an illegal invasion of the personal liberty as well as
the right of property of the defendant Adair.
We add that, since the part of the act of 1898 upon which the first count of the
indictment is based, and upon which alone the defendant was convicted, is
severable from its other parts, and, as what has been said is sufficient to dispose of
the present case, we are not called upon to consider other and independent
provisions of the act, such, for instance, as the provisions relating to arbitration. This
decision is therefore restricted to the question of the validity of the particular
provision in the act of Congress making it a crime against the United States for an
agent or officer of an interstate carrier to discharge an employee from its service
because of his being a member of a labor organization.
The judgment must be reversed, with directions to set aside the verdict and
judgment of conviction, sustain the demurrer to the indictment, and dismiss the
case. It is so ordered.
T. B. COPPAGE, Piff. in Err., v. STATE OF KANSAS.
236 U.S. 1 (35 S.Ct. 240, 59 L.Ed. 441)
T. B. COPPAGE, Piff. in Err., v. STATE OF KANSAS.
Messrs. R. R. Vermilion and W. F. Evans for plaintiff in error.
Mr. John S. Dawson, Attorney General of Kansas, and Mr. J. I. Sheppard for defendant
in error.
Mr. Justice Pitney delivered the opinion of the court:
In a local court in one of the counties of Kansas, plaintiff in error was found guilty
and adjudged to pay a fine, with imprisonment as the alternative, upon an
information charging him with a violation of an act of the legislature of that state,
approved March 13, 1903, being chap. 222 of the Session Laws of that year, found
also as 4674 and 4675, Gen. Stat. (Kan.) 1909. The act reads as follows:
An Act to Provide a Penalty for Coercing or Influencing or Making Demands upon or
Requirements of Employees, Servants, Laborers, and Persons Seeking Employment.
Be it enacted, etc.:
Section 1. That it shall be unlawful for any individual or member of any firm, or any
agent, officer, or employee of any company or corporation, to coerce, require,
demand, or influence any person or persons to enter into any agreement, either
written or verbal, not to join or become or remain a member of any labor
organization or association, as a condition of such person or persons securing
employment, or continuing in the employment of such individual, firm, or
corporation.
Section 2. Any individual or member of any firm, or any
Argument of Counsel from pages 4-7 intentionally omitted agent, officer, or
employee of any company or corporation violating the provisions of this act, shall be
deemed guilty of a misdemeanor, and upon conviction thereof shall be fined in a
sum not less than $50, or imprisoned in the county jail not less than thirty days.
The judgment was affirmed by the supreme court of the state, two justices
dissenting (87 Kan. 752, 125 Pac. 8), and the case is brought here upon the ground
that the statute, as construed and applied in this case, is in conflict with that
provision of the 14th Amendment of the Constitution of the United States which
declares that no state shall deprive any person of liberty or property without due
process of law.
The facts, as recited in the opinion of the supreme court, are as follows: About July 1,
1911, one Hedges was employed as a switchman by the St. Louis & San Francisco
Railway Company, and was a member of a labor organization called the Switchmen's
Union of North America. Plaintiff in error was employed by the railway company as
superintendent, and as such he requested Hedges to sign an agreement, which he
presented to him in writing, at the same time informing him that if he did not sign it
he could not remain in the employ of the company. The following is a copy of the
paper thus presented:
Fort Scott, Kansas, _____, 1911.
Mr. T. B. Coppage, Superintendent Frisco Lines, Fort Scott:
We, the undersigned, have agreed to abide by your request, that is, to withdraw
from the Switchmen's Union, while in the service of the Frisco Company.
(Signed) ________
Hedges refused to sign this, and refused to withdraw from the labor organization.
Thereupon plaintiff in error, as such superintendent, discharged him from the service
of the company.
At the outset, a few words should be said respecting the construction of the act. It
uses the term 'coerce,' and some stress is laid upon this in the opinion of the Kansas
supreme court. But, on this record, we have nothing to do with any question of
actual or implied coercion or duress, such as might overcome the will of the
employee by means unlawful without the act. In the case before us, the state court
treated the term 'coerce' as applying to the mere insistence by the employer, or its
agent, upon its right to prescribe terms upon which alone it would consent to a
continuance of the relationship of employer and employee. In this sense we must
understand the statute to have been construed by the court, for in this sense it was
enforced in the present case; there being no finding, nor any evidence to support a
finding, that plaintiff in error was guilty in any other sense. The entire evidence is
included in the bill of exceptions returned with the writ of error, and we have
examined it to the extent necessary in order to determine the Federal right that is
asserted (Southern P. Co. v. Schuyler, 227 U. S. 601, 611, 57 L. ed. 662, 669, 43
L.R.A.(N.S.) 901, 33 Sup. Ct. Rep. 277, and cases cited). There is neither finding nor
evidence that the contract of employment was other than a general or indefinite
hiring, such as is presumed to be terminable at the will of either party. The evidence
shows that it would have been to the advantage of Hedges, from a pecuniary point
of view and otherwise, to have been permitted to retain his membership in the
union, and at the same time to remain in the employ of the railway company. In
particular, it shows (although no reference is made to this in the opinion of the
court) that, as a member of the union, he was entitled to benefits in the nature of
insurance to the amount of $1,500, which he would have been obliged to forego if
he had ceased to be a member. But, aside from this matter of pecuniary interest,
there is nothing to show that Hedges was subjected to the least pressure or
influence, or that he was not a free agent, in all respects competent, and at liberty
to choose what was best from the standpoint of his own interests. Of course, if
plaintiff in error, acting as the representative of the railway company, was otherwise
within his legal rights in insisting that Hedges should elect whether to remain in the
employ of the company or to retain his membership in the union, that insistence is
not rendered unlawful by the fact that the choice involved a pecuniary sacrifice to
Hedges. Silliman v. United States, 101 U. S. 465, 470, 471, 25 L. ed. 987-989;
Hackley v. Headley, 45 Mich. 569, 576, 8 N. W. 511; Emery v. Lowell, 127 Mass. 138,
141; Custin v. Viroqua, 67 Wis. 314, 320, 30 N. W. 515. And if the right that plaintiff
in error exercised is founded upon a constitutional basis, it cannot be impaired by
merely applying to its exercise the term 'coercion.' We have to deal, therefore, with
a statute that, as construed and applied, makes it a criminal offense, punishable
with fine or imprisonment, for an employer or his agent to merely prescribe, as a
condition upon which one may secure certain employment or remain in such
employment (the employment being terminable at will), that the employee shall
enter into an agreement not to become or remain a member of any labor
organization while so employed; the employee being subject to no incapacity or
disability, but, on the contrary, free to exercise a voluntary choice.
In Adair v. United States, 208 U. S. 161, 52 L. ed. 436, 28 Sup. Ct. Rep. 277, 13 Ann.
Cas. 764, this court had to deal with a question not distinguishable in principle from
the one now presented. Congress, in 10 of an act of June 1, 1898, entitled, 'An Act
Concerning Carriers Engaged in Interstate Commerce and Their Employees' (30 Stat.
at L. 424, 428, chap. 370), had enacted 'that any employer subject to the provisions
of this act, and any officer, agent, or receiver of such employer, who shall require
any employee, or any person seeking employment, as a condition of such
employment, to enter into an agreement, either written or verbal, not to become or
remain a member of any labor corporation, association, or organization; or shall
threaten any employee with loss of employment, or shall unjustly discriminate
against any employee because of his membership in such a labor corporation,
association, or organization . . . is hereby declared to be guilty of a misdemeanor,
and, upon conviction thereof . . . shall be punished for each offense by a fine of not
less than one hundred dollars and not more than one thousand dollars.' Adair was
convicted upon an indictment charging that he, as agent of a common carrier
subject to the provisions of the act, unjustly discriminated against a certain
employee by discharging him from the employ of the carrier because of his
membership in a labor organization. The court held that portion of the act upon
which the conviction rested to be an invasion of the personal liberty as well as of the
right of property guaranteed by the 5th Amendment, which declares that no person
shall be deprived of liberty or property without due process of law. Speaking by Mr.
Justice Harlan, the court said (p. 174): 'While, as already suggested, the right of
liberty and property guaranteed by the Constitution against deprivation without due
process of law is subject to such reasonable restraints as the common good or the
general welfare may require, it is not within the functions of governmentat least,
in the absence of contract between the partiesto compel any person in the course
of his business and against his will to accept or retain the personal services of
another, or to compel any person, against his will, to perform personal services for
another. The right of a person to sell his labor upon such terms as he deems proper
is, in its essence, the same as the right of the purchaser of labor to prescribe the
conditions upon which he will accept such labor from the person offering to sell it. So
the right of the employee to quit the service of the employer, for whatever reason, is
the same as the right of the employer, for whatever reason, to dispense with the
services of such employee. It was the legal right of the defendant Adairhowever
unwise such a course might have beento discharge Coppage the employee in that
case because of his being a member of a labor organization, as it was the legal right
of Coppage, if he saw fit to do so,however unwise such a course on his part might
have been,to quit the service in which he was engaged, because the defendant
employed some persons who were not members of a labor organization. In all such
particulars the employer and the employee have equality of right, and any
legislation that disturbs that equality is an arbitrary interference with the liberty of
contract, which no government can legally justify in a free land.'
Unless it is to be overruled, this decision is controlling upon the present controversy;
for if Congress is prevented from arbitrary interference with the liberty of contract
because of the 'due process' provision of the 5th Amendment, it is too clear for
argument that the states are prevented from the like interference by virtue of the
corresponding clause of the 14th Amendment; and hence, if it be unconstitutional
for Congress to deprive an employer of liberty or property for threatening an
employee with loss of employment, or discriminating against him because of his
membership in a labor organization, it is unconstitutional for a state to similarly
punish an employer for requiring his employee, as a condition of securing or
retaining employment, to agree not to become or remain a member of such an
organization while so employed.
It is true that, while the statute that was dealt with in the Adair Case contained a
clause substantially identical with the Kansas act now under consideration,a
clause making it a misdemeanor for an employer to require an employee or
applicant for employment, as a condition of such employment, to agree not to
become or remain a member of a labor organization,the conviction was based
upon another clause, which related to discharging an employee because of his
membership in such an organization; and the decision, naturally, was confined to
the case actually presented for decision. In the present case, the Kansas supreme
court sought to distinguish the Adair decision upon this ground. The distinction, if
any there be, has not previously been recognized as substantial, so far as we have
been able to find. The opinion in the Adair Case, while carefully restricting the
decision to the precise matter involved, cited (208 U. S. on page 175), as the first in
order of a number of decisions supporting the conclusion of the court, a case (People
v. Marcus, 185 N. Y. 257, 7 L.R.A.(N.S.) 282, 113 Am. St. Rep. 902, 77 N. E. 1073, 7
Ann. Cas. 188) in which the statute denounced as unconstitutional was in substance
the counterpart of the one with which we are now dealing.
But, irrespective of whether it has received judicial recognition, is there any real
distinction? The constitutional right of the employer to discharge an employee
because of his membership in a labor union being granted, can the employer be
compelled to resort to this extreme measure? May he not offer to the employee an
option, such as was offered in the instant case, to remain in the employment if he
will retire from the union; to sever the former relationship only if he prefers the
latter? Granted the equal freedom of both parties to the contract of employment,
has not each party the right to stipulate upon what terms only he will consent to the
inception, or to the continuance, of that relationship? And may he not insist upon an
express agreement, instead of leaving the terms of the employment to be implied?
Can the legislature in effect require either party at the beginning to act covertly;
concealing essential terms of the employmentterms to which, perhaps, the other
would not willingly consentand revealing them only when it is proposed to insist
upon them as a ground for terminating the relationship? Supposing an employer is
unwilling to have in his employ one holding membership in a labor union, and has
reason to suppose that the man may prefer membership in the union to the given
employment without itwe ask, can the legislature oblige the employer in such case
to refrain from dealing frankly at the outset? And is not the employer entitled to
insist upon equal frankness in return? Approaching the matter from a somewhat
different standpoint, is the employee's right to be free to join a labor union any more
sacred, or more securely founded upon the Constitution, than his right to work for
whom he will, or to be idle if he will? And does not the ordinary contract of
employment include an insistence by the employer that the employee shall agree,
as a condition of the employment, that he will not be idle and will not work for whom
he pleases, but will serve his present employer, and him only, so long as the relation
between them shall continue? Can the right of making contracts be enjoyed at all,
except by parties coming together in an agreement that requires each party to
forego, during the time and for the purpose covered by the agreement, any
inconsistent exercise of his constitutional rights?
These queries answer themselves. The answers, as we think, lead to a single
conclusion: Under constitutional freedom of contract, whatever either party has the
right to treat as sufficient ground for terminating the employment, where there is no
stipulation on the subject, he has the right to provide against by insisting that a
stipulation respecting it shall be a sine qua non of the inception of the employment,
or of its continuance if it be terminable at will. It follows that this case cannot be
distinguished from Adair v. United States.
The decision in that case was reached as the result of elaborate argument and full
consideration. The opinion states (208 U. S. 171): 'This question is admittedly one of
importance, and has been examined with care and deliberation. And the court has
reached a conclusion which, in its judgment, is consistent with both the words and
spirit of the Constitution, and is sustained as well by sound reason.' We are now
asked, in effect, to overrule it; and in view of the importance of the issue we have
reexamined the question from the standpoint of both reason and authority. As a
result, we are constrained to reaffirm the doctrine there applied. Neither the doctrine
nor this application of it is novel; we will endeavor to restate some of the grounds
upon which it rests. The principle is fundamental and vital. Included in the right of
personal liberty and the right of private propertypartaking of the nature of each
is the right to make contracts for the acquisition of property. Chief among such
contracts is that of personal employment, by which labor and other services are
exchanged for money or other forms of property. If this right be struck down or
arbitrarily interfered with, there is a substantial impairment of liberty in the long-
established constitutional sense. The right is as essential to the laborer as to the
capitalist, to the poor as to the rich; for the vast majority of persons have no other
honest way to begin to acquire property, save by working for money.
An interference with this liberty so serious as that now under consideration, and so
disturbing of equality of right, must be deemed to be arbitrary, unless it be
supportable as a reasonable exercise of the police power of the state. But,
notwithstanding the strong general presumption in favor of the validity of state laws,
we do not think the statute in question, as construed and applied in this case, can
be sustained as a legitimate exercise of that power. To avoid possible
misunderstanding, we should here emphasize, what has been said before, that so far
as its title or enacting clause expresses a purpose to deal with coercion, compulsion,
duress, or other undue influence, we have no present concern with it, because
nothing of that sort is involved in this case. As has been many times stated, this
court deals not with moot cases or abstract questions, but with the concrete case
before it. California v. San Pablo & T. R. Co. 149 U. S. 308, 314, 37 L. ed. 747, 748, 13
Sup. Ct. Rep. 876; Richardson v. McChesney, 218 U. S. 487, 492, 54 L. ed. 1121,
1122, 31 Sup. Ct. Rep. 43; Missouri, K. & T. R. Co. v. Cade, 233 U. S. 642, 648, 58 L.
ed. 1135, 1137, 34 Sup. Ct. Rep. 678. We do not mean to say, therefore, that a state
may not properly exert its police power to prevent coercion on the part of employers
towards employees, or vice versa. But, in this case, the Kansas court of last resort
has held that Coppage, the plaintiff in error, is a criminal, punishable with fine or
imprisonment under this statute, simply and merely because, while acting as the
representative of the railroad company, and dealing with Hedges, an employee at
will and a man of full age and understanding, subject to no restraint or disability,
Coppage insisted that Hedges should freely choose whether he would leave the
employ of the company or would agree to refrain from association with the union
while so employed. This construction is, for all purposes of our jurisdiction,
conclusive evidence that the state of Kansas intends by this legislation to punish
conduct such as that of Coppage, although entirely devoid of any element of
coercion, compulsion, duress, or undue influence, just as certainly as it intends to
punish coercion and the like. But, when a party appeals to this court for the
protection of rights secured to him by the Federal Constitution, the decision is not to
depend upon the form of the state law, nor even upon its declared purpose, but
rather upon its operation and effect as applied and enforced by the state; and upon
these matters this court cannot, in the proper performance of its duty, yield its
judgment to that of the state court. St. Louis South Western R. Co. v. Arkansas, 235
U. S. 350, 362, 59 L. ed. , 35 Sup. Ct. Rep. 99, and cases cited. Now, it seems to
us clear that a statutory provision which is not a legitimate police regulation cannot
be made such by being placed in the same act with a police regulation, or by being
enacted under a title that declares a purpose which would be a proper object for the
exercise of that power. 'Its true character cannot be changed by its collocation,' as
Mr. Justice Grier said in the Passenger Cases, 7 How. 458, 12 L. ed. 775. It is equally
clear, we think, that to punish an employer or his agent for simply proposing certain
terms of employment, under circumstances devoid of coercion, duress, or undue
influence, has no reasonable relation to a declared purpose of repressing coercion,
duress, and undue influence. Nor can a state, by designating as 'coercion' conduct
which is not such in truth, render criminal any normal and essentially innocent
exercise of personal liberty or of property rights; for to permit this would deprive the
14th Amendment of its effective force in this regard. We, of course, do not intend to
attribute to the legislature or the courts of Kansas any improper purposes or any
want of candor; but only to emphasize the distinction between the form of the
statute and its effect as applied to the present case.
Laying aside, therefore, as immaterial for present purposes, so much of the statute
as indicates a purpose to repress coercive practices, what possible relation has the
residue of the act to the public health, safety, morals, or general welfare? None is
suggested, and we are unable to conceive of any. The act, as the construction given
to it by the state court shows, is intended to deprive employers of a part of their
liberty of contract, to the corresponding advantage of the employed and the
upbuilding of the labor organizations. But no attempt is made, or could reasonably
be made, to sustain the purpose to strengthen these voluntary organizations, any
more than other voluntary associations of persons, as a legitimate object for the
exercise of the police power. They are not public institutions, charged by law with
public or governmental duties, such as would render the maintenance of their
membership a matter of direct concern to the general welfare. If they were, a
different question would be presented.
As to the interest of the employed, it is said by the Kansas supreme court to be a
matter of common knowledge that 'employees, as a rule, are not financially able to
be as independent in making contracts for the sale of their labor as are employers in
making a contract of purchase thereof.' No doubt, wherever the right of private
property exists, there must and will be inequalities of fortune; and thus it naturally
happens that parties negotiating about a contract are not equally unhampered by
circumstances. This applies to all contracts, and not merely to that between
employer and employee. Indeed, a little reflection will show that wherever the right
of private property and the right of free contract coexist, each party when
contracting is inevitably more or less influenced by the question whether he has
much property, or little, or none; for the contract is made to the very end that each
may gain something that he needs or desires more urgently than that which he
proposes to give in exchange. And, since it is self-evident that, unless all things are
held in common, some persons must have more property than others, it is from the
nature of things impossible to uphold freedom of contract and the right of private
property without at the same time recognizing as legitimate those inequalities of
fortune that are the necessary result of the exercise of those rights. But the 14th
Amendment, in declaring that a state shall not 'deprive any person of life, liberty, or
property without due process of law,' gives to each of these an equal sanction; it
recognizes 'liberty' and 'property' as coexistent human rights, and debars the states
from any unwarranted interference with either.
And since a state may not strike them down directly, it is clear that it may not do so
indirectly, as by declaring in effect that the public good requires the removal of
those inequalities that are but the normal and inevitable result of their exercise, and
then invoking the police power in order to remove the inequalities, without other
object in view. The police power is broad, and not easily defined, but it cannot be
given the wide scope that is here asserted for it, without in effect nullifying the
constitutional guaranty.
We need not refer to the numerous and familiar cases in which this court has held
that the power may properly be exercised for preserving the public health, safety,
morals, or general welfare, and that such police regulations may reasonably limit the
enjoyment of personal liberty, including the right of making contracts. They are
reviewed in Holden v. Hardy, 169 U. S. 366, 391, 42 L. ed. 780, 790, 18 Sup. Ct. Rep.
383; Chicago, B. & Q. R. Co. v. McGuire, 219 U. S. 549, 566, 55 L. ed. 328, 338, 31
Sup. Ct. Rep. 259; Erie R. Co. v. Williams, 233 U. S. 685, 58 L. ed. 1155, 34 Sup. Ct.
Rep. 761; and other recent decisions. An evident and controlling distinction is this:
that in those cases it has been held permissible for the states to adopt regulations
fairly deemed necessary to secure some object directly affecting the public welfare,
even though the enjoyment of private rights of liberty and property be thereby
incidentally hampered; while in that portion of the Kansas statute which is now
under considerationthat is to say, aside from coercion, etc.there is no object or
purpose, expressed or implied, that is claimed to have reference to health, safety,
morals, or public welfare, beyond the supposed desirability of leveling inequalities of
fortune by depriving one who has property of some part of what is characterized as
his 'financial independence.' In short, an interference with the normal exercise of
personal liberty and property rights is the primary object of the statute, and not an
incident to the advancement of the general welfare. But, in our opinion, the 14th
Amendment debars the states from striking down personal liberty or property rights,
or materially restricting their normal exercise, excepting so far as may be
incidentally necessary for the accomplishment of some other and paramount object,
and one that concerns the public welfare. The mere restriction of liberty or of
property rights cannot of itself be denominated 'public welfare,' and treated as a
legitimate object of the police power; for such restriction is the very thing that is
inhibited by the Amendment.
It is said in the opinion of the state court that membership in a labor organization
does not necessarily affect a man's duty to his employer; that the employer has no
right, by virtue of the relation, 'to dominate the life nor to interfere with the liberty of
the employee in matters that do not lessen or deteriorate the service;' and that 'the
statute implies that labor unions are lawful and not inimical to the rights of
employers.' The same view is presented in the brief of counsel for the state, where it
is said that membership in a labor organization is the 'personal and private affair' of
the employee. To this line of argument it is sufficient to say that it cannot be
judicially declared that membership in such an organization has no relation to a
member's duty to his employer; and therefore, if freedom of contract is to be
preserved, the employer must be left at liberty to decido for himself whether such
membership by his employee is consistent with the satisfactory performance of the
duties of the employment.
Of course we do not intend to say, nor to intimate, anything inconsistent with the
right of individuals to join labor unions, nor do we question the legitimacy of such
organizations so long as they conform to the laws of the land as others are required
to do. Conceding the full right of the individual to join the union, he has no inherent
right to do this and still remain in the employ of one who is unwilling to employ a
union man, any more than the same individual has a right to join the union without
the consent of that organization. Can it be doubted that a labor organizationa
voluntary association of working menhas the inherent and constitutional right to
deny membership to any man who will not agree that during such membership he
will not accept or retain employment in company with nonunion men? Or that a
union man has the constitutional right to decline proffered employment unless the
employer will agree not to employ any nonunion man? (In all cases we refer, of
course, to agreements made voluntarily, and without coencion or duress as between
the parties. And we have no reference to questions of monopoly, or interference with
the rights of third parties or the general public. There involve other considerations,
respecting which we intend to intimate no opinion. See Curran v. Galen, 152 N. Y. 33,
37 L.R.A. 802, 57 Am. St. Rep. 496, 46 N. E. 297; Jacobs v. Cohen, 183 N. Y. 207, 213,
214, 2 L.R.A.(N.S.) 292, 111 Am. St. Rep. 730, 76 N. E. 5, 5 Ann. Cas. 280; Plant v.
Woods, 176 Mass. 492, 51 L.R.A. 339, 79 Am. St. Rep. 330, 57 N. E. 1011; Berry v.
Donovan, 188 Mass. 353, 5 L.R.A.(N.S.) 899, 108 Am. St. Rep. 499, 74 N. E. 603, 3
Ann. Cas. 738; Brennan v. United Hatters, 73 N. J. L. 729, 738, 9 L.R.A.(N.S.) 254,
118 Am. St. Rep. 727, 65 Atl. 165, 169, 9 Ann. Cas. 698, 702). And can there be one
rule of liberty for the labor organization and its members, and a different and more
restrictive rule for employers? We think not; and since the relation of employer and
employee is a voluntary relation, as clearly as is that between the members of a
labor organization, the employer has the same inherent right to prescribe the terms
upon which he will consent to the relationship, and to have them fairly understood
and expressed in advance.
When a man is called upon to agree not to become or remain a member of the union
while working for a particular employer, he is in effect only asked to deal openly and
frankly with his employer, so as not to retain the employment upon terms to which
the latter is not willing to agree. And the liberty of making contracts does not include
a liberty to procure employment from an unwilling employer, or without a fair
understanding. Nor may the employer be foreclosed by legislation from exercising
the same freedom of choice that is the right of the employee.
To ask a man to agree, in advance, to refrain from affiliation with the union while
retaining a certain position of employment, is not to ask him to give up any part of
his constitutional freedom. He is free to decline the employment on those terms, just
as the employer may decline to offer employment on any other; for 'it takes two to
make a bargain.' Having accepted employment on those terms, the man is still free
to join the union when the period of employment expires; or, if employed at will,
then at any time upon simply quitting the employment. And, if bound by his own
agreement to refrain from joining during a stated period of employment, he is in no
different situation from that which is necessarily incident to term contracts in
general. For constitutional freedom of contract does not mean that a party is to be
as free after making a contract as before; he is not free to break it without
accountability. Freedom of contract, from the very nature of the thing, can be
enjoyed only by being exercised; and each particular exercise of it involves making
an engagement which, if fulfilled, prevents for the time any inconsistent course of
conduct.
So much for the reason of the matter, let us turn again to the adjudicated cases.
The decision in the Adair Case is in accord with the almost unbroken current of
authorities in the state courts. In many states enactments not distinguishable in
principle from the one now in question have been passed, but, except in two
instances (one, the decision of an inferior court in Ohio, since repudiated; the other,
the decision now under review), we are unable to find that they have been judicially
enforced. It is not too much to say that such laws have by common consent been
treated as unconstitutional, for while many state courts of last resort have adjudged
them void, we have found no decision by such a court sustaining legislation of this
character, excepting that which is now under review. The single previous instance in
which any court has upheld such a statute is Davis v. State (1893) 30 Ohio L. J. 342,
11 Ohio Dec. Reprint, 894, where the court of common pleas of Hamilton county
sustained an act of April 14, 1892 (89 Ohio Laws, 269), which declared that any
person who coerced or attempted to coerce employees by discharging or
threatening to discharge them because of their connection with any lawful labor
organization should be guilty of a misdemeanor, and upon conviction fined or
imprisoned. We are unable to find that this decision was ever directly reviewed; but
in State v. Bateman (1900) 10 Ohio S. & C. P. Dec. 68, 7 Ohio N. P. 487, its authority
was repudiated upon the ground that it had been in effect overruled by subsequent
decisions of the state supreme court, and the same statute was held
unconstitutional.
The right that plaintiff in error is now seeking to maintain was held by the supreme
court of Kansas, in an earlier case, to be within the protection of the 14th
Amendment, and therefore beyond legislative interference. In Coffeyville Vitrified
Brick & Tile Co. v. Perry, 69 Kan. 297, 66 L.R.A. 185, 76 Pac. 848, 1 Ann. Cas. 936,
the court had under consideration chapter 120 of the Laws of 1897 (Gen. Stat. 1901,
2425, 2426), which declared it unlawful for any person, company, or corporation,
or agent, officer, etc., to prevent employees from joining and belonging to any labor
organization, and enacted that any such person, company, or corporation, etc., that
coerced or attempted to coerce employees by discharging or threatening to
discharge them because of their connection with such labor organization should be
deemed guilty of a misdemeanor, and upon conviction subjected to a fine, and
should also be liable to the person injured in punitive damages. It was attacked as
violative of the 14th Amendment, and also of the Bill of Rights of the state
Constitution. 1 The court held it unconstitutional, saying: 'The right to follow any
lawful vocation and to make contracts is as completely within the protection of the
Constitution as the right to hold property free from unwarranted seizure, or the
liberty to go when and where one will. One of the ways of obtaining property is by
contract. The right, therefore, to contract cannot be infringed by the legislature
without violating the letter and spirit of the Constitution. Every citizen is protected in
his right to work where and for whom he will. He may select not only his employer,
but also his associates. He is at liberty to refuse to continue to serve one who has in
his employ a person, or an association of persons, objectionable to him. In this
respect the rights of the employer and employee are equal. Any act of the
legislature that would undertake to imposs on an employer the obligation of keeping
in his service one whom, for any reason, he should not desire, would be a denial of
his constitutional right to make and terminate contracts and to acquire and hold
property. Equally so would be an act the provisions of which should be intended to
require one to remain in the service of one whom he should not desire to serve. . . .
The business conducted by the defendant was its property, and in the exercise of
this ownership it is protected by the Constitution. It could abandon or discontinue its
operation at pleasure. It had the right, beyond the possibility of legislative
interference, to make any contract with reference thereto not in violation of law. In
the operation of its property it may employ such persons as are desirable, and
discharge, without reason, those who are undesirable. It is at liberty to contract for
the services of persons in any manner that is satisfactory to both. No legislative
restrictions can be imposed upon the lawful exercise of these rights.'
In Atchison, T. & S. F. R. Co. v. Brown, 80 Kan. 312, 23 L.R.A.(N.S.) 247, 133 Am. St.
Rep. 213, 102 Pac. 459, 18 Ann. Cas. 346, the same court passed upon chapter 144
of the Laws of 1897 (Gen. Stat. 1901, 2421-2424), which required the employer,
upon the request of a discharged employee, to furnish in writing the true cause or
reason for such discharge. The railway company did not meet this requirement, its
'service letter.' as it was called, stating only that Brown was discharged 'for cause,'
which the court naturally held was not a statement of the cause. The law was held
unconstitutional, upon the ground (80 Kan. 315) that an employer may discharge his
employee for any reason, or for no reason, just as an employee may quit the
employment for any reason, or for no reason; that such action on the part of
employer or employee, where no obligation is violated, is an essential element of
liberty in action; and that one cannot be compelled to give a reason or cause for an
action for which he may have no specific reason or cause, except, perhaps, a mere
whim or prejudice.
In the present case the court did not repudiate or overrule these previous decisions,
but, on the contrary, cited them as establishing the right of the employer to
discharge his employee at any time, for any reason, or for no reason, being
responsible in damages for violating a contract as to the time of employment, and
as establishing, conversely, the right of the employee to quit the employment at any
time, for any reason, or without any reason, being likewise responsible in damages
for a violation of his contract with the employer. The court held the act of 1903 that
is now in question to be distinguishable from the act of 1897, upon grounds
sufficiently indicated and answered by what we have already said.
In five other states the courts of last resort have had similar acts under
consideration, and in each instance have held them unconstitutional. In State v.
Julow (1895) 129 Mo. 163, 29 L.R.A. 257, 50 Am. St. Rep. 443, 31 S. W. 781, the
supreme court of Missouri dealt with an act (Missouri Laws 1893, p. 187) that
forbade employers, on pain of fine or imprisonment, to enter into any agreement
with an employee requiring him to withdraw from a labor union or other lawful
organization, or to refrain from joining such an organization, or to 'by any means
attempt to compel or coerce any employee into withdrawal from any lawful
organization or society.' In Gillespie v. People (1900) 188 Ill. 176, 52 L.R.A. 283, 80
Am. St. Rep. 176, 58 N. E. 1007, the supreme court of Illinois held unconstitutional
an act (Hurd's Stat. 1899, p. 844) declaring it criminal for any individual or member
of any firm, etc., to prevent or attempt to prevent employees from forming, joining,
and belonging to any lawful labor organization, and that any such person 'that
coerces or attempts to coerce employees by discharging or threatening to discharge
them because of their connection with such lawful labor organization' should be
guilty of a misdemeanor. In State ex rel. Zillmer v. Kreutzberg (1902) 114 Wis. 530,
58 L.R.A. 748, 91 Am. St. Rep. 934, 90 N. W. 1098, the court had under consideration
a statute (Wisconsin Laws 1899, chap. 332) which, like the Kansas act now in
question, prohibited the employer or his agent from coercing the employee to enter
into an agreement not to become a member of a labor organization, as a condition
of securing employment or continuing in the employment, and also rendered it
unlawful to discharge an employee because of his being a member of any labor
organization. The decision related to the latter prohibition, but this was denounced
upon able and learned reasoning that has a much wider reach. In People v. Marcus
(1906) 185 N. Y. 257, 7 L.R.A.(N.S.) 282, 113 Am. St. Rep. 902, 77 N. E. 1073, 7 Ann.
Cas. 118, the statute dealt with (N. Y. Laws 1887, chap. 688), as we have already
said, was in substance identical with the Kansas act. These decisions antedated
Adair v. United States. They proceed upon broad and fundamental reasoning, the
same in substance that was adopted by this court in the Adair Case, and they are
cited with approval in the opinion (208 U. S. 175). A like result was reached in State
ex rel. Smith v. Daniels (1912) 118 Minn. 155, 136 N. W. 584, with respect to an act
that, like the Kansas statute, forbade an employer to require an employee or person
seeking employment, as a condition of such employment, to make an agreement
that the employee would not become or remain a member or a labor organization.
This was held invalid upon the authority of the Adair Case. And see Goldfield Consol.
Mines Co. v. Goldfield Miners' Union, 159 Fed. 500, 513.
Upon both principle and authority, therefore, we are constrained to hold that the
Kansas act of March 13, 1903, as construed and applied so as to punish with fine or
imprisonment an employer or his agent for merely prescribing, as a condition upon
which one may secure employment under or remain in the service of such employer,
that the employee shall enter into an agreement not to become or remain a member
of any labor organization while so employed, is repugnant to the 'due process'
clause of the 14th Amendment, and therefore void.
Judgment reversed, and the cause remanded for further proceedings not
inconsistent with this opinion.
Adkins v. Children's Hospital ()
1. The Court of Appeals of the District of Columbia, while constituted of two of the
three Justices of that court and one Justice of the Supreme Court of the District,
affirmed decrees of the latter court dismissing bills; thereafter, at the same term,
(the Supreme Court Justice having been replaced by the third Justice of the Court of
Appeals) it granted rehearings and reversed the decrees, and, thereafter, on second
appeals, it affirmed decrees entered pursuant to the reversals. Held that objections
to the jurisdiction to grant the rehearings did not go to the jurisdiction over the
second appeals, and need not be decided here upon review of the decrees of
affirmance. P. 543.
2. Every possible presumption stands in favor of an act of Congress until overcome
beyond rational doubt. P. 544.
3. But when, in the exercise of the judicial authority to ascertain and declare the law
in a given case, it is clear and indubitable that an act of Congress conflicts with the
Constitution, it is the duty of the Court so to declare, and to enforce the Constitution.
Id.
4. This is not to exercise a power to review and nullify an act of Congress, for no
such power exists; it is simply a necessary concomitant of the power to hear and
dispose of a case or controversy properly before the court, to the determination of
which must be brought the test and measure of the law. Id.
5. That the right to contract about one's affairs is part of the liberty of the individual
protected by the Fifth Amendment, is settled by repeated decisions of this Court. P.
545.
6. Within this liberty are contracts of employment of labor. In making these,
generally speaking, the parties have equal right to obtain from each other the best
terms they can by private bargaining. Id. [p526]
7. Legislative abridgment of this freedom can only be justified by the existence of
exceptional circumstances. P. 546.
8. Review of former decisions concerning interferences with liberty of contract, by
(a) Statutes fixing the rates and charges of businesses affected by a public interest.
P. 546.
(b) Statutes relating to the performance of contracts for public work. P. 547.
(c) Statutes prescribing the character, methods and time for payment of wages. Id.
(d) Statutes fixing hours of labor. Id.
9. Legislation fixing hours or conditions of work may properly take into account the
physical differences between men and women; but, in view of the equality of legal
status, now established in this country, the doctrine that women of mature age
require, or may be subjected to, restrictions upon their liberty of contract which
could not lawfully be imposed on men in similar circumstances, must be rejected. P.
552.
10. The limited legislative authority to regulate hours of labor in special occupations,
on the ground of health, affords no support to a wage-fixing law -- the two subjects
are essentially different. P. 553.
11. The Minimum Wage Act of Sept.19, 1918, c. 174, 40 Stat. 960, in assuming to
authorize the fixing of minimum wage standards for adult women, in any occupation
in the District of Columbia, such standards to be based wholly upon what a board
and its advisers may find to be an adequate wage to meet the necessary cost of
living for women workers in each particular calling and to maintain them in good
health and protect their morals, is an unconstitutional interference with the liberty of
contract. P. 554.
APPEALS from decrees of the Court of Appeals of the District of Columbia, affirming
two decrees, entered, on mandate from that court, by the Supreme Court of the
District, permanently enjoining the appellants from enforcing orders fixing minimum
wages under the District of Columbia Minimum Wage
SUTHERLAND, J., Opinion of the Court
MR. JUSTICE SUTHERLAND delivered the opinion of the Court.
The question presented for determination by these appeals is the constitutionality of
the Act of September 19, 1918, providing for the fixing of minimum wages for
women and children in the District of Columbia. 40 Stat. 960, c. 174.
The act provides for a board of three members, to be constituted, as far as
practicable, so as to be equally representative [p540] of employers, employees and
the public. The board is authorized to have public hearings, at which persons
interested in the matter being investigated may appear and testify, to administer
oaths, issue subpoenas requiring the attendance of witnesses and production of
books, etc., and to make rules and regulations for carrying the act into effect.
By 8, the board is authorized --
(1) To investigate and ascertain the wages of women and minors in the different
occupations in which they are employed in the District of Columbia; (2) to examine,
through any member or authorized representative, any book, payroll or other record
of any employer of women or minors that, in any way appertains to or has a bearing
upon the question of wages of any such women or minors, and (3) to require from
such employer full and true statements of the wages paid to all women and minors
in his employment.
And by 9, to ascertain and declare, in the manner hereinafter provided, the
following things: (a), Standards of minimum wages for women in any occupation
within the District of Columbia, and what wages are inadequate to supply the
necessary cost of living to any such women workers to maintain them in good health
and to protect their morals, and (b), standards of minimum wages for minors in any
occupation within the District of Columbia, and what wages are unreasonably low for
any such minor workers.
The act then provides ( 10) that, if the board, after investigation, is of opinion that
any substantial number of women workers in any occupation are receiving wages
inadequate to supply them with the necessary cost of living, maintain them in health
and protect their morals, a conference may be called to consider and inquire into
and report on the subject investigated, the conference to be equally representative
of employers and employees in [p541] such occupation and of the public, and to
include one or more members of the board.
The conference is required to make and transmit to the board a report including,
among other things, recommendations as to standards of minimum wages for
women workers in the occupation under inquiry and as to what wages are
inadequate to supply the necessary cost of living to women workers in such
occupation and to maintain them in health and to protect their morals.
11.
The board is authorized ( 12) to consider and review these recommendations and to
approve or disapprove any or all of them. If it approve any recommendations, it
must give public notice of its intention and hold a public hearing at which the
persons interested will be heard. After such hearing, the board is authorized to make
such order as to it may appear necessary to carry into effect the recommendations,
and to require all employers in the occupation affected to comply therewith. It is
made unlawful for any such employer to violate in this regard any provision of the
order or to employ any woman worker at lower wages than are thereby permitted.
There is a provision ( 13) under which the board may issue a special license to a
woman whose earning capacity "has been impaired by age or otherwise,"
authorizing her employment at less than the minimum wages fixed under the act.
All questions of fact ( 17) are to be determined by the board, from whose decision
there is no appeal; but an appeal is allowed on questions of law.
Any violation of the act ( 18) by an employer or his agent or by corporate agents is
declared to be a misdemeanor, punishable by fine and imprisonment.
Finally, after some further provisions not necessary to be stated, it is declared ( 23)
that the purposes of the act are to protect the women and minors of the District
[p542] from conditions detrimental to their health and morals, resulting from wages
which are inadequate to maintain decent standards of living, and the Act in each of
its provisions and in its entirety shall be interpreted to effectuate these purposes.
The appellee in the first case is a corporation maintaining a hospital for children in
the District. It employs a large number of women in various capacities, with whom it
had agreed upon rates of wages and compensation satisfactory to such employees,
but which in some instances were less than the minimum wage fixed by an order of
the board made in pursuance of the act. The women with whom appellee had so
contracted were all of full age and under no legal disability. The instant suit was
brought by the appellee in the Supreme Court of the District to restrain the board
from enforcing or attempting to enforce its order on the ground that the same was in
contravention of the Constitution, and particularly the due process clause of the Fifth
Amendment.
In the second case, the appellee, a woman twenty-one years of age, was employed
by the Congress Hall Hotel Company as an elevator operator, at a salary of $35 per
month and two meals a day. She alleges that the work was light and healthful, the
hours short, with surroundings clean and moral, and that she was anxious to
continue it for the compensation she was receiving, and that she did not earn more.
Her services were satisfactory to the Hotel Company, and it would have been glad to
retain her but was obliged to dispense with her services by reason of the order of
the board and on account of the penalties prescribed by the act. The wages received
by this appellee were the best she was able to obtain for any work she was capable
of performing, and the enforcement of the order, she alleges, deprived her of such
employment and wages. She further averred that she could not secure any other
position at which she could make a living, with [p543] as good physical and moral
surroundings, and earn as good wages, and that she was desirous of continuing and
would continue the employment but for the order of the board. An injunction was
prayed as in the other case.
The Supreme Court of the District denied the injunction and dismissed the bill in
each case. Upon appeal, the Court of Appeals, by a majority, first affirmed and
subsequently, on a rehearing, reversed the trial court. Upon the first argument, a
justice of the District Supreme Court was called in to take the place of one of the
Appellate Court justices, who was ill. Application for rehearing was made and, by the
court as thus constituted, was denied. Subsequently, and during the term, a
rehearing was granted by an order concurred in by two of the Appellate Court
justices, one being the justice whose place on the prior occasion had been filled by
the Supreme Court member. Upon the rehearing thus granted, the Court of Appeals,
rejecting the first opinion, held the act in question to be unconstitutional and
reversed the decrees of the trial court. Thereupon the cases were remanded, and
the trial court entered decrees in pursuance of the mandate, declaring the act in
question to be unconstitutional and granting permanent injunctions. Appeals to the
Court of Appeals followed, and the decrees of the trial court were affirmed. It is from
these final decrees that the cases come here.
Upon this state of facts the jurisdiction of the lower court to grant a rehearing, after
first denying it, is challenged. We do not deem it necessary to consider the matter
farther than to say that we are here dealing with the second appeals, while the
proceedings complained of occurred upon the first appeals. That the lower court
could properly entertain the second appeals and decide the cases does not admit of
doubt, and this the appellants virtually conceded by having themselves invoked the
jurisdiction. See Rooker v. Fidelity Trust Co., ante, 114. [p544]
We come then, at once, to the substantive question involved.
The judicial duty of passing upon the constitutionality of an act of Congress is one of
great gravity and delicacy. The statute here in question has successfully borne the
scrutiny of the legislative branch of the government, which, by enacting it, has
affirmed its validity, and that determination must be given great weight. This Court,
by an unbroken line of decisions from Chief Justice Marshall to the present day, has
steadily adhered to the rule that every possible presumption is in favor of the
validity of an act of Congress until overcome beyond rational doubt. But if, by clear
and indubitable demonstration, a statute be opposed to the Constitution, we have
no choice but to say so. The Constitution, by its own terms, is the supreme law of
the land, emanating from the people, the repository of ultimate sovereignty under
our form of government. A congressional statute, on the other hand, is the act of an
agency of this sovereign authority, and, if it conflict with the Constitution, must fall;
for that which is not supreme must yield to that which is. To hold it invalid (if it be
invalid) is a plain exercise of the judicial power -- that power vested in courts to
enable them to administer justice according to law. From the authority to ascertain
and determine the law in a given case, there necessarily results, in case of conflict,
the duty to declare and enforce the rule of the supreme law and reject that of an
inferior act of legislation which, transcending the Constitution, is of no effect and
binding on no one. This is not the exercise of a substantive power to review and
nullify acts of Congress, for no such substantive power exists. It is simply a
necessary concomitant of the power to hear and dispose of a case or controversy
properly before the court, to the determination of which must be brought the test
and measure of the law. [p545]
The statute now under consideration is attacked upon the ground that it authorizes
an unconstitutional interference with the freedom of contract included within the
guaranties of the due process clause of the Fifth Amendment. That the right to
contract about one's affairs is a part of the liberty of the individual protected by this
clause, is settled by the decisions of this Court and is no longer open to question.
Allgeyer v. Louisiana, 165 U.S. 578, 591; New York Life Insurance Co. v. Dodge, 246
U.S. 357, 373-374; Coppage v. Kansas, 236 U.S. 1, 10, 14; Adair v. United States,
208 U.S. 161; Lochner v. New York, 198 U.S. 45; Butchers' Union Co. v. Crescent City
Co., 111 U.S. 746; Muller v. Oregon, 208 U.S. 412, 421. Within this liberty are
contracts of employment of labor. In making such contracts, generally speaking, the
parties have an equal right to obtain from each other the best terms they can as the
result of private bargaining.
In Adair v. United States, supra, Mr. Justice Harlan (pp. 174, 175), speaking for the
Court, said:
The right of a person to sell his labor upon such terms as he deems proper is, in its
essence, the same as the right of the purchaser of labor to prescribe the conditions
upon which he will accept such labor from the person offering to sell. . . . In all such
particulars, the employer and employee have equality of right, and any legislation
that disturbs that equality is an arbitrary interference with the liberty of contract
which no government can legally justify in a free land.
In Coppage v. Kansas, supra, (p. 14), this Court, speaking through Mr. Justice Pitney,
said:
Included in the right of personal liberty and the right of private property -- partaking
of the nature of each -- is the right to make contracts for the acquisition of property.
Chief among such contracts is that of personal employment, by which labor and
other services are exchanged for money or other forms of property. If this [p546]
right be struck down or arbitrarily interfered with, there is a substantial impairment
of liberty in the long-established constitutional sense. The right is as essential to the
laborer as to the capitalist, to the poor as to the rich; for the vast majority of persons
have no other honest way to begin to acquire property, save by working for money.
An interference with this liberty so serious as that now under consideration, and so
disturbing of equality of right, must be deemed to be arbitrary unless it be
supportable as a reasonable exercise of the police power of the State.
There is, of course, no such thing as absolute freedom of contract. It is subject to a
great variety of restraints. But freedom of contract is, nevertheless, the general rule,
and restraint the exception, and the exercise of legislative authority to abridge it can
be justified only by the existence of exceptional circumstances. Whether these
circumstances exist in the present case constitutes the question to be answered. It
will be helpful to this end to review some of the decisions where the interference has
been upheld and consider the grounds upon which they rest.
(1) Those dealing with statutes fixing rates and charges to be exacted by businesses
impressed with a public interest. There are many cases, but it is sufficient to cite
Munn v. Illinois, 94 U.S. 113. The power here rests upon the ground that, where
property is devoted to a public use, the owner thereby, in effect, grants to the public
an interest in the use which may be controlled by the public for the common good to
the extent of the interest thus created. It is upon this theory that these statutes
have been upheld and, it may be noted in passing, so upheld even in respect of their
incidental and injurious or destructive effect upon preexisting contracts. See
Louisville & Nashville R.R. Co. v. Mottley, 219 U.S. 467. In the case at bar, the statute
does not depend upon [p547] the existence of a public interest in any business to be
affected, and this class of cases may be laid aside as inapplicable.
(2) Statutes relating to contracts for the performance of public work. Atkin v. Kansas,
191 U.S. 207; Heim v. McCall, 239 U.S. 175; Ellis v. United States, 206 U.S. 246.
These cases sustain such statutes as depending not upon the right to condition
private contracts, but upon the right of the government to prescribe the conditions
upon which it will permit work of a public character to be done for it, or, in the case
of a State, for its municipalities. We may, therefore, in like manner, dismiss these
decisions from consideration as inapplicable.
(3) Statutes prescribing the character, methods and time for payment of wages.
Under this head may be included McLean v. Arkansas, 211 U.S. 539, sustaining a
state statute requiring coal to be measured for payment of miners' wages before
screening; Knoxville Iron Co. v. Harbison, 183 U.S. 13, sustaining a Tennessee statute
requiring the redemption in cash of store orders issued in payment of wages; Erie
R.R. Co. v. Williams, 233 U.S. 685, upholding a statute regulating the time within
which wages shall be paid to employees in certain specified industries, and other
cases sustaining statutes of like import and effect. In none of the statutes thus
sustained was the liberty of employer or employee to fix the amount of wages the
one was willing to pay and the other willing to receive interfered with. Their
tendency and purpose was to prevent unfair and perhaps fraudulent methods in the
payment of wages, and in no sense can they be said to be, or to furnish a precedent
for, wage-fixing statutes.
(4) Statutes fixing hours of labor. It is upon this class that the greatest emphasis is
laid in argument, and therefore, and because such cases approach most nearly the
line of principle applicable to the statute here involved, we shall consider them more
at length. In some instances, [p548] the statute limited the hours of labor for men in
certain occupations, and in others it was confined in its application to women. No
statute has thus far been brought to the attention of this Court which by its terms,
applied to all occupations. In Holden v. Hardy, 169 U.S. 366, the Court considered an
act of the Utah legislature, restricting the hours of labor in mines and smelters. This
statute was sustained as a legitimate exercise of the police power on the ground
that the legislature had determined that these particular employments, when too
long pursued, were injurious to the health of the employees, and that, as there were
reasonable grounds for supporting this determination on the part of the legislature,
its decision in that respect was beyond the reviewing power of the federal courts.
That this constituted the basis of the decision is emphasized by the subsequent
decision in Lochner v. New York, 198 U.S. 45, reviewing a state statute which
restricted the employment of all persons in bakeries to ten hours in anyone day. The
Court referred to Holden v. Hardy, supra, and, declaring it to be inapplicable, held
the statute unconstitutional as an unreasonable, unnecessary and arbitrary
interference with the liberty of contract, and therefore void under the Constitution.
Mr. Justice Peckham, speaking for the Court (p. 56), said:
It must, of course, be conceded that there is a limit to the valid exercise of the police
power by the State. There is no dispute concerning this general proposition.
Otherwise, the Fourteenth Amendment would have no efficacy, and the legislatures
of the States would have unbounded power, and it would be enough to say that any
piece of legislation was enacted to conserve the morals, the health or the safety of
the people; such legislation would be valid, no matter how absolutely without
foundation the claim might be. The claim of the police power [p549] would be a
mere pretext -- become another and delusive name for the supreme sovereignty of
the State to be exercised free from constitutional restraint.
And again (pp. 57-58):
It is a question of which of two powers or rights shall prevail -- the power of the State
to legislate or the right of the individual to liberty of person and freedom of contract.
The mere assertion that the subject relates though but in a remote degree to the
public health does not necessarily render the enactment valid. The act must have a
more direct relation, as a means to an end, and the end itself must be appropriate
and legitimate, before an act can be held to be valid which interferes with the
general right of an individual to be free in his person and in his power to contract in
relation to his own labor.
Coming then directly to the statute (p. 58), the Court said:
We think the limit of the police power has been reached and passed in this case.
There is, in our judgment, no reasonable foundation for holding this to be necessary
or appropriate as a health law to safeguard the public health or the health of the
individuals who are following the trade of a baker. If this statute be valid, and if,
therefore, a proper case is made out in which to deny the right of an individual, sui
juris, as employer or employee, to make contracts for the labor of the latter under
the protection of the provisions of the Federal Constitution, there would seem to be
no length to which legislation of this nature might not go.
And, after pointing out the unreasonable range to which the principle of the statute
might be extended, the Court said (p. 60):
It is also urged, pursuing the same line of argument, that it is to the interest of the
State that its population should be strong and robust, and therefore any legislation
which may be said to tend to make people healthy must [p550] be valid as health
laws, enacted under the police power. If this be a valid argument and a justification
for this kind of legislation, it follows that the protection of the Federal Constitution
from undue interference with liberty of person and freedom of contract is visionary,
wherever the law is sought to be justified as a valid exercise of the police power.
Scarcely any law but might find shelter under such assumptions, and conduct,
properly so called, as well as contract, would come under the restrictive sway of the
legislature.
And further (p. 61):
Statutes of the nature of that under review, limiting the hours in which grown and
intelligent men may labor to earn their living, are mere meddlesome interferences
with the rights of the individual, and they are not saved from condemnation by the
claim that they are passed in the exercise of the police power and upon the subject
of the health of the individual whose rights are interfered with, unless there be some
fair ground, reasonable in and of itself, to say that there is material danger to the
public health or to the health of the employes, if the hours of labor are not curtailed.
Subsequent cases in this Court have been distinguished from that decision, but the
principles therein stated have never been disapproved.
In Bunting v. Oregon, 243 U.S. 426, a state statute forbidding the employment of
any person in any mill, factory or manufacturing establishment more than ten hours
in any one day, and providing payment for overtime not exceeding three hours in
any one day at the rate of time and a half of the regular wage, was sustained on the
ground that, since the state legislature and State Supreme Court had found such a
law necessary for the preservation of the health of employees in these industries,
this Court would accept their judgment, in the absence of facts to support the
contrary conclusion. The law was attacked [p551] on the ground that it constituted
an attempt to fix wages, but that contention was rejected and the law sustained as a
reasonable regulation of hours of service.
Wilson v. New, 243 U.S. 332, involved the validity of the so-called Adamson Law,
which established an eight-hour day for employees of interstate carriers for which it
fixed a scale of minimum wages with proportionate increases for overtime, to be
enforced, however, only for a limited period. The act was sustained primarily upon
the ground that it was a regulation of a business charged with a public interest. The
Court, speaking through the Chief Justice, pointed out that regarding
the private right and private interest, as contradistinguished from the public interest,
the power exists between the parties, the employers and employees to agree as to a
standard of wages free from legislative interference, but that this did not affect the
power to deal with the matter with a view to protect the public right, and then said
(p. 353):
And this emphasizes that there is no question here of purely private right since the
law is concerned only with those who are engaged in a business charged with a
public interest where the subject dealt with as to all the parties is one involved in
that business and which we have seen comes under the control of the right to
regulate to the extent that the power to do so is appropriate or relevant to the
business regulated.
Moreover, in sustaining the wage feature of the law, emphasis was put upon the fact
(p. 345) that it was in this respect temporary, "leaving the employers and
employees free as to the subject of wages to govern their relations by their own
agreements after the specified time." The act was not only temporary in this
respect, but it was passed to meet a sudden and great emergency. This feature of
the law was sustained principally because the parties, for the time being, could not
or would not agree. Here, they are forbidden to agree. [p552]
The same principle was applied in the Rent Cases (Block v. Hirsh, 256 U.S. 135, and
Marcus Brown Holding Co. v. Feldman, 256 U.S. 170), where this Court sustained the
legislative power to fix rents as between landlord and tenant upon the ground that
the operation of the statutes was temporary to tide over an emergency, and that the
circumstances were such as to clothe "the letting of buildings . . . with a public
interest so great as to justify regulation by law." The Court said (p. 157):
The regulation is put and justified only as a temporary measure [citing Wilson v.
New, supra]. A limit in time, to tide over a passing trouble, well may justify a law
that could not be upheld as a permanent change.
In a subsequent case, Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 416, this Court,
after saying
We are in danger of forgetting that a strong public desire to improve the public
condition is not enough to warrant achieving the desire by a shorter cut than the
constitutional way of paying for the change, pointed out that the Rent Cases dealt
with laws intended to meet a temporary emergency and "went to the verge of the
law."
In addition to the cases cited above, there are the decisions of this Court dealing
with laws especially relating to hours of labor for women: Muller v. Oregon, 208 U.S.
412; Riley v. Massachusetts, 232 U.S. 671; Miller v. Wilson, 236 U.S. 373; Bosley v.
McLaughlin, 236 U.S. 385.
In the Muller case, the validity of an Oregon statute, forbidding the employment of
any female in certain industries more than ten hours during anyone day was upheld.
The decision proceeded upon the theory that the difference between the sexes may
justify a different rule respecting hours of labor in the case of women than in the
case of men. It is pointed out that these consist in differences of physical structure,
especially in respect [p553] of the maternal functions, and also in the fact that,
historically, woman has always been dependent upon man, who has established his
control by superior physical strength. The cases of Riley, Miller, and Bosley follow in
this respect the Muller case. But the ancient inequality of the sexes, otherwise than
physical, as suggested in the Muller case (p. 421) has continued "with diminishing
intensity." In view of the great -- not to say revolutionary -- changes which have
taken place since that utterance, in the contractual, political and civil status of
women, culminating in the Nineteenth Amendment, it is not unreasonable to say
that these differences have now come almost, if not quite, to the vanishing point. In
this aspect of the matter, while the physical differences must be recognized in
appropriate cases, and legislation fixing hours or conditions of work may properly
take them into account, we cannot accept the doctrine that women of mature age,
sui juris, require or may be subjected to restrictions upon their liberty of contract
which could not lawfully be imposed in the case of men under similar circumstances.
To do so would be to ignore all the implications to be drawn from the present day
trend of legislation, as well as that of common thought and usage, by which woman
is accorded emancipation from the old doctrine that she must be given special
protection or be subjected to special restraint in her contractual and civil
relationships. In passing, it may be noted that the instant statute applies in the case
of a woman employer contracting with a woman employee as it does when the
former is a man.
The essential characteristics of the statute now under consideration, which
differentiate it from the laws fixing hours of labor, will be made to appear as we
proceed. It is sufficient now to point out that the latter, as well as the statutes
mentioned under paragraph (3), deal with incidents of the employment having no
necessary effect upon [p554] the heart of the contract, that is, the amount of wages
to be paid and received. A law forbidding work to continue beyond a given number
of hours leaves the parties free to contract about wages, and thereby equalize
whatever additional burdens may be imposed upon the employer as a result of the
restrictions as to hours, by an adjustment in respect of the amount of wages.
Enough has been said to show that the authority to fix hours of labor cannot be
exercised except in respect of those occupations where work of long continued
duration is detrimental to health. This Court has been careful, in every case where
the question has been raised, to place its decision upon this limited authority of the
legislature to regulate hours of labor and to disclaim any purpose to uphold the
legislation as fixing wages, thus recognizing an essential difference between the
two. It seems plain that these decisions afford no real support for any form of law
establishing minimum wages.
If now, in the light furnished by the foregoing exceptions to the general rule
forbidding legislative interference with freedom of contract, we examine and analyze
the statute in question, we shall see that it differs from them in every material
respect. It is not a law dealing with any business charged with a public interest or
with public work, or to meet and tide over a temporary emergency. It has nothing to
do with the character, methods or periods of wage payments. It does not prescribe
hours of labor or conditions under which labor is to be done. It is not for the
protection of persons under legal disability or for the prevention of fraud. It is simply
and exclusively a price-fixing law, confined to adult women (for we are not now
considering the provisions relating to minors), who are legally as capable of
contracting for themselves as men. It forbids two parties having lawful capacity --
under penalties as to the employer -- to freely contract with one another in respect
of the price for [p555] which one shall render service to the other in a purely private
employment where both are willing, perhaps anxious, to agree, even though the
consequence may be to oblige one to surrender a desirable engagement and the
other to dispense with the services of a desirable employee. [*] The price fixed by
the board need have no relation to the capacity or earning power of the employee,
the number of hours which may happen to constitute the day's work, the character
of the place where the work is to be done, or the circumstances or surroundings of
the employment; and, while it has no other basis to support its validity than the
assumed necessities of the employee, it takes no account of any independent
resources she may have. It is based wholly on the opinions of the members of the
board and their advisers -- perhaps an average of their opinions, if they do not
precisely agree -- as to what will be necessary to provide a living for a woman, keep
her in health and preserve her morals. It applies to any and every occupation in the
District, without regard to its nature or the character of the work.
The standard furnished by the statute for the guidance of the board is so vague as to
be impossible of practical application with any reasonable degree of accuracy. What
is sufficient to supply the necessary cost of living for a woman worker and maintain
her in good health and protect her morals is obviously not a precise or unvarying
sum -- not even approximately so. The amount will depend upon a variety of
circumstances: the individual temperament, habits of thrift, care, ability to buy
necessaries intelligently, and whether the woman live alone or with her family. To
those who practice economy, a given sum will afford comfort, while to those of
contrary habit the same sum will be wholly inadequate. The cooperative economics
of the family group are not taken into account [p556] though they constitute an
important consideration in estimating the cost of living, for it is obvious that the
individual expense will be less in the case of a member of a family than in the case
of one living alone. The relation between earnings and morals is not capable of
standardization. It cannot be shown that well paid women safeguard their morals
more carefully than those who are poorly paid. Morality rests upon other
considerations than wages, and there is, certainly, no such prevalent connection
between the two as to justify a broad attempt to adjust the latter with reference to
the former. As a means of safeguarding morals the attempted classification in our
opinion, is without reasonable basis. No distinction can be made between women
who work for others and those who do not; nor is there ground for distinction
between women and men, for, certainly, if women require a minimum wage to
preserve their morals men require it to preserve their honesty. For these reasons,
and others which might be stated, the inquiry in respect of the necessary cost of
living and of the income necessary to preserve health and morals, presents an
individual, and not a composite, question, and must be answered for each individual
considered by herself, and not by a general formula prescribed by a statutory
bureau.
This uncertainty of the statutory standard is demonstrated by a consideration of
certain orders of the board already made. These orders fix the sum to be paid to a
woman employed in a place where food is served or in a mercantile establishment,
at $16.50 per week; in a printing establishment, at $15.50 per week, and in a
laundry, at $15 per week, with a provision reducing this to $9 in the case of a
beginner. If a woman employed to serve food requires a minimum of $16.50 per
week, it is hard to understand how the same woman working in a printing
establishment or in a laundry is to get on with an income lessened by from $1 to
$7.50 per week. The board probably [p557] found it impossible to follow the
indefinite standard of the statute, and brought other and different factors into the
problem, and this goes far in the direction of demonstrating the fatal uncertainty of
the act, an infirmity which, in our opinion, plainly exists.
The law takes account of the necessities of only one party to the contract. It ignores
the necessities of the employer by compelling him to pay not less than a certain
sum not only whether the employee is capable of earning it, but irrespective of the
ability of his business to sustain the burden, generously leaving him, of course, the
privilege of abandoning his business as an alternative for going on at a loss. Within
the limits of the minimum sum, he is precluded, under penalty of fine and
imprisonment, from adjusting compensation to the differing merits of his employees.
It compels him to pay at least the sum fixed in any event, because the employee
needs it, but requires no service of equivalent value from the employee. It therefore
undertakes to solve but one-half of the problem. The other half is the establishment
of a corresponding standard of efficiency, and this forms no part of the policy of the
legislation, although in practice the former half without the latter must lead to
ultimate failure, in accordance with the inexorable law that no one can continue
indefinitely to take out more than he puts in without ultimately exhausting the
supply. The law is not confined to the great and powerful employers, but embraces
those whose bargaining power may be as weak as that of the employee. It takes no
account of periods of stress and business depression, of crippling losses, which may
leave the employer himself without adequate means of livelihood. To the extent that
the sum fixed exceeds the fair value of the services rendered, it amounts to a
compulsory exaction from the employer for the support of a partially indigent
person, for whose condition there [p558] rests upon him no peculiar responsibility,
and therefore, in effect, arbitrarily shifts to his shoulders a burden which, if it
belongs to anybody, belongs to society as a whole.
The feature of this statute which, perhaps more than any other, puts upon it the
stamp of invalidity is that it exacts from the employer an arbitrary payment for a
purpose and upon a basis having no causal connection with his business, or the
contract or the work the employee engages to do. The declared basis, as already
pointed out, is not the value of the service rendered, but the extraneous
circumstance that the employee needs to get a prescribed sum of money. to insure
her subsistence, health and morals. The ethical right of every worker, man or
woman, to a living wage may be conceded. One of the declared and important
purposes of trade organizations is to secure it. And with that principle, and with
every legitimate effort to realize it in fact, no one can quarrel; but the fallacy of the
proposed method of attaining it is that it assumes that every employer is bound at
all events to furnish it. The moral requirement implicit in every contract of
employment, viz., that the amount to be paid and the service to be rendered shall
bear to each other some relation of just equivalence, is completely ignored. The
necessities of the employee are alone considered, and these arise outside of the
employment, are the same when there is no employment, and as great in one
occupation as in another. Certainly the employer, by paying a fair equivalent for the
service rendered, though not sufficient to support the employee, has neither caused
nor contributed to her poverty. On the contrary, to the extent of what he pays, he
has relieved it. In principle, there can be no difference between the case of selling
labor and the case of selling goods. If one goes to the butcher, the baker or grocer to
buy food, he is morally entitled to obtain the worth of his money, but he is not
entitled to more. If what he gets is worth what he pays, he is not justified in
demanding [p559] more simply because he needs more, and the shopkeeper,
having dealt fairly and honestly in that transaction, is not concerned in any peculiar
sense with the question of his customer's necessities. Should a statute undertake to
vest in a commission power to determine the quantity of food necessary for
individual support and require the shopkeeper, if he sell to the individual at all, to
furnish that quantity at not more than a fixed maximum, it would undoubtedly fall
before the constitutional test. The fallacy of any argument in support of the validity
of such a statute would be quickly exposed. The argument in support of that now
being considered is equally fallacious, though the weakness of it may not be so
plain. A statute requiring an employer to pay in money, to pay at prescribed and
regular intervals, to pay the value of the services rendered, even to pay with fair
relation to the extent of the benefit obtained from the service, would be
understandable. But a statute which prescribes payment without regard to any of
these things and solely with relation to circumstances apart from the contract of
employment, the business affected by it and the work done under it, is so clearly the
product of a naked, arbitrary exercise of power that it cannot be allowed to stand
under the Constitution of the United States.
We are asked, upon the one hand, to consider the fact that several States have
adopted similar statutes, and we are invited, upon the other hand, to give weight to
the fact that three times as many States, presumably as well informed and as
anxious to promote the health and morals of their people, have refrained from
enacting such legislation. We have also been furnished with a large number of
printed opinions approving the policy of the minimum wage, and our own reading
has disclosed a large number to the contrary. These are all proper enough for the
consideration of the lawmaking bodies, since their tendency is to establish the
desirability or undesirability of the [p560] legislation; but they reflect no legitimate
light upon the question of its validity, and that is what we are called upon to decide.
The elucidation of that question cannot be aided by counting heads.
It is said that great benefits have resulted from the operation of such statutes, not
alone in the District of Columbia, but in the several States where they have been in
force. A mass of reports, opinions of special observers and students of the subject,
and the like has been brought before us in support of this statement, all of which we
have found interesting but only mildly persuasive. That the earnings of women now
are greater than they were formerly, and that conditions affecting women have
become better in other respects, may be conceded, but convincing indications of the
logical relation of these desirable changes to the law in question are significantly
lacking. They may be, and quite probably are, due to other causes. We cannot close
our eyes to the notorious fact that earnings everywhere in all occupations have
greatly increased -- not alone in States where the minimum wage law obtains, but in
the country generally -- quite as much or more among men as among women and in
occupations outside the reach of the law as in those governed by it. No real test of
the economic value of the law can be had during periods of maximum employment,
when general causes keep wages up to or above the minimum; that will come in
periods of depression and struggle for employment, when the efficient will be
employed at the minimum rate, while the less capable may not be employed at all.
Finally, it may be said that if, in the interest of the public welfare, the police power
may be invoked to justify the fixing of a minimum wage, it may, when the public
welfare is thought to require it, be invoked to justify a maximum wage. The power to
fix high wages connotes, by like course of reasoning, the power to fix low wages. If,
in the face of the guaranties of the Fifth [p561] Amendment, this form of legislation
shall be legally justified, the field for the operation of the police power will have
been widened to a great and dangerous degree. If, for example, in the opinion of
future lawmakers, wages in the building trades shall become so high as to preclude
people of ordinary means from building and owning homes, an authority which
sustains the minimum wage will be invoked to support a maximum wage for building
laborers and artisans, and the same argument which has been here urged to strip
the employer of his constitutional liberty of contract in one direction will be utilized
to strip the employee of his constitutional liberty of contract in the opposite
direction. A wrong decision does not end with itself: it is a precedent, and, with the
swing of sentiment, its bad influence may run from one extremity of the arc to the
other.
It has been said that legislation of the kind now under review is required in the
interest of social justice, for whose ends freedom of contract may lawfully be
subjected to restraint. The liberty of the individual to do as he pleases, even in
innocent matters, is not absolute. It must frequently yield to the common good, and
the line beyond which the power of interference may not be pressed is neither
definite nor unalterable, but may be made to move, within limits not well defined,
with changing need and circumstance. Any attempt to fix a rigid boundary would be
unwise, as well as futile. But, nevertheless, there are limits to the power, and when
these have been passed, it becomes the plain duty of the courts in the proper
exercise of their authority to so declare. To sustain the individual freedom of action
contemplated by the Constitution is not to strike down the common good, but to
exalt it, for surely the good of society as a whole cannot be better served than by
the preservation against arbitrary restraint of the liberties of its constituent
members. [p562]
It follows from what has been said that the act in question passes the limit
prescribed by the Constitution, and, accordingly, the decrees of the court below are
Affirmed.
G.R. No. L-5060 January 26, 1910
THE UNITED STATES, plaintiff-appellee,
vs.LUIS TORIBIO, defendant-appellant.
Rodriguez & Del Rosario, for appellant.
Attorney-General Villamor, for appellee.
CARSON, J.:
The evidence of record fully sustains the findings of the trial court that the appellant
slaughtered or caused to be slaughtered for human consumption, the carabao
described in the information, without a permit from the municipal treasure of the
municipality wherein it was slaughtered, in violation of the provisions of sections 30
and 33 of Act No. 1147, an Act regulating the registration, branding, and slaughter of
large cattle.
It appears that in the town of Carmen, in the Province of Bohol, wherein the animal
was slaughtered there is no municipal slaughterhouse, and counsel for appellant
contends that under such circumstances the provisions of Act No. 1147 do not
prohibit nor penalize the slaughter of large cattle without a permit of the municipal
treasure. Sections 30, 31, 32, and 33 of the Act are as follows:
SEC. 30. No large cattle shall be slaughtered or killed for food at the municipal
slaughterhouse except upon permit secured from the municipal treasure. Before
issuing the permit for the slaughter of large cattle for human consumption, the
municipal treasurer shall require for branded cattle the production of the original
certificate of ownership and certificates of transfer showing title in the person
applying for the permit, and for unbranded cattle such evidence as may satisfy said
treasurer as to the ownership of the animals for which permit to slaughter has been
requested.
SEC. 31. No permit to slaughter has been carabaos shall be granted by the
municipal treasurer unless such animals are unfit for agricultural work or for draft
purposes, and in no event shall a permit be given to slaughter for food any animal of
any kind which is not fit for human consumption.
SEC. 32. The municipal treasurer shall keep a record of all permits for slaughter
issued by him, and such record shall show the name and residence of the owner,
and the class, sex, age, brands, knots of radiated hair commonly know as remolinos
or cowlicks, and other marks of identification of the animal for the slaughter of which
permit is issued and the date on which such permit is issued. Names of owners shall
be alphabetically arranged in the record, together with date of permit.
A copy of the record of permits granted for slaughter shall be forwarded monthly to
the provincial treasurer, who shall file and properly index the same under the name
of the owner, together with date of permit.
SEC. 33. Any person slaughtering or causing to be slaughtered for human
consumption or killing for food at the municipal slaughterhouse any large cattle
except upon permit duly secured from the municipal treasurer, shall be punished by
a fine of not less than ten nor more than five hundred pesos, Philippine currency, or
by imprisonment for not less than one month nor more than six months, or by both
such fine and imprisonment, in the discretion of the court.
It is contended that the proper construction of the language of these provisions
limits the prohibition contained in section 30 and the penalty imposed in section 33
to cases (1) of slaughter of large cattle for human consumption in a municipal
slaughter without a permit duly secured from the municipal treasurer, and (2) cases
of killing of large cattle for food in a municipal slaughterhouse without a permit duly
secured from the municipal treasurer; and it is urged that the municipality of
Carmen not being provided with a municipal slaughterhouse, neither the prohibition
nor the penalty is applicable to cases of slaughter of large cattle without a permit in
that municipality.
We are of opinion, however, that the prohibition contained in section 30 refers (1) to
the slaughter of large cattle for human consumption, anywhere, without a permit
duly secured from the municipal treasurer, and (2) expressly and specifically to the
killing for food of large cattle at a municipal slaughterhouse without such permit;
and that the penalty provided in section 33 applies generally to the slaughter of
large cattle for human consumption, anywhere, without a permit duly secured from
the municipal treasurer, and specifically to the killing for food of large cattle at a
municipal slaughterhouse without such permit.
It may be admitted at once, that the pertinent language of those sections taken by
itself and examined apart from the context fairly admits of two constructions: one
whereby the phrase "at the municipal slaughterhouse" may be taken as limiting and
restricting both the word "slaughtered" and the words "killed for food" in section 30,
and the words "slaughtering or causing to be slaughtered for human consumption"
and the words "killing for food" in section 33; and the other whereby the phrase "at
the municipal slaughterhouse" may be taken as limiting and restricting merely the
words "killed for food" and "killing for food" as used in those sections. But upon a
reading of the whole Act, and keeping in mind the manifest and expressed purpose
and object of its enactment, it is very clear that the latter construction is that which
should be adopted.
The Act primarily seeks to protect the "large cattle" of the Philippine Islands against
theft and to make easy the recovery and return of such cattle to their proper owners
when lost, strayed, or stolen. To this end it provides an elaborate and compulsory
system for the separate branding and registry of ownership of all such cattle
throughout the Islands, whereby owners are enabled readily and easily to establish
their title; it prohibits and invalidates all transfers of large cattle unaccompanied by
certificates of transfer issued by the proper officer in the municipality where the
contract of sale is made; and it provides also for the disposition of thieves or persons
unlawfully in possession, so as to protect the rights of the true owners. All this,
manifestly, in order to make it difficult for any one but the rightful owner of such
cattle to retain them in his possession or to dispose of them to others. But the
usefulness of this elaborate and compulsory system of identification, resting as it
does on the official registry of the brands and marks on each separate animal
throughout the Islands, would be largely impaired, if not totally destroyed, if such
animals were requiring proof of ownership and the production of certificates of
registry by the person slaughtering or causing them to be slaughtered, and this
especially if the animals were slaughtered privately or in a clandestine manner
outside of a municipal slaughterhouse. Hence, as it would appear, sections 30 and
33 prohibit and penalize the slaughter for human consumption or killing for food at a
municipal slaughterhouse of such animals without a permit issued by the municipal
treasurer, and section 32 provides for the keeping of detailed records of all such
permits in the office of the municipal and also of the provincial treasurer.
If, however, the construction be placed on these sections which is contended for by
the appellant, it will readily be seen that all these carefully worked out provisions for
the registry and record of the brands and marks of identification of all large cattle in
the Islands would prove in large part abortion, since thieves and persons unlawfully
in possession of such cattle, and naturally would, evade the provisions of the law by
slaughtering them outside of municipal slaughterhouses, and thus enjoy the fruits of
their wrongdoing without exposing themselves to the danger of detection incident to
the bringing of the animals to the public slaughterhouse, where the brands and
other identification marks might be scrutinized and proof of ownership required.
Where the language of a statute is fairly susceptible of two or more constructions,
that construction should be adopted which will most tend to give effect to the
manifest intent of the lawmaker and promote the object for which the statute was
enacted, and a construction should be rejected which would tend to render abortive
other provisions of the statute and to defeat the object which the legislator sought
to attain by its enactment. We are of opinion, therefore, that sections 30 and 33 of
the Act prohibit and penalize the slaughtering or causing to be slaughtered for
human consumption of large cattle at any place without the permit provided for in
section 30.
It is not essential that an explanation be found for the express prohibition in these
sections of the "killing for food at a municipal slaughterhouse" of such animals,
despite the fact that this prohibition is clearly included in the general prohibition of
the slaughter of such animals for human consumption anywhere; but it is not
improbable that the requirement for the issue of a permit in such cases was
expressly and specifically mentioned out of superabundance of precaution, and to
avoid all possibility of misunderstanding in the event that some of the municipalities
should be disposed to modify or vary the general provisions of the law by the
passage of local ordinances or regulations for the control of municipal
slaughterhouse.
Similar reasoning applied to the specific provisions of section 31 of the Act leads to
the same conclusion. One of the secondary purposes of the law, as set out in that
section, is to prevent the slaughter for food of carabaos fit for agricultural and draft
purposes, and of all animals unfit for human consumption. A construction which
would limit the prohibitions and penalties prescribed in the statute to the killing of
such animals in municipal slaughterhouses, leaving unprohibited and unpenalized
their slaughter outside of such establishments, so manifestly tends to defeat the
purpose and object of the legislator, that unless imperatively demanded by the
language of the statute it should be rejected; and, as we have already indicated, the
language of the statute is clearly susceptible of the construction which we have
placed upon it, which tends to make effective the provisions of this as well as all the
other sections of the Act.
It appears that the defendant did in fact apply for a permit to slaughter his carabao,
and that it was denied him on the ground that the animal was not unfit "for
agricultural work or for draft purposes." Counsel for appellant contends that the
statute, in so far as it undertakes to penalize the slaughter of carabaos for human
consumption as food, without first obtaining a permit which can not be procured in
the event that the animal is not unfit "for agricultural work or draft purposes," is
unconstitutional and in violation of the terms of section 5 of the Philippine Bill (Act of
Congress, July 1, 1902), which provides that "no law shall be enacted which shall
deprive any person of life, liberty, or property without due process of law."
It is not quite clear from the argument of counsel whether his contention is that this
provision of the statute constitutes a taking of property for public use in the exercise
of the right of eminent domain without providing for the compensation of the
owners, or that it is an undue and unauthorized exercise of the police power of the
State. But whatever may be the basis of his contention, we are of opinion,
appropriating, with necessary modifications understood, the language of that great
jurist, Chief Justice Shaw (in the case of Com. vs. Tewksbury, 11 Met., 55, where the
question involved was the constitutionality of a statute prohibiting and penalizing
the taking or carrying away by any person, including the owner, of any stones,
gravel, or sand, from any of the beaches in the town of Chesea,) that the law in
question "is not a taking of the property for public use, within the meaning of the
constitution, but is a just and legitimate exercise of the power of the legislature to
regulate and restrain such particular use of the property as would be inconsistent
with or injurious to the rights of the public. All property is acquired and held under
the tacit condition that it shall not be so used as to injure the equal rights of others
or greatly impair the public rights and interest of the community."
It may be conceded that the benificial use and exclusive enjoyment of the property
of all carabao owners in these Islands is to a greater or less degree interfered with
by the provisions of the statute; and that, without inquiring what quantum of interest
thus passes from the owners of such cattle, it is an interest the deprivation of which
detracts from their right and authority, and in some degree interferes with their
exclusive possession and control of their property, so that if the regulations in
question were enacted for purely private purpose, the statute, in so far as these
regulations are concerned, would be a violation of the provisions of the Philippine Bill
relied on be appellant; but we are satisfied that it is not such a taking, such an
interference with the right and title of the owners, as is involved in the exercise by
the State of the right of eminent domain, so as to entitle these owners to
compensation, and that it is no more than "a just restrain of an injurious private use
of the property, which the legislature had authority to impose."
In the case of Com. vs. Alger (7 Cush., 53, 84), wherein the doctrine laid down in
Com. vs. Tewksbury (supra) was reviewed and affirmed, the same eminent jurist who
wrote the former opinion, in distinguishing the exercise of the right of eminent
domain from the exercise of the sovereign police powers of the State, said:
We think it is settled principle, growing out of the nature of well-ordered civil society,
that every holder of property, however absolute and unqualified may be his title,
holds it under the implied liability that his use of it may be so regulated that is shall
not be injurious to the equal enjoyment of others having an equal right to the
enjoyment of their property, nor injurious to the rights of the community. . . . Rights
of property, like all other social and conventional rights, are subject to such
reasonable limitations in their enjoyment as shall prevent them from being injurious,
and to such reasonable restrain and regulations establish by law, as the legislature,
under the governing and controlling power vested in them by the constitution, may
think necessary and expedient.
This is very different from the right of eminent domain, the right of a government to
take and appropriate private property to public use, whenever the public exigency
requires it; which can be done only on condition of providing a reasonable
compensation therefor. The power we allude to is rather the police power, the power
vested in the legislature by the constitution, to make, ordain, and establish all
manner of wholesome and reasonable laws, statutes, and ordinances, either with
penalties or without, not repugnant to the constitution, as they shall judge to be for
the good and welfare of the commonwealth, and of the subjects of the same.
It is much easier to perceive and realize the existence and sources of this power
than to mark its boundaries or prescribe limits to its exercise.
Applying these principles, we are opinion that the restrain placed by the law on the
slaughter for human consumption of carabaos fit for agricultural work and draft
purpose is not an appropriation of property interests to a "public use," and is not,
therefore, within the principle of the exercise by the State of the right of eminent
domain. It is fact a mere restriction or limitation upon a private use, which the
legislature deemed to be determental to the public welfare. And we think that an
examination of the general provisions of the statute in relation to the public interest
which it seeks to safeguard and the public necessities for which it provides, leaves
no room for doubt that the limitations and restraints imposed upon the exercise of
rights of ownership by the particular provisions of the statute under consideration
were imposed not for private purposes but, strictly, in the promotion of the "general
welfare" and "the public interest" in the exercise of the sovereign police power which
every State possesses for the general public welfare and which "reaches to every
species of property within the commonwealth."
For several years prior to the enactment of the statute a virulent contagious or
infectious disease had threatened the total extinction of carabaos in these Islands, in
many sections sweeping away seventy, eighty, and in some cases as much as ninety
and even one hundred per cent of these animals. Agriculture being the principal
occupation of the people, and the carabao being the work animal almost exclusively
in use in the fields as well as for draft purposes, the ravages of the disease with
which they were infected struck an almost vital blow at the material welfare of the
country. large areas of productive land lay waste for years, and the production of
rice, the staple food of the inhabitants of the Islands, fell off to such an extent that
the impoverished people were compelled to spend many millions of pesos in its
importation, notwithstanding the fact that with sufficient work animals to cultivate
the fields the arable rice lands of the country could easily be made to produce a
supply more that sufficient for its own needs. The drain upon the resources of the
Islands was such that famine soon began to make itself felt, hope sank in the breast
of the people, and in many provinces the energies of the breadwinners seemed to
be paralyzed by the apparently hopeless struggle for existence with which they were
confronted.
To meet these conditions, large sums of money were expended by the Government
in relieving the immediate needs of the starving people, three millions of dollars
were voted by the Congress of the United States as a relief or famine fund, public
works were undertaken to furnish employment in the provinces where the need was
most pressing, and every effort made to alleviate the suffering incident to the
widespread failure of the crops throughout the Islands, due in large measure to the
lack of animals fit for agricultural work and draft purposes.
Such measures, however, could only temporarily relieve the situation, because in an
agricultural community material progress and permanent prosperity could hardly be
hoped for in the absence of the work animals upon which such a community must
necessarily rely for the cultivation of the fields and the transportation of the
products of the fields to market. Accordingly efforts were made by the Government
to increase the supply of these animals by importation, but, as appears from the
official reports on this subject, hope for the future depended largely on the
conservation of those animals which had been spared from the ravages of the
diseased, and their redistribution throughout the Islands where the need for them
was greatest.
At large expense, the services of experts were employed, with a view to the
discovery and applications of preventive and curative remedies, and it is hoped that
these measures have proved in some degree successful in protecting the present
inadequate supply of large cattle, and that the gradual increase and redistribution of
these animals throughout the Archipelago, in response to the operation of the laws
of supply and demand, will ultimately results in practically relieving those sections
which suffered most by the loss of their work animals.
As was to be expected under such conditions, the price of carabaos rapidly increase
from the three to five fold or more, and it may fairly be presumed that even if the
conservative measures now adopted prove entirely successful, the scant supply will
keep the price of these animals at a high figure until the natural increase shall have
more nearly equalized the supply to the demand.

Coincident with and probably intimately connected with this sudden rise in the price
of cattle, the crime of cattle stealing became extremely prevalent throughout the
Islands, necessitating the enactment of a special law penalizing with the severest
penalties the theft of carabaos and other personal property by roving bands; and it
must be assumed from the legislative authority found that the general welfare of the
Islands necessitated the enactment of special and somewhat burdensome provisions
for the branding and registration of large cattle, and supervision and restriction of
their slaughter for food. It will hardly be questioned that the provisions of the statute
touching the branding and registration of such cattle, and prohibiting and penalizing
the slaughter of diseased cattle for food were enacted in the due and proper
exercise of the police power of the State; and we are of opinion that, under all the
circumstances, the provision of the statute prohibiting and penalizing the slaughter
for human consumption of carabaos fit for work were in like manner enacted in the
due and proper exercise of that power, justified by the exigent necessities of existing
conditions, and the right of the State to protect itself against the overwhelming
disaster incident to the further reduction of the supply of animals fit for agricultural
work or draft purposes.
It is, we think, a fact of common knowledge in these Islands, and disclosed by the
official reports and records of the administrative and legislative departments of the
Government, that not merely the material welfare and future prosperity of this
agricultural community were threatened by the ravages of the disease which swept
away the work animals during the years prior to the enactment of the law under
consideration, but that the very life and existence of the inhabitants of these Islands
as a civilized people would be more or less imperiled by the continued destruction of
large cattle by disease or otherwise. Confronted by such conditions, there can be no
doubt of the right of the Legislature to adopt reasonable measures for the
preservation of work animals, even to the extent of prohibiting and penalizing what
would, under ordinary conditions, be a perfectly legitimate and proper exercise of
rights of ownership and control of the private property of the citizen. The police
power rests upon necessity and the right of self-protection and if ever the invasion of
private property by police regulation can be justified, we think that the reasonable
restriction placed upon the use of carabaos by the provision of the law under
discussion must be held to be authorized as a reasonable and proper exercise of that
power.
As stated by Mr. Justice Brown in his opinion in the case of Lawton vs. Steele (152
U.S., 133, 136):
The extent and limits of what is known as the police power have been a fruitful
subject of discussion in the appellate courts of nearly every State in the Union. It is
universally conceded to include everything essential to the public safely, health, and
morals, and to justify the destruction or abatement, by summary proceedings, of
whatever may be regarded as a public nuisance. Under this power it has been held
that the State may order the destruction of a house falling to decay or otherwise
endangering the lives of passers-by; the demolition of such as are in the path of a
conflagration; the slaughter of diseased cattle; the destruction of decayed or
unwholesome food; the prohibition of wooden buildings in cities; the regulation of
railways and other means of public conveyance, and of interments in burial grounds;
the restriction of objectionable trades to certain localities; the compulsary
vaccination of children; the confinement of the insane or those afficted with
contagious deceases; the restraint of vagrants, beggars, and habitual drunkards; the
suppression of obscene publications and houses of ill fame; and the prohibition of
gambling houses and places where intoxicating liquors are sold. Beyond this,
however, the State may interfere wherever the public interests demand it, and in
this particular a large discretion is necessarily vested in the legislature to determine,
not only what the interests of the public require, but what measures are necessary
for the protection of such interests. (Barbier vs. Connolly, 113 U. S., 27; Kidd vs.
Pearson, 128 U. S., 1.) To justify the State in thus interposing its authority in behalf
of the public, it must appear, first, that the interests of the public generally, as
distinguished from those of a particular class, require such interference; and,
second, that the means are reasonably necessary for the accomplishment of the
purpose, and not unduly oppressive upon individuals. The legislature may not, under
the guise of protecting the public interests, arbitrarily interfere with private
business, or impose unusual and unnecessary restrictions upon lawful occupations.
In other words, its determination as to what is a proper exercise of its police powers
is not final or conclusive, but is subject to the supervision of the court.
From what has been said, we think it is clear that the enactment of the provisions of
the statute under consideration was required by "the interests of the public
generally, as distinguished from those of a particular class;" and that the prohibition
of the slaughter of carabaos for human consumption, so long as these animals are fit
for agricultural work or draft purposes was a "reasonably necessary" limitation on
private ownership, to protect the community from the loss of the services of such
animals by their slaughter by improvident owners, tempted either by greed of
momentary gain, or by a desire to enjoy the luxury of animal food, even when by so
doing the productive power of the community may be measurably and dangerously
affected.
Chief Justice Redfield, in Thorpe vs. Rutland & Burlington R. R. Co. (27 Vt., 140), said
(p. 149) that by this "general police power of the State, persons and property are
subjected to all kinds of restraints and burdens, in order to secure the general
comfort, health, and prosperity of the State; of the perfect right in the legislature to
do which no question ever was, or, upon acknowledge and general principles, ever
can be made, so far as natural persons are concerned."
And Cooley in his "Constitutional Limitations" (6th ed., p. 738) says:
It would be quite impossible to enumerate all the instances in which the police
power is or may be exercised, because the various cases in which the exercise by
one individual of his rights may conflict with a similar exercise by others, or may be
detrimental to the public order or safety, are infinite in number and in variety. And
there are other cases where it becomes necessary for the public authorities to
interfere with the control by individuals of their property, and even to destroy it,
where the owners themselves have fully observed all their duties to their fellows and
to the State, but where, nevertheless, some controlling public necessity demands
the interference or destruction. A strong instance of this description is where it
becomes necessary to take, use, or destroy the private property of individuals to
prevent the spreading of a fire, the ravages of a pestilence, the advance of a hostile
army, or any other great public calamity. Here the individual is in no degree in fault,
but his interest must yield to that "necessity" which "knows no law." The
establishment of limits within the denser portions of cities and villages within which
buildings constructed of inflammable materials shall not be erected or repaired may
also, in some cases, be equivalent to a destruction of private property; but
regulations for this purpose have been sustained notwithstanding this result. Wharf
lines may also be established for the general good, even though they prevent the
owners of water-fronts from building out on soil which constitutes private property.
And, whenever the legislature deem it necessary to the protection of a harbor to
forbid the removal of stones, gravel, or sand from the beach, they may establish
regulations to that effect under penalties, and make them applicable to the owners
of the soil equally with other persons. Such regulations are only "a just restraint of
an injurious use of property, which the legislature have authority" to impose.
So a particular use of property may sometimes be forbidden, where, by a change of
circumstances, and without the fault of the power, that which was once lawful,
proper, and unobjectionable has now become a public nuisance, endangering the
public health or the public safety. Milldams are sometimes destroyed upon this
grounds; and churchyards which prove, in the advance of urban population, to be
detrimental to the public health, or in danger of becoming so, are liable to be closed
against further use for cemetery purposes.
These citations from some of the highest judicial and text-book authorities in the
United States clearly indicate the wide scope and extent which has there been given
to the doctrine us in our opinion that the provision of the statute in question being a
proper exercise of that power is not in violation of the terms of section 5 of the
Philippine Bill, which provide that "no law shall be enacted which shall deprive any
person of life, liberty, or property without due process of law," a provision which
itself is adopted from the Constitution of the United States, and is found in
substance in the constitution of most if not all of the States of the Union.
The judgment of conviction and the sentence imposed by the trial court should be
affirmed with the costs of this instance against the appellant. So ordered.
G.R. No. L-10572 December 21, 1915
FRANCIS A. CHURCHILL and STEWART TAIT, plaintiffs-appellees,
vs.JAMES J. RAFFERTY, Collector of Internal Revenue, defendant-appellant.
Attorney-General Avancea for appellant.
Aitken and DeSelms for appellees.
TRENT, J.:
The judgment appealed from in this case perpetually restrains and prohibits the
defendant and his deputies from collecting and enforcing against the plaintiffs and
their property the annual tax mentioned and described in subsection (b) of section
100 of Act No. 2339, effective July 1, 1914, and from destroying or removing any
sign, signboard, or billboard, the property of the plaintiffs, for the sole reason that
such sign, signboard, or billboard is, or may be, offensive to the sight; and decrees
the cancellation of the bond given by the plaintiffs to secure the issuance of the
preliminary injunction granted soon after the commencement of this action.
This case divides itself into two parts and gives rise to two main questions; (1) that
relating to the power of the court to restrain by injunction the collection of the tax
complained of, and (2) that relating to the validity of those provisions of subsection
(b) of section 100 of Act No. 2339, conferring power upon the Collector of Internal
Revenue to remove any sign, signboard, or billboard upon the ground that the same
is offensive to the sight or is otherwise a nuisance.
The first question is one of the jurisdiction and is of vital importance to the
Government. The sections of Act No. 2339, which bear directly upon the subject, are
139 and 140. The first expressly forbids the use of an injunction to stay the
collection of any internal revenue tax; the second provides a remedy for any wrong
in connection with such taxes, and this remedy was intended to be exclusive,
thereby precluding the remedy by injunction, which remedy is claimed to be
constitutional. The two sections, then, involve the right of a dissatisfied taxpayers to
use an exceptional remedy to test the validity of any tax or to determine any other
question connected therewith, and the question whether the remedy by injunction is
exceptional.
Preventive remedies of the courts are extraordinary and are not the usual remedies.
The origin and history of the writ of injunction show that it has always been regarded
as an extraordinary, preventive remedy, as distinguished from the common course
of the law to redress evils after they have been consummated. No injunction issues
as of course, but is granted only upon the oath of a party and when there is no
adequate remedy at law. The Government does, by section 139 and 140, take away
the preventive remedy of injunction, if it ever existed, and leaves the taxpayer, in a
contest with it, the same ordinary remedial actions which prevail between citizen
and citizen. The Attorney-General, on behalf of the defendant, contends that there is
no provisions of the paramount law which prohibits such a course. While, on the
other hand, counsel for plaintiffs urge that the two sections are unconstitutional
because (a) they attempt to deprive aggrieved taxpayers of all substantial remedy
for the protection of their property, thereby, in effect, depriving them of their
property without due process of law, and (b) they attempt to diminish the
jurisdiction of the courts, as conferred upon them by Acts Nos. 136 and 190, which
jurisdiction was ratified and confirmed by the Act of Congress of July 1, 1902.
In the first place, it has been suggested that section 139 does not apply to the tax in
question because the section, in speaking of a "tax," means only legal taxes; and
that an illegal tax (the one complained of) is not a tax, and, therefore, does not fall
within the inhibition of the section, and may be restrained by injunction. There is no
force in this suggestion. The inhibition applies to all internal revenue taxes imposes,
or authorized to be imposed, by Act No. 2339. (Snyder vs. Marks, 109 U.S., 189.)
And, furthermore, the mere fact that a tax is illegal, or that the law, by virtue of
which it is imposed, is unconstitutional, does not authorize a court of equity to
restrain its collection by injunction. There must be a further showing that there are
special circumstances which bring the case under some well recognized head of
equity jurisprudence, such as that irreparable injury, multiplicity of suits, or a cloud
upon title to real estate will result, and also that there is, as we have indicated, no
adequate remedy at law. This is the settled law in the United States, even in the
absence of statutory enactments such as sections 139 and 140. (Hannewinkle vs.
Mayor, etc., of Georgetown, 82 U.S., 547; Indiana Mfg. Co. vs. Koehne, 188 U.S., 681;
Ohio Tax cases, 232 U. S., 576, 587; Pittsburgh C. C. & St. L. R. Co. vs. Board of
Public Works, 172 U. S., 32; Shelton vs. Plat, 139 U.S., 591; State Railroad Tax Cases,
92 U. S., 575.) Therefore, this branch of the case must be controlled by sections 139
and 140, unless the same be held unconstitutional, and consequently, null and void.
The right and power of judicial tribunals to declare whether enactments of the
legislature exceed the constitutional limitations and are invalid has always been
considered a grave responsibility, as well as a solemn duty. The courts invariably
give the most careful consideration to questions involving the interpretation and
application of the Constitution, and approach constitutional questions with great
deliberation, exercising their power in this respect with the greatest possible caution
and even reluctance; and they should never declare a statute void, unless its
invalidity is, in their judgment, beyond reasonable doubt. To justify a court in
pronouncing a legislative act unconstitutional, or a provision of a state constitution
to be in contravention of the Constitution of the United States, the case must be so
clear to be free from doubt, and the conflict of the statute with the constitution must
be irreconcilable, because it is but a decent respect to the wisdom, the integrity, and
the patriotism of the legislative body by which any law is passed to presume in favor
of its validity until the contrary is shown beyond reasonable doubt. Therefore, in no
doubtful case will the judiciary pronounce a legislative act to be contrary to the
constitution. To doubt the constitutionality of a law is to resolve the doubt in favor of
its validity. (6 Ruling Case Law, secs. 71, 72, and 73, and cases cited therein.)
It is also the settled law in the United States that "due process of law" does not
always require, in respect to the Government, the same process that is required
between citizens, though it generally implies and includes regular allegations,
opportunity to answer, and a trial according to some well settled course of judicial
proceedings. The case with which we are dealing is in point. A citizen's property,
both real and personal, may be taken, and usually is taken, by the government in
payment of its taxes without any judicial proceedings whatever. In this country, as
well as in the United States, the officer charged with the collection of taxes is
authorized to seize and sell the property of delinquent taxpayers without applying to
the courts for assistance, and the constitutionality of the law authorizing this
procedure never has been seriously questioned. (City of Philadelphia vs. [Diehl] The
Collector, 5 Wall., 720; Nicholl vs. U.S., 7 Wall., 122, and cases cited.) This must
necessarily be the course, because it is upon taxation that the Government chiefly
relies to obtain the means to carry on its operations, and it is of the utmost
importance that the modes adopted to enforce the collection of the taxes levied
should be summary and interfered with as little as possible. No government could
exist if every litigious man were permitted to delay the collection of its taxes. This
principle of public policy must be constantly borne in mind in determining cases
such as the one under consideration.
With these principles to guide us, we will proceed to inquire whether there is any
merit in the two propositions insisted upon by counsel for the plaintiffs. Section 5 of
the Philippine Bill provides: "That no law shall be enacted in said Islands which shall
deprive any person of life, liberty, or property without due process of law, or deny to
any person therein the equal protection of the law."
The origin and history of these provisions are well-known. They are found in
substance in the Constitution of the United States and in that of ever state in the
Union.
Section 3224 of the Revised Statutes of the United States, effective since 1867,
provides that: "No suit for the purpose of restraining the assessment or collection of
any tax shall be maintained in any court."
Section 139, with which we have been dealing, reads: "No court shall have authority
to grant an injunction to restrain the collection of any internal-revenue tax."
A comparison of these two sections show that they are essentially the same. Both
expressly prohibit the restraining of taxes by injunction. If the Supreme Court of the
United States has clearly and definitely held that the provisions of section 3224 do
not violate the "due process of law" and "equal protection of the law" clauses in the
Constitution, we would be going too far to hold that section 139 violates those same
provisions in the Philippine Bill. That the Supreme Court of the United States has so
held, cannot be doubted.
In Cheatham vs. United States (92 U.S., 85,89) which involved the validity of an
income tax levied by an act of Congress prior to the one in issue in the case of
Pollock vs. Farmers' Loan & Trust Co. (157 U.S., 429) the court, through Mr. Justice
Miller, said: "If there existed in the courts, state or National, any general power of
impeding or controlling the collection of taxes, or relieving the hardship incident to
taxation, the very existence of the government might be placed in the power of a
hostile judiciary. (Dows vs. The City of Chicago, 11 Wall., 108.) While a free course of
remonstrance and appeal is allowed within the departments before the money is
finally exacted, the General Government has wisely made the payment of the tax
claimed, whether of customs or of internal revenue, a condition precedent to a
resort to the courts by the party against whom the tax is assessed. In the internal
revenue branch it has further prescribed that no such suit shall be brought until the
remedy by appeal has been tried; and, if brought after this, it must be within six
months after the decision on the appeal. We regard this as a condition on which
alone the government consents to litigate the lawfulness of the original tax. It is not
a hard condition. Few governments have conceded such a right on any condition. If
the compliance with this condition requires the party aggrieved to pay the money,
he must do it."
Again, in State Railroad Tax Cases (92 U.S., 575, 613), the court said: "That there
might be no misunderstanding of the universality of this principle, it was expressly
enacted, in 1867, that "no suit for the purpose of restraining the assessment or
collection of any tax shall be maintained in any court." (Rev, Stat., sec. 3224.) And
though this was intended to apply alone to taxes levied by the United States, it
shows the sense of Congress of the evils to be feared if courts of justice could, in
any case, interfere with the process of collecting taxes on which the government
depends for its continued existence. It is a wise policy. It is founded in the simple
philosophy derived from the experience of ages, that the payment of taxes has to be
enforced by summary and stringent means against a reluctant and often adverse
sentiment; and to do this successfully, other instrumentalities and other modes of
procedure are necessary, than those which belong to courts of justice."
And again, in Snyder vs. Marks (109 U.S., 189), the court said: "The remedy of a suit
to recover back the tax after it is paid is provided by statute, and a suit to restrain
its collection is forbidden. The remedy so given is exclusive, and no other remedy
can be substituted for it. Such has been the current of decisions in the Circuit Courts
of the United States, and we are satisfied it is a correct view of the law."itc-a1f
In the consideration of the plaintiffs' second proposition, we will attempt to show (1)
that the Philippine courts never have had, since the American occupation, the power
to restrain by injunction the collection of any tax imposed by the Insular Government
for its own purpose and benefit, and (2) that assuming that our courts had or have
such power, this power has not been diminished or curtailed by sections 139 and
140.
We will first review briefly the former and present systems of taxation. Upon the
American occupation of the Philippine, there was found a fairly complete system of
taxation. This system was continued in force by the military authorities, with but few
changes, until the Civil Government assumed charge of the subject. The principal
sources of revenue under the Spanish regime were derived from customs receipts,
the so-called industrial taxes, the urbana taxes, the stamp tax, the personal cedula
tax, and the sale of the public domain. The industrial and urbana taxes constituted
practically an income tax of some 5 per cent on the net income of persons engaged
in industrial and commercial pursuits and on the income of owners of improved city
property. The sale of stamped paper and adhesive stamp tax. The cedula tax was a
graduated tax, ranging from nothing up to P37.50. The revenue derived from the
sale of the public domain was not considered a tax. The American authorities at
once abolished the cedula tax, but later restored it in a modified form, charging for
each cedula twenty centavos, an amount which was supposed to be just sufficient to
cover the cost of issuance. The urbana tax was abolished by Act No. 223, effective
September 6, 1901.
The "Municipal Code" (Act No. 82) and the Provincial Government Act (No. 83), both
enacted in 1901, authorize municipal councils and provincial boards to impose an ad
valorem tax on real estate. The Municipal Code did not apply to the city of Manila.
This city was given a special charter (Act No. 183), effective August 30, 1901; Under
this charter the Municipal Board of Manila is authorized and empowered to impose
taxes upon real estate and, like municipal councils, to license and regulate certain
occupations. Customs matters were completely reorganized by Act No. 355,
effective at the port of Manila on February 7, 1902, and at other ports in the
Philippine Islands the day after the receipt of a certified copy of the Act. The Internal
Revenue Law of 1904 (Act No. 1189), repealed all existing laws, ordinances, etc.,
imposing taxes upon the persons, objects, or occupations taxed under that act, and
all industrial taxes and stamp taxes imposed under the Spanish regime were
eliminated, but the industrial tax was continued in force until January 1, 1905. This
Internal Revenue Law did not take away from municipal councils, provincial boards,
and the Municipal Board of the city of Manila the power to impose taxes upon real
estate. This Act (No. 1189), with its amendments, was repealed by Act No. 2339, an
act "revising and consolidating the laws relative to internal revenue."
Section 84 of Act No. 82 provides that "No court shall entertain any suit assailing the
validity of a tax assessed under this act until the taxpayer shall have paid, under
protest, the taxes assessed against him, . . . ."
This inhibition was inserted in section 17 of Act No. 83 and applies to taxes imposed
by provincial boards. The inhibition was not inserted in the Manila Charter until the
passage of Act No. 1793, effective October 12, 1907. Act No. 355 expressly makes
the payment of the exactions claimed a condition precedent to a resort to the courts
by dissatisfied importers. Section 52 of Act No. 1189 provides "That no courts shall
have authority to grant an injunction restraining the collection of any taxes imposed
by virtue of the provisions of this Act, but the remedy of the taxpayer who claims
that he is unjustly assessed or taxed shall be by payment under protest of the sum
claimed from him by the Collector of Internal Revenue and by action to recover back
the sum claimed to have been illegally collected."
Sections 139 and 140 of Act No. 2339 contain, as we have indicated, the same
prohibition and remedy. The result is that the courts have been expressly forbidden,
in every act creating or imposing taxes or imposts enacted by the legislative body of
the Philippines since the American occupation, to entertain any suit assailing the
validity of any tax or impost thus imposed until the tax shall have been paid under
protest. The only taxes which have not been brought within the express inhibition
were those included in that part of the old Spanish system which completely
disappeared on or before January 1, 1905, and possibly the old customs duties which
disappeared in February, 1902.
Section 56 of the Organic Act (No. 136), effective June 16, 1901, provides that
"Courts of First Instance shall have original jurisdiction:x x x xxx xxx
2. In all civil actions which involve the ... legality of any tax, impost, or
assessment, . . . .x x x xxx xxx
7. Said courts and their judges, or any of them, shall have power to issue writs
of injunction, mandamus, certiorari, prohibition, quo warranto, and habeas corpus in
their respective provinces and districts, in the manner provided in the Code of Civil
Procedure.
The provisions of the Code of Civil Procedure (Act No. 190), effective October 1,
1901, which deals with the subject of injunctions, are sections 162 to 172, inclusive.
Injunctions, as here defined, are of two kinds; preliminary and final. The former may
be granted at any time after the commencement of the action and before final
judgment, and the latter at the termination of the trial as the relief or part of the
relief prayed for (sec. 162). Any judge of the Supreme Court may grant a preliminary
injunction in any action pending in that court or in any Court of First Instance. A
preliminary injunction may also be granted by a judge of the Court of First Instance
in actions pending in his district in which he has original jurisdiction (sec. 163). But
such injunctions may be granted only when the complaint shows facts entitling the
plaintiff to the relief demanded (sec. 166), and before a final or permanent
injunction can be granted, it must appear upon the trial of the action that the
plaintiff is entitled to have commission or continuance of the acts complained of
perpetually restrained (sec. 171). These provisions authorize the institution in Courts
of First Instance of what are known as "injunction suits," the sole object of which is
to obtain the issuance of a final injunction. They also authorize the granting of
injunctions as aiders in ordinary civil actions. We have defined in Davesa vs. Arbes
(13 Phil. Rep., 273), an injunction to be "A "special remedy" adopted in that code
(Act 190) from American practice, and originally borrowed from English legal
procedure, which was there issued by the authority and under the seal of a court of
equity, and limited, as in other cases where equitable relief is sought, to those cases
where there is no "plain, adequate, and complete remedy at law,"which will not be
granted while the rights between the parties are undetermined, except in
extraordinary cases where material and irreparable injury will be done,"which cannot
be compensated in damages . . .
By paragraph 2 of section 56 of Act No. 136, supra, and the provisions of the various
subsequent Acts heretofore mentioned, the Insular Government has consented to
litigate with aggrieved persons the validity of any original tax or impost imposed by
it on condition that this be done in ordinary civil actions after the taxes or exactions
shall have been paid. But it is said that paragraph 2 confers original jurisdiction upon
Courts of First Instance to hear and determine "all civil actions" which involve the
validity of any tax, impost or assessment, and that if the all-inclusive words "all" and
"any" be given their natural and unrestricted meaning, no action wherein that
question is involved can arise over which such courts do not have jurisdiction.
(Barrameda vs. Moir, 25 Phil. Rep., 44.) This is true. But the term "civil actions" had
its well defined meaning at the time the paragraph was enacted. The same
legislative body which enacted paragraph 2 on June 16, 1901, had, just a few
months prior to that time, defined the only kind of action in which the legality of any
tax imposed by it might be assailed. (Sec. 84, Act 82, enacted January 31, 1901, and
sec. 17, Act No. 83, enacted February 6, 1901.) That kind of action being payment of
the tax under protest and an ordinary suit to recover and no other, there can be no
doubt that Courts of First Instance have jurisdiction over all such actions. The
subsequent legislation on the same subject shows clearly that the Commission, in
enacting paragraph 2, supra, did not intend to change or modify in any way section
84 of Act No. 82 and section 17 of Act No. 83, but, on the contrary, it was intended
that "civil actions," mentioned in said paragraph, should be understood to mean, in
so far as testing the legality of taxes were concerned, only those of the kind and
character provided for in the two sections above mentioned. It is also urged that the
power to restrain by injunction the collection of taxes or imposts is conferred upon
Courts of First Instance by paragraph 7 of section 56, supra. This paragraph does
empower those courts to grant injunctions, both preliminary and final, in any civil
action pending in their districts, provided always, that the complaint shows facts
entitling the plaintiff to the relief demanded. Injunction suits, such as the one at bar,
are "civil actions," but of a special or extraordinary character. It cannot be said that
the Commission intended to give a broader or different meaning to the word
"action," used in Chapter 9 of the Code of Civil Procedure in connection with
injunctions, than it gave to the same word found in paragraph 2 of section 56 of the
Organic Act. The Insular Government, in exercising the power conferred upon it by
the Congress of the United States, has declared that the citizens and residents of
this country shall pay certain specified taxes and imposts. The power to tax
necessarily carries with it the power to collect the taxes. This being true, the weight
of authority supports the proposition that the Government may fix the conditions
upon which it will consent to litigate the validity of its original taxes. (Tennessee vs.
Sneed, 96 U.S., 69.)
We must, therefore, conclude that paragraph 2 and 7 of section 56 of Act No. 136,
construed in the light of the prior and subsequent legislation to which we have
referred, and the legislative and judicial history of the same subject in the United
States with which the Commission was familiar, do not empower Courts of firs
Instance to interfere by injunction with the collection of the taxes in question in this
case.1awphil.net
If we are in error as to the scope of paragraph 2 and 7, supra, and the Commission
did intend to confer the power upon the courts to restrain the collection of taxes, it
does not necessarily follow that this power or jurisdiction has been taken away by
section 139 of Act No. 2339, for the reason that all agree that an injunction will not
issue in any case if there is an adequate remedy at law. The very nature of the writ
itself prevents its issuance under such circumstances. Legislation forbidding the
issuing of injunctions in such cases is unnecessary. So the only question to be here
determined is whether the remedy provided for in section 140 of Act No. 2339 is
adequate. If it is, the writs which form the basis of this appeal should not have been
issued. If this is the correct view, the authority to issue injunctions will not have
been taken away by section 139, but rendered inoperative only by reason of an
adequate remedy having been made available.
The legislative body of the Philippine Islands has declared from the beginning (Act
No. 82) that payment under protest and suit to recover is an adequate remedy to
test the legality of any tax or impost, and that this remedy is exclusive. Can we say
that the remedy is not adequate or that it is not exclusive, or both? The plaintiffs in
the case at bar are the first, in so far as we are aware, to question either the
adequacy or exclusiveness of this remedy. We will refer to a few cases in the United
States where statutes similar to sections 139 and 140 have been construed and
applied.
In May, 1874, one Bloomstein presented a petition to the circuit court sitting in
Nashville, Tennessee, stating that his real and personal property had been assessed
for state taxes in the year 1872 to the amount of $132.60; that he tendered to the
collector this amount in "funds receivable by law for such purposes;" and that the
collector refused to receive the same. He prayed for an alternative writ of
mandamus to compel the collector to receive the bills in payment for such taxes, or
to show cause to the contrary. To this petition the collector, in his answer, set up the
defense that the petitioner's suit was expressly prohibited by the Act of the General
Assembly of the State of Tennessee, passed in 1873. The petition was dismissed and
the relief prayed for refused. An appeal to the supreme court of the State resulted in
the affirmance of the judgment of the lower court. The case was then carried to the
Supreme Court of the United States (Tennessee vs. Sneed, 96 U. S., 69), where the
judgment was again affirmed.
The two sections of the Act of [March 21,] 1873, drawn in question in that cases,
read as follows:
1. That in all cases in which an officer, charged by law with the collection of
revenue due the State, shall institute any proceeding, or take any steps for the
collection of the same, alleged or claimed to be due by said officer from any citizen,
the party against whom the proceeding or step is taken shall, if he conceives the
same to be unjust or illegal, or against any statute or clause of the Constitution of
the State, pay the same under protest; and, upon his making said payment, the
officer or collector shall pay such revenue into the State Treasury, giving notice at
the time of payment to the Comptroller that the same was paid under protest; and
the party paying said revenue may, at any time within thirty days after making said
payment, and not longer thereafter, sue the said officer having collected said sum,
for the recovery thereof. And the same may be tried in any court having the
jurisdiction of the amount and parties; and, if it be determined that the same was
wrongfully collected, as not being due from said party to the State, for any reason
going to the merits of the same, then the court trying the case may certify of record
that the same was wrongfully paid and ought to be refunded; and thereupon the
Comptroller shall issue his warrant for the same, which shall be paid in preference to
other claims on the Treasury.
2. That there shall be no other remedy, in any case of the collection of
revenue, or attempt to collect revenue illegally, or attempt to collect revenue in
funds only receivable by said officer under the law, the same being other or different
funds than such as the tax payer may tender, or claim the right to pay, than that
above provided; and no writ for the prevention of the collection of any revenue
claimed, or to hinder or delay the collection of the same, shall in anywise issue,
either injunction, supersedeas, prohibition, or any other writ or process whatever;
but in all cases in which, for any reason, any person shall claim that the tax so
collected was wrongfully or illegally collected, the remedy for said party shall be as
above provided, and in no other manner."
In discussing the adequacy of the remedy provided by the Tennessee Legislature, as
above set forth, the Supreme Court of the United States, in the case just cited, said:
"This remedy is simple and effective. A suit at law to recover money unlawfully
exacted is as speedy, as easily tried, and less complicated than a proceeding by
mandamus. ... In revenue cases, whether arising upon its (United States) Internal
Revenue Laws or those providing for the collection of duties upon foreign imports, it
(United States) adopts the rule prescribed by the State of Tennessee. It requires the
contestant to pay the amount as fixed by the Government, and gives him power to
sue the collector, and in such suit to test the legality of the tax. There is nothing
illegal or even harsh in this. It is a wise and reasonable precaution for the security of
the Government."
Thomas C. Platt commenced an action in the Circuit Court of the United States for
the Eastern District of Tennessee to restrain the collection of a license tax from the
company which he represented. The defense was that sections 1 and 2 of the Act of
1873, supra, prohibited the bringing of that suit. This case also reached the Supreme
Court of the United States. (Shelton vs. Platt, 139 U. 591.) In speaking of the
inhibitory provisions of sections 1 and 2 of the Act of 1873, the court said: "This Act
has been sanctioned and applied by the Courts of Tennessee. (Nashville vs. Smith,
86 Tenn., 213; Louisville & N. R. Co. vs. State, 8 Heisk., 663, 804.) It is, as counsel
observe, similar to the Act of Congress forbidding suit for the purpose of restraining
the assessment or collection of taxes under the Internal Revenue Laws, in respect to
which this court held that the remedy by suit to recover back the tax after payment,
provided for by the Statute, was exclusive. (Snyder vs. Marks, of this character has
been called for by the embarrassments resulting from the improvident employment
of the writ of injunction in arresting the collection of the public revenue; and, even in
its absence, the strong arm of the court of chancery ought not to be interposed in
that direction except where resort to that court is grounded upon the settled
principles which govern its jurisdiction."
In Louisville & N.R. Co. vs. State (8 Heisk. [64 Tenn.], 663, 804), cited by the
Supreme Court of the United States in Shelton vs. Platt, supra, the court said: "It was
urged that this statute (sections 1 and 2 of the Act of 1873, supra) is
unconstitutional and void, as it deprives the citizen of the remedy by certiorari,
guaranteed by the organic law."
By the 10th section of the sixth article of the Constitution, [Tennessee] it is provided
that: "The judges or justices of inferior courts of law and equity shall have power in
all civil cases to issue writs of certiorari, to remove any cause, or the transcript of
the record thereof, from any inferior jurisdiction into such court of law, on sufficient
cause, supported by oath or affirmation."
The court held the act valid as not being in conflict with these provisions of the State
constitution.
In Eddy vs. The Township of Lee (73 Mich., 123), the complainants sought to enjoin
the collection of certain taxes for the year 1886. The defendants, in support of their
demurrer, insisted that the remedy by injunction had been taken away by section
107 of the Act of 1885, which section reads as follows: "No injunction shall issue to
stay proceedings for the assessment or collection of taxes under this Act."
It was claimed by the complainants that the above quoted provisions of the Act of
1885 were unconstitutional and void as being in conflict with article 6, sec. 8, of the
Constitution, which provides that: "The circuit courts shall have original jurisdiction
in all matters, civil and criminal, not excepted in this Constitution, and not prohibited
by law. ... They shall also have power to issue writs of habeas corpus, mandamus,
injunction, quo warranto, certiorari, and other writs necessary to carry into effect
their orders, judgments, and decrees."
Mr. Justice Champlin, speaking for the court, said: "I have no doubt that the
Legislature has the constitutional authority, where it has provided a plain, adequate,
and complete remedy at law to recover back taxes illegally assessed and collected,
to take away the remedy by injunction to restrain their collection."
Section 9 of the Philippine Bill reads in part as follows: "That the Supreme Court and
the Courts of First Instance of the Philippine Islands shall possess and exercise
jurisdiction as heretofore provided and such additional jurisdiction as shall hereafter
be prescribed by the Government of said Islands, subject to the power of said
Government to change the practice and method of procedure."
It will be seen that this section has not taken away from the Philippine Government
the power to change the practice and method of procedure. If sections 139 and 140,
considered together, and this must always be done, are nothing more than a mode
of procedure, then it would seem that the Legislature did not exceed its
constitutional authority in enacting them. Conceding for the moment that the duly
authorized procedure for the determination of the validity of any tax, impost, or
assessment was by injunction suits and that this method was available to aggrieved
taxpayers prior to the passage of Act No. 2339, may the Legislature change this
method of procedure? That the Legislature has the power to do this, there can be no
doubt, provided some other adequate remedy is substituted in lieu thereof. In
speaking of the modes of enforcing rights created by contracts, the Supreme Court
of the United States, in Tennessee vs. Sneed, supra, said: "The rule seems to be that
in modes of proceedings and of forms to enforce the contract the Legislature has the
control, and may enlarge, limit or alter them, provided that it does not deny a
remedy, or so embarrass it with conditions and restrictions as seriously to impair the
value of the right."
In that case the petitioner urged that the Acts of 1873 were laws impairing the
obligation of the contract contained in the charter of the Bank of Tennessee, which
contract was entered into with the State in 1838. It was claimed that this was done
by placing such impediments and obstructions in the way of its enforcement,
thereby so impairing the remedies as practically to render the obligation of no value.
In disposing of this contention, the court said: "If we assume that prior to 1873 the
relator had authority to prosecute his claim against the State by mandamus, and
that by the statutes of that year the further use of that form was prohibited to him,
the question remains. whether an effectual remedy was left to him or provided for
him. We think the regulation of the statute gave him an abundant means of
enforcing such right as he possessed. It provided that he might pay his claim to the
collector under protest, giving notice thereof to the Comptroller of the Treasury; that
at any time within thirty days thereafter he might sue the officer making the
collection; that the case should be tried by any court having jurisdiction and, if found
in favor of the plaintiff on the merits, the court should certify that the same was
wrongfully paid and ought to be refunded and the Comptroller should thereupon
issue his warrant therefor, which should be paid in preference to other claim on the
Treasury."
But great stress is laid upon the fact that the plaintiffs in the case under
consideration are unable to pay the taxes assessed against them and that if the law
is enforced, they will be compelled to suspend business. This point may be best
answered by quoting from the case of Youngblood vs. Sexton (32 Mich., 406),
wherein Judge Cooley, speaking for the court, said: "But if this consideration is
sufficient to justify the transfer of a controversy from a court of law to a court of
equity, then every controversy where money is demanded may be made the subject
of equitable cognizance. To enforce against a dealer a promissory note may in some
cases as effectually break up his business as to collect from him a tax of equal
amount. This is not what is known to the law as irreparable injury. The courts have
never recognized the consequences of the mere enforcement of a money demand
as falling within that category."
Certain specified sections of Act No. 2339 were amended by Act No. 2432, enacted
December 23, 1914, effective January 1, 1915, by imposing increased and additional
taxes. Act No. 2432 was amended, were ratified by the Congress of the United
States on March 4, 1915. The opposition manifested against the taxes imposed by
Acts Nos. 2339 and 2432 is a matter of local history. A great many business men
thought the taxes thus imposed were too high. If the collection of the new taxes on
signs, signboards, and billboards may be restrained, we see no well-founded reason
why injunctions cannot be granted restraining the collection of all or at least a
number of the other increased taxes. The fact that this may be done, shows the
wisdom of the Legislature in denying the use of the writ of injunction to restrain the
collection of any tax imposed by the Acts. When this was done, an equitable remedy
was made available to all dissatisfied taxpayers.
The question now arises whether, the case being one of which the court below had
no jurisdiction, this court, on appeal, shall proceed to express an opinion upon the
validity of provisions of subsection (b) of section 100 of Act No. 2339, imposing the
taxes complained of. As a general rule, an opinion on the merits of a controversy
ought to be declined when the court is powerless to give the relief demanded. But it
is claimed that this case is, in many particulars, exceptional. It is true that it has
been argued on the merits, and there is no reason for any suggestion or suspicion
that it is not a bona fide controversy. The legal points involved in the merits have
been presented with force, clearness, and great ability by the learned counsel of
both sides. If the law assailed were still in force, we would feel that an opinion on its
validity would be justifiable, but, as the amendment became effective on January 1,
1915, we think it advisable to proceed no further with this branch of the case.
The next question arises in connection with the supplementary complaint, the object
of which is to enjoin the Collector of Internal Revenue from removing certain
billboards, the property of the plaintiffs located upon private lands in the Province of
Rizal. The plaintiffs allege that the billboards here in question "in no sense constitute
a nuisance and are not deleterious to the health, morals, or general welfare of the
community, or of any persons." The defendant denies these allegations in his
answer and claims that after due investigation made upon the complaints of the
British and German Consuls, he "decided that the billboard complained of was and
still is offensive to the sight, and is otherwise a nuisance." The plaintiffs proved by
Mr. Churchill that the "billboards were quite a distance from the road and that they
were strongly built, not dangerous to the safety of the people, and contained no
advertising matter which is filthy, indecent, or deleterious to the morals of the
community." The defendant presented no testimony upon this point. In the agreed
statement of facts submitted by the parties, the plaintiffs "admit that the billboards
mentioned were and still are offensive to the sight."
The pertinent provisions of subsection (b) of section 100 of Act No. 2339 read: "If
after due investigation the Collector of Internal Revenue shall decide that any sign,
signboard, or billboard displayed or exposed to public view is offensive to the sight
or is otherwise a nuisance, he may by summary order direct the removal of such
sign, signboard, or billboard, and if same is not removed within ten days after he has
issued such order he my himself cause its removal, and the sign, signboard, or
billboard shall thereupon be forfeited to the Government, and the owner thereof
charged with the expenses of the removal so effected. When the sign, signboard, or
billboard ordered to be removed as herein provided shall not comply with the
provisions of the general regulations of the Collector of Internal Revenue, no rebate
or refund shall be allowed for any portion of a year for which the tax may have been
paid. Otherwise, the Collector of Internal Revenue may in his discretion make a
proportionate refund of the tax for the portion of the year remaining for which the
taxes were paid. An appeal may be had from the order of the Collector of Internal
Revenue to the Secretary of Finance and Justice whose decision thereon shall be
final."
The Attorney-General, on behalf of the defendant, says: "The question which the
case presents under this head for determination, resolves itself into this inquiry: Is
the suppression of advertising signs displayed or exposed to public view, which are
admittedly offensive to the sight, conducive to the public interest?"
And cunsel for the plaintiffs states the question thus: "We contend that that portion
of section 100 of Act No. 2339, empowering the Collector of Internal Revenue to
remove billboards as nuisances, if objectionable to the sight, is unconstitutional, as
constituting a deprivation of property without due process of law."
From the position taken by counsel for both sides, it is clear that our inquiry is
limited to the question whether the enactment assailed by the plaintiffs was a
legitimate exercise of the police power of the Government; for all property is held
subject to that power.
As a consequence of the foregoing, all discussion and authorities cited, which go to
the power of the state to authorize administrative officers to find, as a fact, that
legitimate trades, callings, and businesses are, under certain circumstances,
statutory nuisances, and whether the procedure prescribed for this purpose is due
process of law, are foreign to the issue here presented.
There can be no doubt that the exercise of the police power of the Philippine
Government belongs to the Legislature and that this power is limited only by the
Acts of Congress and those fundamentals principles which lie at the foundation of all
republican forms of government. An Act of the Legislature which is obviously and
undoubtedly foreign to any of the purposes of the police power and interferes with
the ordinary enjoyment of property would, without doubt, be held to be invalid. But
where the Act is reasonably within a proper consideration of and care for the public
health, safety, or comfort, it should not be disturbed by the courts. The courts
cannot substitute their own views for what is proper in the premises for those of the
Legislature. In Munn vs. Illinois (94 U.S., 113), the United States Supreme Court
states the rule thus: "If no state of circumstances could exist to justify such statute,
then we may declare this one void because in excess of the legislative power of this
state; but if it could, we must presume it did. Of the propriety of legislative
interference, within the scope of the legislative power, a legislature is the exclusive
judge."
This rule very fully discussed and declared in Powell vs. Pennsylvania (127 U.S., 678)
"oleo-margarine" case. (See also Crowley vs. Christensen, 137 U.S., 86, 87;
Camfield vs. U.S., 167 U.S., 518.) While the state may interfere wherever the public
interests demand it, and in this particular a large discretion is necessarily vested in
the legislature to determine, not only what the interest of the public require, but
what measures are necessary for the protection of such interests; yet, its
determination in these matters is not final or conclusive, but is subject to the
supervision of the courts. (Lawton vs. Steele, 152 U.S., 133.) Can it be said judicially
that signs, signboards, and billboards, which are admittedly offensive to the sight,
are not with the category of things which interfere with the public safety, welfare,
and comfort, and therefore beyond the reach of the police power of the Philippine
Government?
The numerous attempts which have been made to limit by definition the scope of
the police power are only interesting as illustrating its rapid extension within
comparatively recent years to points heretofore deemed entirely within the field of
private liberty and property rights. Blackstone's definition of the police power was as
follows: "The due regulation and domestic order of the kingdom, whereby the
individuals of the state, like members of a well governed family, are bound to
conform their general behavior to the rules of propriety, good neigborhood, and
good manners, to be decent, industrious, and inoffensive in their respective
stations." (Commentaries, vol. 4, p. 162.)
Chanceller Kent considered the police power the authority of the state "to regulate
unwholesome trades, slaughter houses, operations offensive to the senses." Chief
Justice Shaw of Massachusetts defined it as follows: "The power vested in the
legislature by the constitution to make, ordain, and establish all manner of
wholesome and reasonable laws, statutes, and ordinances, either with penalties or
without, not repugnant to the constitution, as they shall judge to be for the good and
welfare of the commonwealth, and of the subjects of the same." (Com. vs. Alger, 7
Cush., 53.)
In the case of Butchers' Union Slaughter-house, etc. Co. vs. Crescent City Live Stock
Landing, etc. Co. (111 U.S., 746), it was suggested that the public health and public
morals are matters of legislative concern of which the legislature cannot divest itself.
(See State vs. Mountain Timber Co. [1913], 75 Wash., 581, where these definitions
are collated.)
In Champer vs. Greencastle (138 Ind., 339), it was said: "The police power of the
State, so far, has not received a full and complete definition. It may be said,
however, to be the right of the State, or state functionary, to prescribe regulations
for the good order, peace, health, protection, comfort, convenience and morals of
the community, which do not ... violate any of the provisions of the organic law."
(Quoted with approval in Hopkins vs. Richmond [Va., 1915], 86 S.E., 139.)
In Com. vs. Plymouth Coal Co. ([1911] 232 Pa., 141), it was said: "The police power
of the state is difficult of definition, but it has been held by the courts to be the right
to prescribe regulations for the good order, peace, health, protection, comfort,
convenience and morals of the community, which does not encroach on a like power
vested in congress or state legislatures by the federal constitution, or does not
violate the provisions of the organic law; and it has been expressly held that the
fourteenth amendment to the federal constitution was not designed to interfere with
the exercise of that power by the state."
In People vs. Brazee ([Mich., 1914], 149 N.W., 1053), it was said: "It [the police
power] has for its object the improvement of social and economic conditioned
affecting the community at large and collectively with a view to bring about "he
greatest good of the greatest number."Courts have consistently and wisely declined
to set any fixed limitations upon subjects calling for the exercise of this power. It is
elastic and is exercised from time to time as varying social conditions demand
correction."
In 8 Cyc., 863, it is said: "Police power is the name given to that inherent
sovereignty which it is the right and duty of the government or its agents to exercise
whenever public policy, in a broad sense, demands, for the benefit of society at
large, regulations to guard its morals, safety, health, order or to insure in any
respect such economic conditions as an advancing civilization of a high complex
character requires." (As quoted with approval in Stettler vs. O'Hara [1914], 69 Ore,
519.)
Finally, the Supreme Court of the United States has said in Noble State Bank vs.
Haskell (219 U.S. [1911], 575: "It may be said in a general way that the police power
extends to all the great public needs. It may be put forth in aid of what is sanctioned
by usage, or held by the prevailing morality or strong and preponderant opinion to
be greatly and immediately necessary to the public welfare."
This statement, recent as it is, has been quoted with approval by several courts.
(Cunningham vs. Northwestern Imp. Co. [1911], 44 Mont., 180; State vs. Mountain
Timber Co. [1913], 75 Wash., 581; McDavid vs. Bank of Bay Minette [Ala., 1915], 69
Sou., 452; Hopkins vs. City of Richmond [Va., 1915], 86 S.E., 139; State vs. Philipps
[Miss. 1915], 67 Sou., 651.)
It was said in Com. vs. Alger (7 Cush., 53, 85), per Shaw, C.J., that: "It is much easier
to perceive and realize the existence and sources of this police power than to mark
its boundaries, or to prescribe limits to its exercise." In Stone vs. Mississippi (101
U.S., 814), it was said: "Many attempts have been made in this court and elsewhere
to define the police power, but never with entire success. It is always easier to
determine whether a particular case comes within the general scope of the power,
than to give an abstract definition of the power itself, which will be in all respects
accurate."
Other courts have held the same vow of efforts to evolve a satisfactory definition of
the police power. Manifestly, definitions which fail to anticipate cases properly within
the scope of the police power are deficient. It is necessary, therefore, to confine our
discussion to the principle involved and determine whether the cases as they come
up are within that principle. The basic idea of civil polity in the United States is that
government should interfere with individual effort only to the extent necessary to
preserve a healthy social and economic condition of the country. State interference
with the use of private property may be exercised in three ways. First, through the
power of taxation, second, through the power of eminent domain, and third, through
the police power. Buy the first method it is assumed that the individual receives the
equivalent of the tax in the form of protection and benefit he receives from the
government as such. By the second method he receives the market value of the
property taken from him. But under the third method the benefits he derived are
only such as may arise from the maintenance of a healthy economic standard of
society and is often referred to as damnum absque injuria. (Com. vs. Plymouth Coal
Co. 232 Pa., 141; Bemis vs. Guirl Drainage Co., 182 Ind., 36.) There was a time when
state interference with the use of private property under the guise of the police
power was practically confined to the suppression of common nuisances. At the
present day, however, industry is organized along lines which make it possible for
large combinations of capital to profit at the expense of the socio-economic progress
of the nation by controlling prices and dictating to industrial workers wages and
conditions of labor. Not only this but the universal use of mechanical contrivances by
producers and common carriers has enormously increased the toll of human life and
limb in the production and distribution of consumption goods. To the extent that
these businesses affect not only the public health, safety, and morals, but also the
general social and economic life of the nation, it has been and will continue to be
necessary for the state to interfere by regulation. By so doing, it is true that the
enjoyment of private property is interfered with in no small degree and in ways that
would have been considered entirely unnecessary in years gone by. The regulation
of rates charged by common carriers, for instance, or the limitation of hours of work
in industrial establishments have only a very indirect bearing upon the public health,
safety, and morals, but do bear directly upon social and economic conditions. To
permit each individual unit of society to feel that his industry will bring a fair return;
to see that his work shall be done under conditions that will not either immediately
or eventually ruin his health; to prevent the artificial inflation of prices of the things
which are necessary for his physical well being are matters which the individual is no
longer capable of attending to himself. It is within the province of the police power to
render assistance to the people to the extent that may be necessary to safeguard
these rights. Hence, laws providing for the regulation of wages and hours of labor of
coal miners (Rail & River Coal Co. vs. Taylor, 234 U.S., 224); requiring payment of
employees of railroads and other industrial concerns in legal tender and requiring
salaries to be paid semimonthly (Erie R.R. Co. vs. Williams, 233 U.S., 685); providing
a maximum number of hours of labor for women (Miller vs. Wilson, U.S. Sup. Ct.
[Feb. 23, 1915], Adv. Opns., p. 342); prohibiting child labor (Sturges & Burn vs.
Beauchamp, 231 U.S., 320); restricting the hours of labor in public laundries (In re
Wong Wing, 167 Cal., 109); limiting hours of labor in industrial establishment
generally (State vs. Bunting, 71 Ore., 259); Sunday Closing Laws (State vs. Nicholls
[Ore., 1915], 151 Pac., 473; People vs. C. Klinck Packing Co. [N.Y., 1915], 108 N. E.,
278; Hiller vs. State [Md., 1914], 92 Atl., 842; State vs. Penny, 42 Mont., 118; City of
Springfield vs. Richter, 257 Ill., 578, 580; State vs. Hondros [S.C., 1915], 84 S.E.,
781); have all been upheld as a valid exercise of the police power. Again, workmen's
compensation laws have been quite generally upheld. These statutes discard the
common law theory that employers are not liable for industrial accidents and make
them responsible for all accidents resulting from trade risks, it being considered that
such accidents are a legitimate charge against production and that the employer by
controlling the prices of his product may shift the burden to the community. Laws
requiring state banks to join in establishing a depositors' guarantee fund have also
been upheld by the Federal Supreme Court in Noble State Bank vs. Haskell (219 U.
S., 104), and Assaria State Bank vs. Dolley (219 U.S., 121).
Offensive noises and smells have been for a long time considered susceptible of
suppression in thickly populated districts. Barring livery stables from such locations
was approved of in Reinman vs. Little Rock (U.S. Sup. Ct. [Apr. 5, 1915], U.S. Adv.
Opns., p. 511). And a municipal ordinance was recently upheld (People vs. Ericsson,
263 Ill., 368), which prohibited the location of garages within two hundred feet of
any hospital, church, or school, or in any block used exclusively for residential
purposes, unless the consent of the majority of the property owners be obtained.
Such statutes as these are usually upheld on the theory of safeguarding the public
health. But we apprehend that in point of fact they have little bearing upon the
health of the normal person, but a great deal to do with his physical comfort and
convenience and not a little to do with his peace of mind. Without entering into the
realm of psychology, we think it quite demonstrable that sight is as valuable to a
human being as any of his other senses, and that the proper ministration to this
sense conduces as much to his contentment as the care bestowed upon the senses
of hearing or smell, and probably as much as both together. Objects may be
offensive to the eye as well as to the nose or ear. Man's esthetic feelings are
constantly being appealed to through his sense of sight. Large investments have
been made in theaters and other forms of amusement, in paintings and spectacular
displays, the success of which depends in great part upon the appeal made through
the sense of sight. Moving picture shows could not possible without the sense of
sight. Governments have spent millions on parks and boulevards and other forms of
civic beauty, the first aim of which is to appeal to the sense of sight. Why, then,
should the Government not interpose to protect from annoyance this most valuable
of man's senses as readily as to protect him from offensive noises and smells?
The advertising industry is a legitimate one. It is at the same time a cause and an
effect of the great industrial age through which the world is now passing. Millions are
spent each year in this manner to guide the consumer to the articles which he
needs. The sense of sight is the primary essential to advertising success. Billboard
advertising, as it is now conducted, is a comparatively recent form of advertising. It
is conducted out of doors and along the arteries of travel, and compels attention by
the strategic locations of the boards, which obstruct the range of vision at points
where travelers are most likely to direct their eyes. Beautiful landscapes are marred
or may not be seen at all by the traveler because of the gaudy array of posters
announcing a particular kind of breakfast food, or underwear, the coming of a circus,
an incomparable soap, nostrums or medicines for the curing of all the ills to which
the flesh is heir, etc. It is quite natural for people to protest against this
indiscriminate and wholesale use of the landscape by advertisers and the intrusion
of tradesmen upon their hours of leisure and relaxation from work. Outdoor life must
lose much of its charm and pleasure if this form of advertising is permitted to
continue unhampered until it converts the streets and highways into veritable
canyons through which the world must travel in going to work or in search of
outdoor pleasure.
The success of billboard advertising depends not so much upon the use of private
property as it does upon the use of the channels of travel used by the general
public. Suppose that the owner of private property, who so vigorously objects to the
restriction of this form of advertising, should require the advertiser to paste his
posters upon the billboards so that they would face the interior of the property
instead of the exterior. Billboard advertising would die a natural death if this were
done, and its real dependency not upon the unrestricted use of private property but
upon the unrestricted use of the public highways is at once apparent. Ostensibly
located on private property, the real and sole value of the billboard is its proximity to
the public thoroughfares. Hence, we conceive that the regulation of billboards and
their restriction is not so much a regulation of private property as it is a regulation of
the use of the streets and other public thoroughfares.
We would not be understood as saying that billboard advertising is not a legitimate
business any more than we would say that a livery stable or an automobile garage is
not. Even a billboard is more sightly than piles of rubbish or an open sewer. But all
these businesses are offensive to the senses under certain conditions.
It has been urged against ministering to the sense of sight that tastes are so
diversified that there is no safe standard of legislation in this direction. We answer in
the language of the Supreme Court in Noble State Bank vs. Haskell (219 U.S., 104),
and which has already been adopted by several state courts (see supra), that "the
prevailing morality or strong and preponderating opinion" demands such legislation.
The agitation against the unrestrained development of the billboard business has
produced results in nearly all the countries of Europe. (Ency. Britannica, vol. 1, pp.
237-240.) Many drastic ordinances and state laws have been passed in the United
States seeking to make the business amenable to regulation. But their regulation in
the United states is hampered by what we conceive an unwarranted restriction upon
the scope of the police power by the courts. If the police power may be exercised to
encourage a healthy social and economic condition in the country, and if the comfort
and convenience of the people are included within those subjects, everything which
encroaches upon such territory is amenable to the police power. A source of
annoyance and irritation to the public does not minister to the comfort and
convenience of the public. And we are of the opinion that the prevailing sentiment is
manifestly against the erection of billboards which are offensive to the sight.
We do not consider that we are in conflict with the decision in Eubank vs. Richmond
(226 U.S., 137), where a municipal ordinance establishing a building line to which
property owners must conform was held unconstitutional. As we have pointed out,
billboard advertising is not so much a use of private property as it is a use of the
public thoroughfares. It derives its value to the power solely because the posters are
exposed to the public gaze. It may well be that the state may not require private
property owners to conform to a building line, but may prescribe the conditions
under which they shall make use of the adjoining streets and highways. Nor is the
law in question to be held invalid as denying equal protection of the laws. In Keokee
Coke Co. vs. Taylor (234 U.S., 224), it was said: "It is more pressed that the act
discriminates unconstitutionally against certain classes. But while there are
differences of opinion as to the degree and kind of discrimination permitted by the
Fourteenth Amendment, it is established by repeated decisions that a statute aimed
at what is deemed an evil, and hitting it presumably where experience shows it to
be most felt, is not to be upset by thinking up and enumerating other instances to
which it might have been applied equally well, so far as the court can see. That is for
the legislature to judge unless the case is very clear."
But we have not overlooked the fact that we are not in harmony with the highest
courts of a number of the states in the American Union upon this point. Those courts
being of the opinion that statutes which are prompted and inspired by esthetic
considerations merely, having for their sole purpose the promotion and gratification
of the esthetic sense, and not the promotion or protection of the public safety, the
public peace and good order of society, must be held invalid and contrary to
constitutional provisions holding inviolate the rights of private property. Or, in other
words, the police power cannot interfere with private property rights for purely
esthetic purposes. The courts, taking this view, rest their decisions upon the
proposition that the esthetic sense is disassociated entirely from any relation to the
public health, morals, comfort, or general welfare and is, therefore, beyond the
police power of the state. But we are of the opinion, as above indicated, that
unsightly advertisements or signs, signboards, or billboards which are offensive to
the sight, are not disassociated from the general welfare of the public. This is not
establishing a new principle, but carrying a well recognized principle to further
application. (Fruend on Police Power, p. 166.)
For the foregoing reasons the judgment appealed from is hereby reversed and the
action dismissed upon the merits, with costs. So ordered.
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
xxx xxx xxx
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
xxx xxx xxx
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.
xxx xxx xxx
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.
G.R. No. L-14078 March 7, 1919
RUBI, ET AL. (manguianes), plaintiffs,
vs.THE PROVINCIAL BOARD OF MINDORO, defendant.
D. R. Williams & Filemon Sotto for plaintiff.
Office of the Solicitor-General Paredes for defendant.
MALCOLM, J.:
In one of the cases which denote a landmark in American Constitutional History
(Worcester vs. Georgia [1832], 6 Pet., 515), Chief Justice Marshall, the first luminary
of American jurisprudence, began his opinion (relating to the status of an Indian)
with words which, with a slight change in phraseology, can be made to introduce the
present opinion This cause, in every point of view in which it can be placed, is of
the deepest interest. The legislative power of state, the controlling power of the
constitution and laws, the rights if they have any, the political existence of a people,
the personal liberty of a citizen, are all involved in the subject now to be considered.
To imitate still further the opinion of the Chief Justice, we adopt his outline and
proceed first, to introduce the facts and the issues, next to give a history of the so
called "non-Christians," next to compare the status of the "non-Christians" with that
of the American Indians, and, lastly, to resolve the constitutional questions
presented.
I. INTRODUCTION.
This is an application for habeas corpus in favor of Rubi and other Manguianes of the
Province of Mindoro. It is alleged that the Maguianes are being illegally deprived of
their liberty by the provincial officials of that province. Rubi and his companions are
said to be held on the reservation established at Tigbao, Mindoro, against their will,
and one Dabalos is said to be held under the custody of the provincial sheriff in the
prison at Calapan for having run away form the reservation.
The return of the Solicitor-General alleges:
1. That on February 1, 1917, the provincial board of Mindoro adopted
resolution No. 25 which is as follows:
The provincial governor, Hon. Juan Morente, Jr., presented the following resolution:
"Whereas several attempts and schemes have been made for the advancement of
the non-Christian people of Mindoro, which were all a failure,
"Whereas it has been found out and proved that unless some other measure is taken
for the Mangyan work of this province, no successful result will be obtained toward
educating these people.
"Whereas it is deemed necessary to obliged them to live in one place in order to
make a permanent settlement,
"Whereas the provincial governor of any province in which non-Christian inhabitants
are found is authorized, when such a course is deemed necessary in the interest of
law and order, to direct such inhabitants to take up their habitation on sites on
unoccupied public lands to be selected by him and approved by the provincial board.
"Whereas the provincial governor is of the opinion that the sitio of Tigbao on Lake
Naujan is a place most convenient for the Mangyanes to live on, Now, therefore be it
"Resolved, that under section 2077 of the Administrative Code, 800 hectares of
public land in the sitio of Tigbao on Naujan Lake be selected as a site for the
permanent settlement of Mangyanes in Mindoro subject to the approval of the
Honorable Secretary of the Interior, and
"Resolved further, That Mangyans may only solicit homesteads on this reservation
providing that said homestead applications are previously recommended by the
provincial governor."
2. That said resolution No. 25 (series 1917) of the provincial board of Mindoro
was approved by the Secretary of the Interior of February 21, 1917.
3. That on December 4, 1917, the provincial governor of Mindoro issued
executive order No. 2 which says:
"Whereas the provincial board, by Resolution No. 25, current series, has selected a
site in the sitio of Tigbao on Naujan Lake for the permanent settlement of
Mangyanes in Mindoro.
"Whereas said resolution has been duly approve by the Honorable, the Secretary of
the Interior, on February 21, 1917.
"Now, therefore, I, Juan Morente, jr., provincial governor of Mindoro, pursuant to the
provisions of section 2145 of the revised Administrative Code, do hereby direct that
all the Mangyans in the townships of Naujan and Pola and the Mangyans east of the
Baco River including those in the districts of Dulangan and Rubi's place in Calapan,
to take up their habitation on the site of Tigbao, Naujan Lake, not later than
December 31, 1917.
"Any Mangyan who shall refuse to comply with this order shall upon conviction be
imprisoned not exceed in sixty days, in accordance with section 2759 of the revised
Administrative Code."
4. That the resolution of the provincial board of Mindoro copied in paragraph 1
and the executive order of the governor of the same province copied in paragraph 3,
were necessary measures for the protection of the Mangyanes of Mindoro as well as
the protection of public forests in which they roam, and to introduce civilized
customs among them.
5. That Rubi and those living in his rancheria have not fixed their dwelling
within the reservation of Tigbao and are liable to be punished in accordance with
section 2759 of Act No. 2711.
6. That the undersigned has not information that Doroteo Dabalos is being
detained by the sheriff of Mindoro but if he is so detained it must be by virtue of the
provisions of articles Nos. 2145 and 2759 of Act No. 2711.
It thus appears that the provincial governor of Mindoro and the provincial board
thereof directed the Manguianes in question to take up their habitation in Tigbao, a
site on the shore of Lake Naujan, selected by the provincial governor and approved
by the provincial board. The action was taken in accordance with section 2145 of the
Administrative Code of 1917, and was duly approved by the Secretary of the Interior
as required by said action. Petitioners, however, challenge the validity of this section
of the Administrative Code. This, therefore, becomes the paramount question which
the court is called upon the decide.

Section 2145 of the Administrative Code of 1917 reads as follows:
SEC. 2145. Establishment of non-Christina upon sites selected by provincial
governor. With the prior approval of the Department Head, the provincial governor
of any province in which non-Christian inhabitants are found is authorized, when
such a course is deemed necessary in the interest of law and order, to direct such
inhabitants to take up their habitation on sites on unoccupied public lands to be
selected by him an approved by the provincial board.
In connection with the above-quoted provisions, there should be noted section 2759
of the same Code, which read as follows:
SEC. 2759. Refusal of a non-Christian to take up appointed habitation. Any
non-Christian who shall refuse to comply with the directions lawfully given by a
provincial governor, pursuant to section two thousand one hundred and forty-five of
this Code, to take up habitation upon a site designated by said governor shall upon
conviction be imprisonment for a period not exceeding sixty days.
The substance of what is now found in said section 2145 is not new to Philippine law.
The genealogical tree of this section, if we may be permitted to use such
terminology, would read: Section 2077, Administrative Code of 1916; section 62, Act
No. 1397; section 2 of various special provincial laws, notably of Act No. 547,
specifically relating to the Manguianes; section 69, Act No. 387.
Section 2145 and its antecedent laws make use of the term "non-Christians." This
word, as will later be disclosed, is also found in varying forms in other laws of the
Philippine Islands. In order to put the phrase in its proper category, and in order to
understand the policy of the Government of the Philippine Islands with reference to
the uncivilized elements of the Islands, it is well first of all to set down a skeleton
history of the attitude assumed by the authorities towards these "non-Christians,"
with particular regard for the legislation on the subject.
II. HISTORY.
A. BEFORE ACQUISITION OF THE PHILIPPINE BY THE UNITED STATES.
The most important of the laws of the Indies having reference to the subject at hand
are compiled in Book VI, Title III, in the following language.
LAW I.
The Emperor Charles and the Prince, the governor, at Cigales, on March 21, 1551.
Philip II at Toledo, on February 19, 1560. In the forest of Segovia on September 13,
1565. In the Escorial on November 10, 1568. Ordinance 149 of the poblaciones of
1573. In San Lorenzo, on May 20, 1578,
THAT THE "INDIOS" BE REDUCED INTO "POBLACIONES" COMMUNITIES).
In order that the indios may be instructed in the Sacred Catholic Faith and the
evangelical law, and in order that they may forget the blunders of their ancient rites
and ceremonies to the end that they may live in harmony and in a civilized manner,
it has always been endeavored, with great care and special attention, to use all the
means most convenient to the attainment of these purposes. To carry out this work
with success, our Council of the Indies and other religious persons met at various
times; the prelates of new Spain assembled by order of Emperor Charles V of
glorious memory in the year one thousand five hundred and forty-six all of which
meetings were actuated with a desire to serve God an our Kingdom. At these
meetings it was resolved that indios be made to live in communities, and not to live
in places divided and separated from one another by sierras and mountains, wherein
they are deprived of all spiritual and temporal benefits and wherein they cannot
profit from the aid of our ministers and from that which gives rise to those human
necessities which men are obliged to give one another. Having realized that
convenience of this resolution, our kings, our predecessors, by different orders, have
entrusted and ordered the viceroys, presidents, and governors to execute with great
care and moderation the concentration of the indios into reducciones; and to deal
with their doctrine with such forbearance and gentleness, without causing
inconveniences, so that those who would not presently settle and who would see the
good treatment and the protection of those already in settlements would, of their
own accord, present themselves, and it is ordained that they be not required to pay
taxes more than what is ordered. Because the above has been executed in the
greater part of our Indies, we hereby order and decree that the same be complied
with in all the remaining parts of the Indies, and the encomederos shall entreat
compliance thereof in the manner and form prescribed by the laws of this title.
xxx xxx xxx
LAW VIII.
Philip II at the Pardo, on December 1, 1573. Philip III at Madrid, October 10, 1618.
THE "REDUCCTIONES" BE MADE IN ACCORDANCE WITH THE CONDITIONS OF THIS
LAW.
The places wherein the pueblos and reducciones shall be formed should have the
facilities of waters. lands, and mountains, ingress and egress, husbandry and
passageway of one league long, wherein the indios can have their live stock that
they may not be mixed with those of the Spaniards.
LAW IX.
Philip II at Toledo, on February 19, 1956.
THAT THE "INDIOS" IN "REDUCCIONES" BE NOT DEPRIVED OF THE LANDS
PREVIOUSLY HELD BY THEM.
With more good-will and promptness, the indios shall be concentrated in
reducciones. Provided they shall not be deprived of the lands and granaries which
they may have in the places left by them. We hereby order that no change shall be
made in this respect, and that they be allowed to retain the lands held by them
previously so that they may cultivate them and profit therefrom.
xxx xxx xxx
LAW XIII.
THE SAME AS ABOVE.
THAT THE "REDUCCIONES" BE NOT REMOVED WITHOUT ORDER OF THE KING,
VICEROY, OR COURT.
No governor, or magistrate, or alcalde mayor, or any other court, has the right to
alter or to remove the pueblos or the reducciones once constituted and founded,
without our express order or that of the viceroy, president, or the royal district court,
provided, however, that the encomenderos, priests, or indios request such a change
or consent to it by offering or giving information to that en. And, because these
claims are often made for private interests and not for those of the indios, we hereby
order that this law be always complied with, otherwise the change will be considered
fraudulently obtained. The penalty of one thousand pesos shall be imposed upon the
judge or encomendero who should violate this law.
LAW XV.
Philip III at Madrid, on October 10, 1618.
THAT THERE BE MAYORS AND ALDERMEN IN THE "REDUCTIONES," WHO SHALL BE
"INDIOS."
We order that in each town and reduccion there be a mayor, who should be an indio
of the same reduccion; if there be more than eighty houses, there should be two
mayors and two aldermen, also indios; and, even if the town be a big one, there
should, nevertheless, be more than two mayors and four aldermen, If there be less
than eighty indios but not less than forty, there should be not more than one mayor
and one alderman, who should annually elect nine others, in the presence of the
priests , as is the practice in town inhabited by Spaniards and indios. LAW XXI.
Philip II, in Madrid, On May 2, 1563, and on November 25, 1578. At Tomar, on May 8,
1581. At Madrid, on January 10, 1589. Philip III, at Todesillas, on July 12, 1600. Philip
IV, at Madrid, on October 1 and December 17, 1646. For this law and the one
following, see Law I, Tit. 4, Book 7.
THAT IN THE TOWNS OF THE "INDIOS," THERE SHALL LIVE NO SPANIARDS,
NEGROES, "MESTIZOS," AND MULATTOES.
We hereby prohibit and forbid Spaniards, negroes, mulattores, or mestizos to live to
live in the reducciones and towns and towns of the indios, because it has been found
that some Spaniards who deal, trade, live, and associate with the indios are men of
troublesome nature, of dirty ways of living; robbers, gamblers, and vicious and
useless men; and, to avoid the wrongs done them, the indios would leave their
towns and provinces; and the negroes, mestizos, and mulattoes, besides maltreating
them and utilizing their services, contaminate them with their bad customs,
idleness, and also some of their blunders and vices which may corrupt and pervert
the goal which we desire to reach with regard to their salvation, increase, and
tranquillity. We hereby order the imposition of grave penalties upon the commission
of the acts above-mentioned which should not be tolerated in the towns, and that
the viceroys, presidents, governors, and courts take great care in executing the law
within their powers and avail themselves of the cooperation of the ministers who are
truly honest. As regards the mestizos and Indian and Chinese half-breeds
(zambaigos), who are children of indias and born among them, and who are to
inherit their houses and haciendas, they all not be affected by this law, it appearing
to be a harsh thing to separate them from their parents. (Law of the Indies, vol. 2,
pp. 228, 229, 230, 231.)
A clear exposition of the purposes of the Spanish government, in its efforts to
improve the condition of the less advanced inhabitants of the Islands by
concentrating them in "reducciones," is found in the Decree of the Governor-General
of the Philippine Islands of January 14, 1881, reading as follows:
It is a legal principle as well as a national right that every inhabitant of a territory
recognized as an integral part of a nation should respect and obey the laws in force
therein; while, on other hand, it is the duty to conscience and to humanity for all
governments to civilize those backward races that might exist in the nation, and
which living in the obscurity of ignorance, lack of all the nations which enable them
to grasp the moral and material advantages that may be acquired in those towns
under the protection and vigilance afforded them by the same laws.
It is equally highly depressive to our national honor to tolerate any longer the
separation and isolation of the non-Christian races from the social life of the civilized
and Christian towns; to allow any longer the commission of depredations, precisely
in the Island of Luzon wherein is located the seat of the representative of the
Government of the, metropolis.
It is but just to admit the fact that all the governments have occupied themselves
with this most important question, and that much has been heretofore accomplished
with the help and self-denial of the missionary fathers who have even sacrificed their
lives to the end that those degenerate races might be brought to the principles of
Christianity, but the means and the preaching employed to allure them have been
insufficient to complete the work undertaken. Neither have the punishments
imposed been sufficient in certain cases and in those which have not been guarded
against, thus giving and customs of isolation.
As it is impossible to consent to the continuation of such a lamentable state of
things, taking into account the prestige which the country demands and the
inevitable duty which every government has in enforcing respect and obedience to
the national laws on the part of all who reside within the territory under its control, I
have proceeded in the premises by giving the most careful study of this serious
question which involves important interests for civilization, from the moral and
material as well as the political standpoints. After hearing the illustrious opinions of
all the local authorities, ecclesiastics, and missionaries of the provinces of Northern
Luzon, and also after finding the unanimous conformity of the meeting held with the
Archbishop of Manila, the Bishops of Jaro and Cebu, and the provincial prelates of
the orders of the Dominicans, Agustinians, Recoletos, Franciscans, and Jesuits as
also of the meeting of the Council of Authorities, held for the object so indicated, I
have arrived at an intimate conviction of the inevitable necessity of proceeding in a
practical manner for the submission of the said pagan and isolated races, as well as
of the manner and the only form of accomplishing such a task.
For the reasons above stated and for the purpose of carrying out these objects, I
hereby promulgate the following:
DECREE.
1. All the indian inhabitants (indios) of the Islands of Luzon are, from this date,
to be governed by the common law, save those exceptions prescribed in this decree
which are bases upon the differences of instructions, of the customs, and of the
necessities of the different pagan races which occupy a part of its territory.
2. The diverse rules which should be promulgated for each of these races
which may be divided into three classes; one, which comprises those which live
isolated and roaming about without forming a town nor a home; another, made up of
those subdued pagans who have not as yet entered completely the social life; and
the third, of those mountain and rebellious pagans shall be published in their
respective dialects, and the officials, priests, and missionaries of the provinces
wherein they are found are hereby entrusted in the work of having these races learn
these rules. These rules shall have executive character, beginning with the first day
of next April, and, as to their compliance, they must be observed in the manner
prescribed below.
3. The provincial authorities in conjunction with the priests shall proceed, from
now on, with all the means which their zeal may suggest to them, to the taking of
the census of the inhabitants of the towns or settlement already subdued, and shall
adopt the necessary regulations for the appointment of local authorities, if there be
none as yet; for the construction of courts and schools, and for the opening or fixing
up of means of communication, endeavoring, as regards the administrative
organization of the said towns or settlements, that this be finished before the first
day of next July, so that at the beginning of the fiscal year they shall have the same
rights and obligations which affect the remaining towns of the archipelago, with the
only exception that in the first two years they shall not be obliged to render personal
services other than those previously indicated.
4. So long as these subdued towns or settlements are located infertile lands
appropriate for cultivation, the inhabitants thereof shall not be obliged to move their
dwelling-houses; and only in case of absolute necessity shall a new residence be
fixed for them, choosing for this purpose the place most convenient for them and
which prejudices the least their interest; and, in either of these cases, an effort must
be made to establish their homes with the reach of the sound of the bell.
5. For the protection and defense of these new towns, there shall be
established an armed force composed precisely of native Christian, the organization
and service of which shall be determined in a regulations based upon that of the
abolished Tercios de Policia (division of the Guardia Civil).
6. The authorities shall see to it that the inhabitants of the new towns
understand all the rights and duties affecting them and the liberty which they have
as to where and now they shall till their lands and sell the products thereof, with the
only exception of the tobacco which shall be bought by the Hacienda at the same
price and conditions allowed other producers, and with the prohibition against these
new towns as well as the others from engaging in commerce of any other
transaction with the rebellious indios, the violation of which shall be punished with
deportation.
7. In order to properly carry out this express prohibition, the limits of the
territory of the rebellious indios shall be fixed; and whoever should go beyond the
said limits shall be detained and assigned governmentally wherever convenient.
8. For the purpose of assisting in the conversion of the pagans into the
fraternity of the Catholic Church, all by this fact along be exempt for eight years
from rendering personal labor.
9. The authorities shall offer in the name of the State to the races not
subdued (aetas and mountains igorrots the following advantages in returns for their
voluntary submission: to live in towns; unity among their families; concession of
good lands and the right to cultivate them in the manner they wish and in the way
them deem most productive; support during a year, and clothes upon effecting
submission; respect for their habits and customs in so far as the same are not
opposed to natural law; freedom to decide of their own accord as to whether they
want to be Christians or not; the establishment of missions and families of
recognized honesty who shall teach, direct, protect, and give them security and trust
them; the purchase or facility of the sale of their harvests; the exemption from
contributions and tributes for ten years and from the quintas (a kind of tax) for
twenty years; and lastly, that those who are governed by the local authorities as the
ones who elect such officials under the direct charge of the authorities of the
province or district.
10. The races indicated in the preceding article, who voluntarily admit the
advantages offered, shall, in return, have the obligation of constituting their new
towns, of constructing their town hall, schools, and country roads which place them
in communication with one another and with the Christians; provided, the location of
these towns be distant from their actual residences, when the latter do not have the
good conditions of location and cultivations, and provided further the putting of
families in a place so selected by them be authorized in the towns already
constituted.
11. The armed force shall proceed to the prosecution and punishment of the
tribes, that, disregarding the peace, protection, and advantages offered them,
continue in their rebellious attitude on the first of next April, committing from now
on the crimes and vexations against the Christian towns; and for the this purposes,
the Captain General's Office shall proceed with the organization of the divisions of
the Army which, in conjunction with the rural guards (cuadrilleros), shall have to
enter the territory of such tribes. On the expiration of the term, they shall destroy
their dwelling-houses, labors, and implements, and confiscate their products and
cattle. Such a punishment shall necessarily be repeated twice a year, and for this
purpose the military headquarters shall immediately order a detachment of the
military staff to study the zones where such operations shall take place and
everything conducive to the successful accomplishment of the same.
12. The chiefs of provinces, priests, and missioners, local authorities, and other
subordinates to my authorities, local authorities, and other subordinates to may
authority, civil as well as military authorities, shall give the most effective aid and
cooperation to the said forces in all that is within the attributes and the scope of the
authority of each.
13. With respect to the reduccion of the pagan races found in some of the
provinces in the southern part of the Archipelago, which I intend to visit, the
preceding provisions shall conveniently be applied to them.
14. There shall be created, under my presidency as Governor-General, Vice-
Royal Patron, a council or permanent commission which shall attend to and decide
all the questions relative to the application of the foregoing regulations that may be
brought to it for consultations by the chiefs of provinces and priests and
missionaries.
15. The secondary provisions which may be necessary, as a complement to the
foregoing, in brining about due compliance with this decree, shall be promulgated by
the respective official centers within their respective jurisdictions. (Gaceta de Manila,
No. 15) (Diccionario de la Administracion, vol. 7, pp. 128-134.)
B. AFTER ACQUISITON OF THE PHILIPPINES BY THE UNITED STATES.
Ever since the acquisition of the Philippine Islands by the United States, the question
as to the best method for dealing with the primitive inhabitants has been a
perplexing one.
1. Organic law.
The first order of an organic character after the inauguration of the American
Government in the Philippines was President McKinley's Instructions to the
Commission of April 7, 1900, later expressly approved and ratified by section 1 of
the Philippine Bill, the Act of Congress of July 1, 1902. Portions of these instructions
have remained undisturbed by subsequent congressional legislation. One paragraph
of particular interest should here be quoted, namely:
In dealing with the uncivilized tribes of the Islands, the Commission should adopt the
same course followed by Congress in permitting the tribes of our North American
Indians to maintain their tribal organization and government and under which many
of these tribes are now living in peace and contentment, surrounded by civilization
to which they are unable or unwilling to conform. Such tribal governments should,
however, be subjected to wise and firm regulation; and, without undue or petty
interference, constant and active effort should be exercised to prevent barbarous
practices and introduce civilized customs.
Next comes the Philippine Bill, the Act of Congress of July 1, 1902, in the nature of
an Organic Act for the Philippines. The purpose of section 7 of the Philippine Bill was
to provide for a legislative body and, with this end in view, to name the prerequisites
for the organization of the Philippine Assembly. The Philippine Legislature, composed
of the Philippine Commission and the Philippine Assembly, was to have jurisdiction
over the Christian portion of the Islands. The Philippine Commission was to retain
exclusive jurisdiction of that part of said Islands inhabited by Moros or other non-
Christian tribes.
The latest Act of Congress, nearest to a Constitution for the Philippines, is the Act of
Congress of August 29, 1916, commonly known as the Jones Law. This transferred
the exclusive legislative jurisdiction and authority theretofore exercised by the
Philippine Commission, to the Philippine Legislature (sec. 12). It divided the
Philippine Islands into twelve senatorial districts, the twelfth district to be composed
of the Mountain Province, Baguio, Nueva Vizcaya, and the Department of Mindanao
and Sulu. The Governor-General of the Philippine Islands was authorized to appoint
senators and representatives for the territory which, at the time of the passage of
the Jones Law, was not represented in the Philippine Assembly, that is, for the
twelfth district (sec. 16). The law establish a bureau to be known as the "Bureau of
non-Christian Tribes" which shall have general supervision over the public affairs of
the inhabitants which are represented in the Legislature by appointed senators and
representatives( sec. 22).
Philippine organic law may, therefore, be said to recognized a dividing line between
the territory not inhabited by Moros or other non-Christian tribes, and the territory
which Moros or other non-Christian tribes, and the territory which is inhabited by
Moros or other non-Christian tribes.
2. Statute law.
Local governments in the Philippines have been provided for by various acts of the
Philippine Commission and Legislature. The most notable are Acts Nos. 48 and 49
concerning the Province of Benguet and the Igorots; Act NO. 82, the Municipal
Code; ;Act no. 83, the Provincial Government Act; Act No. 183, the Character of the
city of Manila; Act No. 7887, providing for the organization and government of the
Moro Province; Act No. 1396, the Special Provincial Government Act; Act No. 1397,
the Township Government Act; Act No. 1667, relating to the organization of
settlements; Act No. 1963, the Baguio charger; and Act No. 2408, the Organic Act of
the Department of Mindanao and Sulu. The major portion of these laws have been
carried forward into the Administrative Codes of 1916 an d1917.
Of more particular interest are certain special laws concerning the government of
the primitive peoples. Beginning with Act No. 387, sections 68-71, enacted on April
9, 1902, by the United States Philippine Commission, having reference to the
Province of Nueva Vizcaya, Acts Nos. 4111, 422, 445, 500, 547, 548, 549, 550, 579,
753, 855, 1113, 1145, 4568, 1306 were enacted for the provinces of Abra, Antique,
Bataan, Ilocos Norte, Ilocos Sur, Isabela. Lepanto-Bontoc, Mindoro, Misamis, Nueva
Vizcaya, Pangasinan, Paragua (Palawan), Tarlac, Tayabas, and Zambales. As an
example of these laws, because referring to the Manguianes, we insert Act No. 547:
No. 547. AN ACT PROVIDING FOR THE ESTABLISHMENT OF LOCAL CIVIL
GOVERNMENTS FOR THE MANGUIANES IN THE PROVINCE OF MINDORO.
By authority of the United States, be it enacted by the Philippine Commission, that:
SECTION 1. Whereas the Manguianes of the Provinces of Mindoro have not
progressed sufficiently in civilization to make it practicable to bring them under any
form of municipal government, the provincial governor is authorized, subject to the
approval of the Secretary of the Interior, in dealing with these Manguianes to
appoint officers from among them, to fix their designations and badges of office, and
to prescribe their powers and duties: Provided, That the powers and duties thus
prescribed shall not be in excess of those conferred upon township officers by Act
Numbered Three hundred and eighty-seven entitled "An Act providing for the
establishment of local civil Governments in the townships and settlements of Nueva
Vizcaya."
SEC. 2. Subject to the approval of the Secretary of the Interior, the provincial
governor is further authorized, when he deems such a course necessary in the
interest of law and order, to direct such Manguianes to take up their habitation on
sites on unoccupied public lands to be selected by him and approved by the
provincial board. Manguianes who refuse to comply with such directions shall upon
conviction be imprisonment for a period not exceeding sixty days.
SEC. 3. The constant aim of the governor shall be to aid the Manguianes of his
province to acquire the knowledge and experience necessary for successful local
popular government, and his supervision and control over them shall be exercised to
this end, an to the end that law and order and individual freedom shall be
maintained.
SEC. 4. When in the opinion of the provincial board of Mindoro any settlement of
Manguianes has advanced sufficiently to make such a course practicable, it may be
organized under the provisions of sections one to sixty-seven, inclusive, of Act
Numbered three hundred and eighty-seven, as a township, and the geographical
limits of such township shall be fixed by the provincial board.
SEC. 5. The public good requiring the speedy enactment of this bill, the passage of
the same is hereby expedited in accordance with section two of 'An Act prescribing
the order of procedure by the Commission in the enactment of laws,' passed
September twenty-sixth, nineteen hundred.
SEC. 6. This Act shall take effect on its passage.
Enacted, December 4, 1902.
All of these special laws, with the exception of Act No. 1306, were repealed by Act
No. 1396 and 1397. The last named Act incorporated and embodied the provisions in
general language. In turn, Act No. 1397 was repealed by the Administrative Code of
1916. The two Administrative Codes retained the provisions in questions.
These different laws, if they of the non-Christian inhabitants of the Philippines and a
settled and consistent practice with reference to the methods to be followed for their
advancement.
C. TERMINOLOGY.
The terms made use of by these laws, organic and statutory, are found in varying
forms.
"Uncivilized tribes" is the denomination in President McKinley's instruction to the
Commission.
The most commonly accepted usage has sanctioned the term "non-Christian tribes."
These words are to be found in section 7 of the Philippine Bill and in section 22 of
the Jones Law. They are also to be found in Act No. 253 of the Philippines
Commission, establishing a Bureau of non-Christian Tribes and in Act No. 2674 of the
Philippine Legislature, carried forward into sections 701-705 of the Administrative
Code of 1917, reestablishing this Bureau. Among other laws which contain the
phrase, there can be mentioned Acts Nos. 127, 128, 387, 547, 548, 549, 550, 1397,
1639, and 2551.
"Non-Christian people," "non-Christian inhabitants," and "non-Christian Filipinos"
have been the favorite nomenclature, in lieu of the unpopular word "tribes," since
the coming into being of a Filipinized legislature. These terms can be found in
sections 2076, 2077, 2390, 2394, Administrative Code of 1916; sections 701-705,
2145, 2422, 2426, Administrative Code of 1917; and in Acts Nos. 2404, 2435, 2444,
2674 of the Philippine Legislatures, as well as in Act No. 1667 of the Philippine
Commission.
The Administrative Code specifically provides that the term "non-Christian" shall
include Mohammedans and pagans. (Sec. 2576, Administrative Code of 1917; sec.
2561, Administrative Code of 1916, taken from Act No. 2408, sec. 3.)
D. MEANING OF TERM "NON-CHRISTIAN."
If we were to follow the literal meaning of the word "non-Christian," it would of
course result in giving to it a religious signification. Obviously, Christian would be
those who profess the Christian religion, and non-Christians, would be those who do
not profess the Christian religion. In partial corroboration of this view, there could
also be cited section 2576 of the last Administrative Code and certain well-known
authorities, as Zuiga, "Estadismo de las Islas Filipinas," Professor Ferdinand
Blumentritt, "Philippine Tribes and Languages," and Dr. N. M. Saleeby, "The Origin of
Malayan Filipinos." (See Blair & Robertson, "The Philippine Islands," 1493-1898, vol.
III, p. 300, note; Craig-Benitez, "Philippine Progress prior to 1898," vol. I. p. 107.)
Not content with the apparent definition of the word, we shall investigate further to
ascertain what is its true meaning.
In one sense, the word can have a geographical signification. This is plainly to be
seen by the provisions of many laws. Thus, according to the Philippine Bill, the
authority of the Philippine Assembly was recognized in the "territory" of the Islands
not inhabited by Moros or other non-Christian tribes. Again, the Jones Law confers
similar recognition in the authorization of the twelfth senatorial district for the
"territory not now represented in the Philippine Assembly." The Philippines
Legislature has, time and again, adopted acts making certain other acts applicable
to that "part" of the Philippine Islands inhabited by Moros or other non-Christian
tribes.
Section 2145, is found in article XII of the Provincial Law of the Administrative Code.
The first section of this article, preceding section 2145, makes the provisions of the
article applicable only in specially organized provinces. The specially organized
provinces are the Mountain Province, Nueva Vizcaya, Mindoro, Batanes, and
Palawan. These are the provinces to which the Philippine Legislature has never seen
fit to give all the powers of local self-government. They do not, however, exactly
coincide with the portion of the Philippines which is not granted popular
representation. Nevertheless, it is still a geographical description.
It is well-known that within the specially organized provinces, there live persons
some of who are Christians and some of whom are not Christians. In fact, the law
specifically recognizes this. ( Sec. 2422, Administrative Code of 1917, etc.)
If the religious conception is not satisfactory, so against the geographical conception
is likewise inadquate. The reason it that the motive of the law relates not to a
particular people, because of their religion, or to a particular province because of its
location, but the whole intent of the law is predicated n the civilization or lack of
civilization of the inhabitants.
At most, "non-Christian" is an awkward and unsatisfactory word. Apologetic words
usually introduce the term. "The so-called non-Christian" is a favorite expression.
The Secretary of the Interior who for so many years had these people under his
jurisdiction, recognizing the difficulty of selecting an exact designation, speaks of
the "backward Philippine peoples, commonly known as the 'non-Christian tribes."'
(See Hearings before the Committee on the Philippines, United States Senate, Sixty-
third Congress, third session on H.R. 18459, An Act to declare the purpose of the
People of the United States as to the future political status of the Philippine Islands
and to provide a more autonomous government for the Islands, pp. 346, 351; letter
of the Secretary of the Interior of June 30, 1906, circulated by the Executive
Secretary.)
The idea that the term "non-Christian" is intended to relate to degree of civilization,
is substantiated by reference to legislative, judicial, and executive authority.
The legislative intent is borne out by Acts Nos. 48, 253, 387, 1667, and 2674, and
sections 701 et seq, and sections 2422 et seq, of the Administrative Code of 1917.
For instance, Act No. 253 charged the Bureau of non-Christian tribes to conduct
"systematic investigations with reference to non-Christian tribes . . . with special
view to determining the most practicable means for bringing about their
advancement in civilization and material property prosperity."
As authority of a judicial nature is the decision of the Supreme Court in the case of
United States vs. Tubban [Kalinga] ([1915], 29, Phil., 434). The question here arose
as to the effect of a tribal marriage in connection with article 423 of the Penal code
concerning the husband who surprises his wife in the act of adultery. In discussing
the point, the court makes use of the following language:
. . . we are not advised of any provision of law which recognizes as legal a tribal
marriage of so-called non-Christians or members of uncivilized tribes, celebrated
within that province without compliance with the requisites prescribed by General
Orders no. 68. . . . We hold also that the fact that the accused is shown to be a
member of an uncivilized tribe, of a low order of intelligence, uncultured and
uneducated, should be taken into consideration as a second marked extenuating
circumstance.
Of much more moment is the uniform construction of execution officials who have
been called upon to interpret and enforce the law. The official who, as a member of
the Philippine Commission, drafted much of the legislation relating to the so-called
Christians and who had these people under his authority, was the former Secretary
of the Interior. Under date of June 30, 1906, this official addressed a letter to all
governor of provinces, organized under the Special Provincial Government Act, a
letter which later received recognition by the Governor-General and was circulated
by the Executive Secretary, reading as follows:
Sir: Within the past few months, the question has arisen as to whether people who
were originally non-Christian but have recently been baptized or who are children of
persons who have been recently baptized are, for the purposes of Act 1396 and
1397, to be considered Christian or non-Christians.
It has been extremely difficult, in framing legislation for the tribes in these islands
which are not advanced far in civilization, to hit upon any suitable designation which
will fit all cases. The number of individual tribes is so great that it is almost out of
the question to enumerate all of them in an Act. It was finally decided to adopt the
designation 'non-Christians' as the one most satisfactory, but the real purpose of the
Commission was not so much to legislate for people having any particular religious
belief as for those lacking sufficient advancement so that they could, to their own
advantage, be brought under the Provincial Government Act and the Municipal Code.
The mere act of baptism does not, of course, in itself change the degree of
civilization to which the person baptized has attained at the time the act of baptism
is performed. For practical purposes, therefore, you will give the member of so-
called "wild tribes" of your province the benefit of the doubt even though they may
recently have embraced Christianity.
The determining factor in deciding whether they are to be allowed to remain under
the jurisdiction of regularly organized municipalities or what form of government
shall be afforded to them should be the degree of civilization to which they have
attained and you are requested to govern yourself accordingly.
I have discussed this matter with the Honorable, the Governor-General, who concurs
in the opinion above expressed and who will have the necessary instructions given
to the governors of the provinces organized under the Provincial Government Act.
(Internal Revenue Manual, p. 214.)
The present Secretary of the Interior, in a memorandum furnished a member of this
court, has the following to say on the subject:
As far as names are concerned the classification is indeed unfortunate, but while no
other better classification has as yet been made the present classification should be
allowed to stand . . . I believe the term carries the same meaning as the expressed
in the letter of the Secretary of the Interior (of June 30, 1906, herein quoted). It is
indicative of the degree of civilization rather than of religious denomination, for the
hold that it is indicative of religious denomination will make the law invalid as
against that Constitutional guaranty of religious freedom.
Another official who was concerned with the status of the non-Christians, was the
Collector of Internal Revenue. The question arose for ruling relatives to the cedula
taxation of the Manobos and the Aetas. Thereupon, the view of the Secretary of the
Interior was requested on the point, who, by return indorsement, agreed with the
interpretation of the Collector of Internal Revenue. This Construction of the Collector
of Internal Revenue can be found in circular letter No. 188 of the Bureau of Internal
Revenue, dated June 11, 1907, reading as follows (Internal Revenue Manual, p. 214):
The internal revenue law exempts "members of non-Christian tribes" from the
payment of cedula taxes. The Collector of Internal Revenue has interpreted this
provision of law to mean not that persons who profess some form of Christian
worship are alone subject to the cedula tax, and that all other person are exempt; he
has interpreted it to mean that all persons preserving tribal relations with the so-
called non-Christian tribes are exempt from the cedula tax, and that all others,
including Jews, Mohammedans, Confucians, Buddists, etc., are subject to said tax so
long as they live in cities or towns, or in the country in a civilized condition. In other
words, it is not so much a matter of a man's form of religious worship or profession
that decides whether or not he is subject to the cedula tax; it is more dependent on
whether he is living in a civilized manner or is associated with the mountain tribes,
either as a member thereof or as a recruit. So far, this question has not come up as
to whether a Christian, maintaining his religious belief, but throwing his lot and living
with a non-Christian tribe, would or would not be subject to the cedula tax. On one
occasion a prominent Hebrew of Manila claimed to this office that he was exempt
from the cedula tax, inasmuch as he was not a Christian. This Office, however,
continued to collect cedula taxes from all the Jews, East Indians, Arabs, Chinamen,
etc., residing in Manila. Quite a large proportion of the cedula taxes paid in this city
are paid by men belonging to the nationalities mentioned. Chinamen, Arabs and
other s are quite widely scattered throughout the Islands, and a condition similar to
that which exist in Manila also exists in most of the large provincial towns. Cedula
taxes are therefore being collected by this Office in all parts of these Islands on the
broad ground that civilized people are subject to such taxes, and non-civilized
people preserving their tribal relations are not subject thereto.
(Sgd.) JNO. S. HORD,
Collector of Internal Revenue.
On September 17, 1910, the Collector of Internal Revenue addressed circular letter
No. 327, approved by the Secretary of Finance and Justice, to all provincial
treasurers. This letter in part reads:
In view of the many questions that have been raised by provincial treasurers
regarding cedula taxes due from members of non-Christian tribes when they come in
from the hills for the purposes of settling down and becoming members of the body
politic of the Philippine Islands, the following clarification of the laws governing such
questions and digest of rulings thereunder is hereby published for the information of
all concerned:
Non-Christian inhabitants of the Philippine Islands are so classed, not by reason of
the fact that they do not profess Christianity, but because of their uncivilized mode
of life and low state of development. All inhabitants of the Philippine Islands classed
as members of non-Christian tribes may be divided into three classes in so far as the
cedula tax law is concerned . . .
Whenever any member of an non-Christian tribe leaves his wild and uncivilized
mode of life, severs whatever tribal relations he may have had and attaches himself
civilized community, belonging a member of the body politic, he thereby makes
himself subject to precisely the same law that governs the other members of that
community and from and after the date when he so attaches himself to the
community the same cedula and other taxes are due from him as from other
members thereof. If he comes in after the expiration of the delinquency period the
same rule should apply to him as to persons arriving from foreign countries or
reaching the age of eighteen subsequent to the expiration of such period, and a
regular class A, D, F, or H cedula, as the case may be, should be furnished him
without penalty and without requiring him to pay the tax for former years.
In conclusion, it should be borne in mind that the prime factors in determining
whether or not a man is subject to the regular cedula tax is not the circumstance
that he does or does not profess Christianity, nor even his maintenance of or failure
to maintain tribal relations with some of the well known wild tribes, but his mode of
life, degree of advancement in civilization and connection or lack of connection with
some civilized community. For this reason so called "Remontados" and "Montescos"
will be classed by this office as members of non-Christian tribes in so far as the
application of the Internal Revenue Law is concerned, since, even though they
belong to no well recognized tribe, their mode of life, degree of advancement and so
forth are practically the same as those of the Igorrots and members of other
recognized non-Christina tribes.
Very respectfully,
(Sgd.) ELLIS CROMWELL,
Collector of Internal Revenue,
Approved:
(Sgd.) GREGORIO ARANETA,
Secretary of Finance and Justice.
The two circular above quoted have since been repealed by Bureau of Internal
Revenue Regulations No. 1, promulgated by Venancio Concepcion, Acting Collector
of Internal Revenue, and approved on April 16, 1915, by Honorable Victorino Mapa,
Secretary of Finance and Justice. Section 30 of the regulations is practically a
transcript of Circular Letter No. 327.
The subject has come before the Attorney-General for consideration. The Chief of
Constabulary request the opinion of the Attorney-General as to the status of a non-
Christian who has been baptized by a minister of the Gospel. The precise questions
were these: "Does he remain non-Christian or is he entitled to the privileges of a
Christian? By purchasing intoxicating liquors, does he commit an infraction of the
law and does the person selling same lay himself liable under the provision of Act
No. 1639?" The opinion of Attorney-General Avancea, after quoting the same
authorities hereinbefore set out, concludes:
In conformity with the above quoted constructions, it is probable that is probable
that the person in question remains a non-Christian, so that, in purchasing
intoxicating liquors both he and the person selling the same make themselves liable
to prosecution under the provisions of Act No. 1639. At least, I advise you that these
should be the constructions place upon the law until a court shall hold otherwise.
Solicitor-General Paredes in his brief in this case says:
With respect to the meaning which the phrase non-Christian inhabitants has in the
provisions of the Administrative code which we are studying, we submit that said
phrase does not have its natural meaning which would include all non-Christian
inhabitants of the Islands, whether Filipino or strangers, civilized or uncivilized, but
simply refers to those uncivilized members of the non-Christian tribes of the
Philippines who, living without home or fixed residence, roam in the mountains,
beyond the reach of law and order . . .
The Philippine Commission in denominating in its laws that portion of the inhabitants
of the Philippines which live in tribes as non-Christian tribes, as distinguished from
the common Filipinos which carry on a social and civilized life, did not intended to
establish a distinction based on the religious beliefs of the individual, but, without
dwelling on the difficulties which later would be occasioned by the phrase, adopted
the expression which the Spanish legislation employed to designate the uncivilized
portion of the inhabitants of the Philippines.
The phrase 'non-Christian inhabitants' used in the provisions of articles 2077 and
2741 of Act No. 2657 (articles 2145 and 2759) should be understood as equivalent
to members of uncivilized tribes of the Philippines, not only because this is the
evident intention of the law, but because to give it its lateral meaning would make
the law null and unconstitutional as making distinctions base the religion of the
individual.
The Official Census of 1903, in the portion written by no less an authority than De.
David P. Barrows, then "Chief of the Bureau of non-Christian Tribes," divides the
population in the Christian or Civilized Tribes, and non-Christian or Wild Tribes.
(Census of the Philippine Islands [1903], vol. 1, pp. 411 et seq). The present Director
of the Census, Hon. Ignacio Villamor, writes that the classification likely to be used in
the Census now being taken is: "Filipinos and Primitive Filipinos." In a Pronouncing
Gazetteer and Geographical Dictionary of the Philippine Islands, prepared in the
Bureau of Insular Affairs, War Department, a sub-division under the title non-
Christian tribes is, "Physical and Political Characteristics of the non-Christian Tribes,"
which sufficiently shows that the terms refers to culture and not to religion.
In resume, therefore, the Legislature and the Judiciary, inferentially, and different
executive officials, specifically, join in the proposition that the term "non-Christian"
refers, not to religious belief, but, in a way , to geographical area, and, more directly,
to natives of the Philippine Islands of a law grade of civilization, usually living in
tribal relationship apart from settled communities.
E. THE MANGUIANES.
The so-called non-Christians are in various state approaching civilization. The
Philippine Census of 1903 divided them into four classes. Of the third class, are the
Manguianes (or Mangyans) of Mindoro.
Of the derivation of the name "Manguian" Dr. T. H. Pardo de Tavera in his Etimilogia
de los nombres de Rozas de Filipinas, says:
In Tagalog, Bicol, and Visaya, Manguian signifies "savage," "mountainer," "pagan,"
"negro." It may be that the use of this word is applicable to a great number of
Filipinos, but nevertheless it has been applied only to certain inhabitants of Mindoro.
Even in primitive times without doubt this name was given to those of that island
who bear it to-day, but its employed in three Filipino languages shows that the
radical ngian had in all these languages a sense to-day forgotten. In Pampango this
ending still exists and signifies "ancient," from which we can deduce that the name
was applied to men considered to be the ancient inhabitants, and that these men
were pushed back into the interior by the modern invaders, in whose language they
were called the "ancients."
The Manguianes are very low in culture. They have considerable Negrito blood and
have not advanced beyond the Negritos in civilization. They are a peaceful, timid,
primitive, semi-nomadic people. They number approximately 15,000. The
manguianes have shown no desire for community life, and, as indicated in the
preamble to Act No. 547, have not progressed sufficiently in civilization to make it
practicable to bring them under any form of municipal government. (See Census of
the Philippine (Islands [1903], vol. I, pp. 22, 23, 460.)
III. COMPARATIVE THE AMERICAN INDIANS.
Reference was made in the Presidents' instructions to the Commission to the policy
adopted by the United States for the Indian Tribes. The methods followed by the
Government of the Philippines Islands in its dealings with the so-called non-Christian
people is said, on argument, to be practically identical with that followed by the
United States Government in its dealings with the Indian tribes. Valuable lessons, it
is insisted, can be derived by an investigation of the American-Indian policy.
From the beginning of the United States, and even before, the Indians have been
treated as "in a state of pupilage." The recognized relation between the Government
of the United States and the Indians may be described as that of guardian and ward.
It is for the Congress to determine when and how the guardianship shall be
terminated. The Indians are always subject to the plenary authority of the United
States.
Chief Justice Marshall in his opinion in Worcester vs. Georgia, hereinbefore
mentioned, tells how the Congress passed an Act in 1819 "for promoting those
humane designs of civilizing the neighboring Indians." After quoting the Act, the
opinion goes on "This act avowedly contemplates the preservation of the Indian
nations as an object sought by the United States, and proposes to effect this object
by civilizing and converting them from hunters into agriculturists."
A leading case which discusses the status of the Indians is that of the United States
vs. Kagama ([1886], 118 U.S., 375). Reference is herein made to the clause of the
United States Constitution which gives Congress "power to regulate commerce with
foreign nations, and among the several States, and with the Indian tribes." The court
then proceeds to indicate a brief history of the position of the Indians in the United
States (a more extended account of which can be found in Marshall's opinion in
Worcester vs. Georgia, supra), as follows:
The relation of the Indian tribes living within the borders of the United States, both
before and since the Revolution, to the people of the United States, has always been
an anomalous one and of a complex character.
Following the policy of the European Governments in the discovery of American
towards the Indians who were found here, the colonies before the Revolution and the
States and the United States since, have recognized in the Indians a possessory
right to the soil over which they roamed and hunted and established occasional
villages. But they asserted an ultimate title in the land itself, by which the Indian
tribes were forbidden to sell or transfer it to other nations or peoples without the
consent of this paramount authority. When a tribe wished to dispose of its lands, or
any part of it, or the State or the United States wished to purchase it, a treaty with
the tribe was the only mode in which this could be done. The United States
recognized no right in private persons, or in other nations, to make such a purchase
by treaty or otherwise. With the Indians themselves these relation are equally
difficult to define. They were, and always have been, regarded as having a semi-
independent position when they preserved their tribal relations; not as States, not as
nation not a possessed of the fall attributes of sovereignty, but as a separate people,
with the power of regulating their internal and social relations, and thus far not
brought under the laws of the Union or of the State within whose limits they resided.
The opinion then continues:
It seems to us that this (effect of the law) is within the competency of Congress.
These Indian tribes are the wards of the nation. The are communities dependent on
the United States. dependent largely for their daily food. Dependent for their
political rights. They owe no allegiance to the States, and receive from the no
protection. Because of the local ill feeling, the people of the States where they are
found are often their deadliest enemies. From their very weakness and helplessness,
so largely due to the course of dealing of the Federal Government with them and the
treaties in which it has been promised, there arise the duty of protection, and with it
the power. This has always been recognized by the Executive and by Congress, and
by this court, whenever the question has arisen . . . The power of the General
Government over these remnants of race once powerful, now weak and diminished
in numbers, is necessary to their protection, as well as to the safety of those among
whom they dwell. it must exist in that government, because it never has existed
anywhere else, because the theater of its exercise is within the geographical limits
of the United States, because it has never been denied, and because it alone can
enforce its laws on all the tribes.
In the later case of United States vs. Sandoval ([1913], 231 U.S., 28) the question to
be considered was whether the status of the Pueblo Indians and their lands was such
that Congress could prohibit the introduction of intoxicating liquor into those lands
notwithstanding the admission of New Mexico to statehood. The court looked to the
reports of the different superintendent charged with guarding their interests and
founds that these Indians are dependent upon the fostering care and protection of
the government "like reservation Indians in general." Continuing, the court said "that
during the Spanish dominion, the Indians of the pueblos were treated as wards
requiring special protection, where subjected to restraints and official supervisions in
the alienation of their property." And finally, we not the following: "Not only does the
Constitution expressly authorize Congress to regulate commerce with the Indians
tribes, but long-continued legislative and executive usage and an unbroken current
of judicial decisions have attributed to the United States as a superior and civilized
nation the power and the duty of exercising a fostering care and protection over all
dependent Indian communities within its borders, whether within its original territory
or territory subsequently acquired, and whether within or without the limits of a
state."
With reference to laws affecting the Indians, it has been held that it is not within the
power of the courts to overrule the judgment of Congress. For very good reason, the
subject has always been deemed political in nature, not subject to the jurisdiction of
the judicial department of the government. (Matter of Heff [1905], 197 U.S., 488;
U.S. vs. Celestine [1909], 215 U.S., 278; U.S. vs. Sandoval, supra; Worcester vs.
Georgia, supra; U.S. vs. Rogers [1846], 4 How., 567; the Cherokee Tobacco [1871],
11 Wall, 616; Roff vs. Burney [1897], 168 U.S., 218; Thomas vs. Gay [1898], 169
U.S.., 264; Lone Wolf vs. Hitchcock[1903], 187 U.S., 553; Wallace vs. Adams [1907],
204 U.S., 415; Conley vs. Bollinger [1910], 216 U.S., 84; Tiger vs. Western Invest. Co.
[1911], 221 U.S., 286; U.S. vs. Lane [1913], 232 U.S.., 598; Cyr vs. Walker (1911], 29
Okla, 281; 35 L.R.A. [N. S.], 795.) Whenever, therefore, the United States sets apart
any public land as an Indian reservation, it has full authority to pass such laws and
authorize such measures as may be necessary to give to the Indians thereon full
protection in their persons and property. (U.S. vs. Thomas [1894], 151 U.S., 577.)
All this borne out by long-continued legislative and executive usage, and an
unbroken line of judicial decisions.
The only case which is even remotely in point and which, if followed literally, might
result in the issuance of habeas corpus, is that of United States vs. Crook ([1879],
Fed. Cas. No. 14891). This was a hearing upon return to a writ of habeas corpus
issued against Brigadier General George Crook at the relation of Standing Bear and
other Indians, formerly belonging to the Ponca Tribe of Indians. The petition alleged
in substance that the relators are Indians who have formerly belonged to the Ponca
tribe of Indians, now located in the Indian Territory; that they had some time
previously withdrawn from the tribe, and completely severed their tribal relations
therewith, and had adopted the general habits of the whites, and were then
endeavoring to maintain themselves by their own exertions, and without aid or
assistance from the general government; that whilst they were thus engaged, and
without being guilty of violating any of the laws of the United States, they were
arrested and restrained of their liberty by order of the respondent, George Crook.
The substance of the return to the writ was that the relators are individual members
of, and connected with, the Ponca tribe of Indians; that they had fled or escaped
form a reservation situated some place within the limits of the Indian Territory had
departed therefrom without permission from the Government; and, at the request of
the Secretary of the Interior, the General of the Army had issued an order which
required the respondent to arrest and return the relators to their tribe in the Indian
Territory, and that, pursuant to the said order, he had caused the relators to be
arrested on the Omaha Indian Territory.
The first question was whether an Indian can test the validity of an illegal
imprisonment by habeas corpus. The second question, of much greater importance,
related to the right of the Government to arrest and hold the relators for a time, for
the purpose of being returned to the Indian Territory from which it was alleged the
Indian escaped. In discussing this question, the court reviewed the policy the
Government had adopted in its dealing with the friendly tribe of Poncase. Then,
continuing, the court said: "Laws passed for the government of the Indian country,
and for the purpose of regulating trade and intercourse with the Indian tribes, confer
upon certain officers of the Government almost unlimited power over the persons
who go upon the reservations without lawful authority . . . Whether such an
extensive discretionary power is wisely vested in the commissioner of Indian affairs
or not , need not be questioned. It is enough to know that the power rightfully exists,
and, where existing, the exercise of the power must be upheld." The decision
concluded as follows:
The reasoning advanced in support of my views, leads me to conclude:
1. that an Indian is a 'person' within the meaning of the laws of the United
States, and has, therefore, the right to sue out a writ of habeas corpus in a federal
court, or before a federal judge, in all cases where he may be confined or in custody
under color of authority of the United States or where he is restrained of liberty in
violation of the constitution or laws of the United States.
2. That General George Crook, the respondent, being commander of the
military department of the Platte, has the custody of the relators, under color of
authority of the United States, and in violation of the laws therefore.
3. That n rightful authority exists for removing by force any of the relators to
the Indian Territory, as the respondent has been directed to do.
4. that the Indians possess the inherent right of expatriation, as well as the
more fortunate white race, and have the inalienable right to "life, liberty, and the
pursuit of happiness," so long as they obey the laws and do not trespass on
forbidden ground. And,
5. Being restrained of liberty under color of authority of the United States, and
in violation of the laws thereof, the relators must be discharged from custody, and it
is so ordered.
As far as the first point is concerned, the decision just quoted could be used as
authority to determine that Rubi, the Manguian petitioner, a Filipino, and a citizen of
the Philippine Islands, is a "person" within the meaning of the Habeas Corpus Act,
and as such, entitled to sue out a writ in the Philippine courts. (See also In re Race
Horse [1895], 70 Fed., 598.) We so decide.
As to the second point the facts in the Standing Bear case an the Rubi case are not
exactly identical. But even admitting similarity of facts, yet it is known to all that
Indian reservations do exist in the United States, that Indians have been taken from
different parts of the country and placed on these reservation, without any previous
consultation as to their own wishes, and that, when once so located, they have been
made to remain on the reservation for their own good and for the general good of
the country. If any lesson can be drawn form the Indian policy of the United States, it
is that the determination of this policy is for the legislative and executive branches
of the government and that when once so decided upon, the courts should not
interfere to upset a carefully planned governmental system. Perhaps, just as may
forceful reasons exists for the segregation as existed for the segregation of the
different Indian tribes in the United States.
IV. CONSTITUTIONAL QUESTIONS.
A. DELEGATION OF LEGISLATIVE POWER.
The first constitutional objection which confronts us is that the Legislature could not
delegate this power to provincial authorities. In so attempting, it is contended, the
Philippine Legislature has abdicated its authority and avoided its full responsibility.
That the maxim of Constitutional Law forbidding the delegation of legislative power
should be zealously protected, we agree. An understanding of the rule will, however,
disclose that it has not bee violated in his instance.
The rule has nowhere been better stated than in the early Ohio case decided by
Judge Ranney, and since followed in a multitude of case, namely: "The true
distinction therefore is between the delegation of power to make the law, which
necessarily involves a discretion as to what it shall be, and conferring an authority or
discretion as to its execution, to be exercised under and in pursuance of the law. The
first cannot be done; to the later no valid objection can be made." (Cincinnati, W. &
Z. R. Co. vs. Comm'rs. Clinton County [1852], 1 Ohio S.t, 88.) Discretion, as held by
Chief Justice Marshall in Wayman vs. Southard ([1825], 10 Wheat., 1) may be
committed by the Legislature to an executive department or official. The Legislature
may make decisions of executive departments of subordinate official thereof, to
whom t has committed the execution of certain acts, final on questions of fact. (U.S.
vs. Kinkead [1918], 248 Fed., 141.) The growing tendency in the decision is to give
prominence to the "necessity" of the case.
Is not all this exactly what the Legislature has attempted to accomplish by the
enactment of section 21454 of the Administrative Code? Has not the Legislature
merely conferred upon the provincial governor, with the approval of the provincial
board and the Department Head, discretionary authority as to the execution of the
law? Is not this "necessary"?
The case of West vs. Hitchock, ([1906], 205 U.S., 80) was a petition for mandamus to
require the Secretary of the Interior to approve the selection and taking of one
hundred and sixty acres by the relator out of the lands ceded to the United States by
the Wichita and affiliated bands of Indians. Section 463 of the United States Revised
Statutes provided: "The Commissioner of Indian Affairs shall, under the direction of
the Secretary of the Interior, and agreeably to such regulations as the President may
prescribe, have the management of all Indian affairs, and of all matters arising out
to the Indian relations." Justice Holmes said: "We should hesitate a good deal,
especially in view of the long established practice of the Department, before saying
that this language was not broad enough to warrant a regulation obviously made for
the welfare of the rather helpless people concerned. The power of Congress is not
doubted. The Indians have been treated as wards of the nation. Some such
supervision was necessary, and has been exercised. In the absence of special
provisions naturally it would be exercised by the Indian Department." (See also as
corroborative authority, it any is needed, Union Bridge Co. vs. U.S. [1907], 204 U.S..,
364, reviewing the previous decisions of the United States Supreme Court: U.S. vs.
Lane [1914], 232 U.S., 598.)
There is another aspect of the question, which once accepted, is decisive. An
exception to the general rule. sanctioned by immemorial practice, permits the
central legislative body to delegate legislative powers to local authorities. The
Philippine Legislature has here conferred authority upon the Province of Mindoro, to
be exercised by the provincial governor and the provincial board.
Who but the provincial governor and the provincial board, as the official
representatives of the province, are better qualified to judge "when such as course is
deemed necessary in the interest of law and order?" As officials charged with the
administration of the province and the protection of its inhabitants, who but they are
better fitted to select sites which have the conditions most favorable for improving
the people who have the misfortune of being in a backward state?
Section 2145 of the Administrative Code of 1917 is not an unlawful delegation of
legislative power by the Philippine Legislature to provincial official and a department
head.
B. RELIGIOUS DISCRIMINATION
The attorney de officio, for petitioners, in a truly remarkable brief, submitted on
behalf of his unknown clients, says that "The statute is perfectly clear and
unambiguous. In limpid English, and in words as plain and unequivocal as language
can express, it provides for the segregation of 'non-Christians' and none other." The
inevitable result, them, is that the law "constitutes an attempt by the Legislature to
discriminate between individuals because of their religious beliefs, and is,
consequently, unconstitutional."
Counsel's premise once being conceded, his arguments is answerable the
Legislature must be understood to mean what it has plainly expressed; judicial
construction is then excluded; religious equality is demanded by the Organic Law;
the statute has violated this constitutional guaranty, and Q. E. D. is invalid. But, as
hereinbefore stated, we do not feel free to discard the long continued meaning given
to a common expression, especially as classification of inhabitants according to
religious belief leads the court to what it should avoid, the nullification of legislative
action. We hold that the term "non-Christian" refers to natives of the Philippines
Islands of a low grade of civilization, and that section 2145 of the Administrative
Code of 1917, does not discriminate between individuals an account of religious
differences.
C. LIBERTY; DUE PROCESS OF LAW; EQUAL PROTECTION OF THE LAWS.
The third constitutional argument is grounded on those portions of the President's
instructions of to the Commission, the Philippine Bill, and the Jones Law, providing
"That no law shall be enacted in said Islands which shall deprive any person of life,
liberty, or property without due process of law, or deny to any person therein the
equal protection of the laws." This constitutional limitation is derived from the
Fourteenth Amendment to the United States Constitution and these provisions, it
has been said "are universal in their application, to all persons within the territorial
jurisdiction, without regard to any differences of race, of color, or of nationality."
(Yick Wo vs. Hopkins [1886], 118 U.S., 356.) The protection afforded the individual is
then as much for the non-Christian as for the Christian.
The conception of civil liberty has been variously expressed thus:
Every man may claim the fullest liberty to exercise his faculties, compatible with the
possession of like liberty by every other. (Spencer, Social Statistics, p. 94.)
Liberty is the creature of law, essentially different from that authorized
licentiousness that trespasses on right. That authorized licentiousness that
trespasses on right. It is a legal and a refined idea, the offspring of high civilization,
which the savage never understood, and never can understand. Liberty exists in
proportion to wholesome restraint; the more restraint on others to keep off from us,
the more liberty we have . . . that man is free who is protected from injury. (II
Webster's Works, p. 393.)
Liberty consists in the ability to do what one caught to desire and in not being forced
to do what one ought not do desire. (Montesque, spirit of the Laws.)
Even liberty itself, the greatest of all rights, is no unrestricted license to ac according
to one's own will. It is only freedom from restraint under conditions essential to the
equal enjoyment of the same right by others. (Field, J., in Crowley vs. Christensen
[1890], 137 U.S., 86.)
Liberty does not import "an absolute right in each person to be, at all times and in
all circumstances, wholly freed from restraint. There are manifold restraints to which
every person is necessarily subject for the common good. On any other basis,
organized society could not exist with safety to its members. Society based on the
rule that each one is a law unto himself would soon be confronted with disorder and
anarchy. Real liberty for all could not exist under the operation of a principle which
recognizes the right of each individual person to use his own, whether in respect of
his person or his property, regardless of the injury that may be done to others . . .
There is, of course, a sphere with which the individual may asserts the supremacy of
his own will, and rightfully dispute the authority of any human government
especially of any free government existing under a written Constitution to
interfere with the exercise of that will. But it is equally true that in very well-ordered
society charged with the duty of conserving the safety of its members, the rights of
the individual in respect of his liberty may at times, under the pressure of great
dangers, be subjected to such restraint to be enforced by reasonable regulations, as
the safety of the general public may demand." (Harlan, J., In Jacobson vs.
Massachusetts [1905] 197 U.S., 11.)
Liberty is freedom to do right and never wrong; it is ever guided by reason and the
upright and honorable conscience of the individual. (Apolinario Mabini.)
Civil Liberty may be said to mean that measure of freedom which may be enjoyed in
a civilized community, consistently with the peaceful enjoyment of like freedom in
others. The right to Liberty guaranteed by the Constitution includes the right to exist
and the right to be free from arbitrary personal restraint or servitude. The term
cannot be dwarfed into mere freedom from physical restraint of the person of the
citizen, but is deemed to embrace the right of man to enjoy the faculties with which
he has been endowed by this Creator, subject only to such restraints as are
necessary for the common welfare. As enunciated in a long array of authorities
including epoch-making decisions of the United States Supreme Court, Liberty
includes the right of the citizens to be free to use his faculties in all lawful ways; to
live an work where he will; to earn his livelihood by an lawful calling; to pursue any
avocations, an for that purpose. to enter into all contracts which may be proper,
necessary, and essential to his carrying out these purposes to a successful
conclusion. The chief elements of the guaranty are the right to contract, the right to
choose one's employment, the right to labor, and the right of locomotion.
In general, it may be said that Liberty means the opportunity to do those things
which are ordinarily done by free men. (There can be noted Cummings vs. Missouri
[1866], 4 Wall, 277; Wilkinson vs. Leland [1829], 2 Pet., 627; Williams vs. Fears
[1900], 179 U.S., 274; Allgeyer vs. Louisiana [1896], 165, U.S., 578; State vs.
Kreutzberg [1902], 114 Wis., 530. See 6 R.C.L., 258, 261.)
One thought which runs through all these different conceptions of Liberty is plainly
apparent. It is this: "Liberty" as understood in democracies, is not license; it is
"Liberty regulated by law." Implied in the term is restraint by law for the good of the
individual and for the greater good of the peace and order of society and the general
well-being. No man can do exactly as he pleases. Every man must renounce
unbridled license. The right of the individual is necessarily subject to reasonable
restraint by general law for the common good. Whenever and wherever the natural
rights of citizen would, if exercises without restraint, deprive other citizens of rights
which are also and equally natural, such assumed rights must yield to the regulation
of law. The Liberty of the citizens 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. (See Hall vs. Geiger-Jones [1916], 242 U.S., 539; Hardie-Tynes
Manufacturing Co. vs. Cruz [1914], 189 Al., 66.)
None of the rights of the citizen can be taken away except by due process of law.
Daniel Webster, in the course of the argument in the Dartmouth College Case before
the United States Supreme Court, since a classic in forensic literature, said that the
meaning of "due process of law" is, that "every citizen shall hold his life, liberty,
property, an immunities under the protection of the general rules which govern
society." To constitute "due process of law," as has been often held, a judicial
proceeding is not always necessary. In some instances, even a hearing and notice
are not requisite a rule which is especially true where much must be left to the
discretion of the administrative officers in applying a law to particular cases. (See
McGehee, Due Process of Law, p. 371.) Neither is due process a stationary and blind
sentinel of liberty. "Any legal proceeding enforced by public authority, whether
sanctioned by age and customs, or newly devised in the discretion of the legislative
power, in furtherance of the public good, which regards and preserves these
principles of liberty and justice, must be held to be due process of law." (Hurtado vs.
California [1883], 110, U.S., 516.) "Due process of law" means simply . . . "first, that
there shall be a law prescribed in harmony with the general powers of the legislative
department of the Government; second, that this law shall be reasonable in its
operation; third, that it shall be enforced according to the regular methods of
procedure prescribed; and fourth, that it shall be applicable alike to all the citizens of
the state or to all of a class." (U.S. vs. Ling Su Fan [1908], 10 Phil., 104, affirmed on
appeal to the United States Supreme Court. 1) "What is due process of law depends
on circumstances. It varies with the subject-matter and necessities of the situation."
(Moyer vs. Peablody [1909], 212 U. S., 82.)
The pledge that no person shall be denied the equal protection of the laws is not
infringed by a statute which is applicable to all of a class. The classification must
have a reasonable basis and cannot be purely arbitrary in nature.
We break off with the foregoing statement, leaving the logical deductions to be
made later on.
D. SLAVERY AND INVOLUNTARY SERVITUDE.
The fourth constitutional contention of petitioner relates to the Thirteen Amendment
to the United States Constitution particularly as found in those portions of Philippine
Organic Law providing "That slavery shall not exist in said Islands; nor shall
involuntary servitude exist except as a punishment for crime whereof the party shall
have been duly convicted." It is quite possible that the Thirteenth Amendment, since
reaching to "any place subject to" the "jurisdiction" of the United States, has force in
the Philippine. However this may be, the Philippine Legislature has, by adoption,
with necessary modifications, of sections 268 to 271 inclusive of the United States
Criminal Code, prescribed the punishment for these crimes. Slavery and involuntary
servitude, together wit their corollary, peonage, all denote "a condition of enforced,
compulsory service of one to another." (Hodges vs. U.S. [1906], 203 U.S., 1.) The
term of broadest scope is possibly involuntary servitude. It has been applied to any
servitude in fact involuntary, no matter under what form such servitude may have
been disguised. (Bailey vs. Alabama [1910], 219 U.S., 219.)
So much for an analysis of those constitutional provisions on which petitioners rely
for their freedom. Next must come a description of the police power under which the
State must act if section 2145 is to be held valid.
E. THE POLICE POWER.
Not attempting to phrase a definition of police power, all that it is necessary to note
at this moment is the farreaching scope of the power, that it has become almost
possible to limit its weep, and that among its purposes is the power to prescribe
regulations to promote the health, peace, morals, education, and good order of the
people, and to legislate so as to increase the industries of the State, develop its
resources and add to is wealth and prosperity. (See Barbier vs. Connolly [1884], 113
U.S., 27.) What we are not interested in is the right of the government to restrain
liberty by the exercise of the police power.
"The police power of the State," one court has said, . . . "is a power coextensive with
self-protection, and is not inaptly termed the 'law of overruling 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." (Lake View vs. Rose
Hill Cemetery Co. [1873], 70 Ill., 191.) Carried onward by the current of legislation,
the judiciary rarely attempt to dam the on rushing power of legislative discretion,
provided the purposes of the law do not go beyond the great principles that mean
security for the public welfare or do not arbitrarily interfere with the right of the
individual.
The Government of the Philippine Islands has both on reason and authority the right
to exercise the sovereign police power in the promotion of the general welfare and
the public interest. "There can be not doubt that the exercise of the police power of
the Philippine Government belongs to the Legislature and that this power is limited
only by the Acts of Congress and those fundamental principles which lie at the
foundation of all republican forms of government." (Churchill and Tait vs. Rafferty
[1915], 32 Phil., 580; U.S. vs. Pompeya [1915], 31 Phil., 245.)
With the foregoing approximation of the applicable basic principles before us, before
finally deciding whether any constitutional provision has indeed been violated by
section 2145 of the Administrative Code, we should endeavor to ascertain the
intention of the Legislature in enacting this section. If legally possible, such
legislative intention should be effectuated.
F. LEGISLATIVE INTENT.
The preamble of the resolution of the provincial board of Mindoro which set apart the
Tigbao reservation, it will be remembered, assigned as reasons fort the action, the
following: (1) The failure of former attempts for the advancement of the non-
Christian people of the province; and (2) the only successfully method for educating
the Manguianes was to oblige them to live in a permanent settlement. The Solicitor-
General adds the following; (3) The protection of the Manguianes; (4) the protection
of the public forests in which they roam; (5) the necessity of introducing civilized
customs among the Manguianes.
The present Secretary of the Interior says of the Tigbao reservation and of the
motives for its selection, the following:
To inform himself of the conditions of those Manguianes who were taken together to
Tigbao, the Secretary of the Interior on June 10 to 13, 1918, made a trip to the place.
There he found that the site selected is a good one; that creditable progress has
been made in the clearing of forests, construction of buildings, etc., that there
appears to be encouraging reaction by the boys to the work of the school the
requirements of which they appear to meet with enthusiastic interest after the first
weeks which are necessarily a somewhat trying period for children wholly
unaccustomed to orderly behaviour and habit of life. He also gathered the
impression that the results obtained during the period of less than one year since
the beginning of the institution definitely justify its continuance and development.
Of course, there were many who were protesting against that segregation. Such was
naturally to be expected. But the Secretary of the Interior, upon his return to Manila,
made the following statement to the press:
"It is not deemed wise to abandon the present policy over those who prefer to live a
nomadic life and evade the influence of civilization. The Government will follow its
policy to organize them into political communities and to educate their children with
the object of making them useful citizens of this country. To permit them to live a
wayfaring life will ultimately result in a burden to the state and on account of their
ignorance, they will commit crimes and make depredation, or if not they will be
subject to involuntary servitude by those who may want to abuse them."
The Secretary of the Interior, who is the official charged with the supervision of all
the non-Christian people, has adopted as the polaris of his administration "the
advancement of the non-Christian elements of our population to equality and
unification with the highly civilized Christian inhabitants." This is carried on by the
adoption of the following measures:
(a) Pursuance of the closer settlement policy whereby people of seminomadic
race are induced to leave their wild habitat and settle in organized communities.(b)
 The extension of the public school system and the system of public health
throughout the regions inhabited by the non-Christian people.
(c) The extention of public works throughout the Mohammedan regions to
facilitate their development and the extention of government control.
(d) Construction of roads and trials between one place and another among
non-Christians, to promote social and commercial intercourse and maintain amicable
relations among them and with the Christian people.
(e) Pursuance of the development of natural economic resources, especially
agriculture.
(f) The encouragement of immigration into, and of the investment of private
capital in, the fertile regions of Mindanao and Sulu.
The Secretary adds:
To attain the end desired, work of a civilizing influence have been continued among
the non-Christian people. These people are being taught and guided to improve their
living conditions in order that they may fully appreciate the benefits of civilization.
Those of them who are still given to nomadic habits are being persuaded to abandon
their wild habitat and settle in organized settlements. They are being made to
understand that it is the purpose of the Government to organize them politically into
fixed and per manent communities, thus bringing them under the control of the
Government, to aid them to live and work, protect them from involuntary servitude
and abuse, educate their children, and show them the advantages of leading a
civilized life with their civilized brothers. In short, they are being impressed with the
purposes and objectives of the Government of leading them to economic, social, and
political equality, and unification with the more highly civilized inhabitants of the
country. (See Report of the Department for 1917.)
The fundamental objective of governmental policy is to establish friendly relations
with the so-called non-Christians, and to promote their educational, agricultural,
industrial, and economic development and advancement in civilization. (Note Acts
Nos. 2208, 2404, 2444.) Act No. 2674 in reestablishing the Bureau of non-Christian
Tribes, defines the aim of the Government towards the non-Christian people in the
following unequivocal terms:
It shall be the duty of the Bureau of non-Christian Tribes to continue the work for
advancement and liberty in favor of the region inhabited by non-Christian Filipinos
and foster by all adequate means and in a systematical, rapid, and complete
manner the moral, material, economic, social, and political development of those
regions, always having in view the aim of rendering permanent the mutual
intelligence between, and complete fusion of, all the Christian and non-Christian
elements populating the provinces of the Archipelago. (Sec. 3.)
May the Manguianes not be considered, as are the Indians in the United States,
proper wards of the Filipino people? By the fostering care of a wise Government,
may not these unfortunates advance in the "habits and arts of civilization?" Would it
be advisable for the courts to intrude upon a plan, carefully formulated, and
apparently working out for the ultimate good of these people?
In so far as the Manguianes themselves are concerned, the purpose of the
Government is evident. Here, we have on the Island of Mindoro, the Manguianes,
leading a nomadic life, making depredations on their more fortunate neighbors,
uneducated in the ways of civilization, and doing nothing for the advancement of the
Philippine Islands. What the Government wished to do by bringing than into a
reservation was to gather together the children for educational purposes, and to
improve the health and morals was in fine, to begin the process of civilization. this
method was termed in Spanish times, "bringing under the bells." The same idea
adapted to the existing situation, has been followed with reference to the
Manguianes and other peoples of the same class, because it required, if they are to
be improved, that they be gathered together. On these few reservations there live
under restraint in some cases, and in other instances voluntarily, a few thousands of
the uncivilized people. Segregation really constitutes protection for the manguianes.
Theoretically, one may assert that all men are created free and equal. Practically, we
know that the axiom is not precisely accurate. The Manguianes, for instance, are not
free, as civilized men are free, and they are not the equals of their more fortunate
brothers. True, indeed, they are citizens, with many but not all the rights which
citizenship implies. And true, indeed, they are Filipinos. But just as surely, the
Manguianes are citizens of a low degree of intelligence, and Filipinos who are a drag
upon the progress of the State.
In so far as the relation of the Manguianes to the State is concerned, the purposes of
the Legislature in enacting the law, and of the executive branch in enforcing it, are
again plain. Settlers in Mindoro must have their crops and persons protected from
predatory men, or they will leave the country. It is no argument to say that such
crimes are punished by the Penal Code, because these penalties are imposed after
commission of the offense and not before. If immigrants are to be encouraged to
develop the resources of the great Islands of Mindoro, and its, as yet, unproductive
regions, the Government must be in a position to guarantee peace and order.
Waste lands do not produce wealth. Waste people do not advance the interest of the
State. Illiteracy and thriftlessness are not conducive to homogeneity. The State to
protect itself from destruction must prod on the laggard and the sluggard. The great
law of overwhelming necessity is all convincing.
To quote again from the instructive memorandum of the Secretary of the Interior:
Living a nomadic and a wayfaring life and evading the influence of civilization, they
(the manguianes) are engaged in the works of destruction burning and destroying
the forests and making illegal caigins thereon. Not bringing any benefit to the State
but instead injuring and damaging its interests, what will ultimately become of these
people with the sort of liberty they wish to preserve and for which they are now
fighting in court? They will ultimately become a heavy burden to the State and on
account of their ignorance they will commit crimes and make depredations, or if not
they will be subjected to involuntary servitude by those who may want to abuse
them.
There is no doubt in my mind that this people a right conception of liberty and does
not practice liberty in a rightful way. They understand liberty as the right to do
anything they will going from one place to another in the mountains, burning and
destroying forests and making illegal caigins thereon.
Not knowing what true liberty is and not practising the same rightfully, how can they
allege that they are being deprived thereof without due process of law?
xxx xxx xxx
But does the Constitutional guaranty that 'no person shall be deprived of his liberty
without due process of law' apply to a class of persons who do not have a correct
idea of what liberty is and do not practise liberty in a rightful way?
To say that it does will mean to sanction and defend an erroneous idea of such class
of persons as to what liberty is. It will mean, in the case at bar, that the Government
should not adopt any measures looking to the welfare and advancement of the class
of persons in question. It will mean that this people should be let along in the
mountains and in a permanent state of savagery without even the remotest hope of
coming to understand liberty in its true and noble sense.
In dealing with the backward population, like the Manguianes, the Government has
been placed in the alternative of either letting them alone or guiding them in the
path of civilization. The latter measure was adopted as the one more in accord with
humanity and with national conscience.
xxx xxx xxx
The national legislation on the subject of non-Christian people has tended more and
more towards the education and civilization of such people and fitting them to be
citizens. The progress of those people under the tutelage of the Government is
indeed encouraging and the signs of the times point to a day which is not far distant
when they will become useful citizens. In the light of what has already been
accomplished which has been winning the gratitude of most of the backward people,
shall we give up the noble work simply because a certain element, believing that
their personal interests would be injured by such a measure has come forward and
challenged the authority of the Government to lead this people in the pat of
civilization? Shall we, after expending sweat, treasure, and even blood only to
redeem this people from the claws of ignorance and superstition, now willingly retire
because there has been erroneously invoked in their favor that Constitutional
guaranty that no person shall be deprived of his liberty without due process of law?
To allow them to successfully invoke that Constitutional guaranty at this time will
leave the Government without recourse to pursue the works of civilizing them and
making them useful citizens. They will thus left in a permanent state of savagery
and become a vulnerable point to attack by those who doubt, nay challenge, the
ability of the nation to deal with our backward brothers.
The manguianes in question have been directed to live together at Tigbao. There
they are being taught and guided to improve their living conditions. They are being
made to understand that they object of the government is to organize them
politically into fixed and permanent communities. They are being aided to live and
work. Their children are being educated in a school especially established for them.
In short, everything is being done from them in order that their advancement in
civilization and material prosperity may be assured. Certainly their living together in
Tigbao does not make them slaves or put them in a condition compelled to do
services for another. They do not work for anybody but for themselves. There is,
therefore, no involuntary servitude.
But they are compelled to live there and prohibited from emigrating to some other
places under penalty of imprisonment. Attention in this connection is invited to the
fact that this people, living a nomadic and wayfaring life, do not have permanent
individual property. They move from one place to another as the conditions of living
warrants, and the entire space where they are roving about is the property of the
nation, the greater part being lands of public domain. Wandering from one place to
another on the public lands, why can not the government adopt a measure to
concentrate them in a certain fixed place on the public lands, instead of permitting
them to roam all over the entire territory? This measure is necessary both in the
interest of the public as owner of the lands about which they are roving and for the
proper accomplishment of the purposes and objectives of the government. For as
people accustomed to nomadic habit, they will always long to return to the
mountains and follow a wayfaring life, and unless a penalty is provinced for, you can
not make them live together and the noble intention of the Government of
organizing them politically will come to naught.
G. APPLICATION AND CONCLUSION.
Our exhaustive study should have left us in a position to answer specific objections
and to reach a general conclusion.
In the first place, it is argued that the citizen has the right, generally speaking, to go
where he pleases. Could be not, however, be kept away from certain localities ? To
furnish an example from the Indian legislation. The early Act of Congress of 1802 (2
U.S. Stat. at L., p. 141) Indian reservation. Those citizens certainly did not possess
absolute freedom of locomotion. Again the same law provided for the apprehension
of marauding Indians. Without any doubt, this law and other similar were accepted
and followed time and again without question.
It is said that, if we hold this section to be constitutional, we leave this weak and
defenseless people confined as in a prison at the mercy of unscrupulous official.
What, it is asked, would be the remedy of any oppressed Manguian? The answer
would naturally be that the official into whose hands are given the enforcement of
the law would have little or not motive to oppress these people; on the contrary, the
presumption would all be that they would endeavor to carry out the purposes of the
law intelligently and patriotically. If, indeed, they did ill-treat any person thus
confined, there always exists the power of removal in the hands of superior officers,
and the courts are always open for a redress of grievances. When, however, only the
validity of the law is generally challenged and no particular case of oppression is
called to the attention of the courts, it would seems that the Judiciary should not
unnecessarily hamper the Government in the accomplishment of its laudable
purpose.
The question is above all one of sociology. How far, consistently with freedom, may
the right and liberties of the individual members of society be subordinated to the
will of the Government? It is a question which has assailed the very existence of
government from the beginning of time. Now purely an ethical or philosophical
subject, nor now to be decided by force, it has been transferred to the peaceful
forum of the Judiciary. In resolving such an issue, the Judiciary must realize that the
very existence of government renders imperatives a power to restrain the individual
to some extent, dependent, of course, on the necessities of the class attempted to
be benefited. As to the particular degree to which the Legislature and the Executive
can go in interfering with the rights of the citizen, this is, and for a along time to
come will be, impossible for the courts to determine.
The doctrines of laissez faire and of unrestricted freedom of the individual, as
axioms of economics and political theory, are of the past. The modern period has
shown as widespread belief in the amplest possible demonstration of governmental
activity. The courts unfortunately have sometimes seemed to trial after the other
two branches of the government in this progressive march.
Considered, therefore, purely as an exercise of the police power, the courts cannot
fairly say that the Legislature has exceeded its rightful authority. it is, indeed, an
unusual exercise of that power. But a great malady requires an equally drastic
remedy.
Further, one cannot hold that the liberty of the citizen is unduly interfered without
when the degree of civilization of the Manguianes is considered. They are restrained
for their own good and the general good of the Philippines. Nor can one say that due
process of law has not been followed. To go back to our definition of due process of
law and equal protection of the law, there exists a law ; the law seems to be
reasonable; it is enforced according to the regular methods of procedure prescribed;
and it applies alike to all of a class.
As a point which has been left for the end of this decision and which, in case of
doubt, would lead to the determination that section 2145 is valid. it the attitude
which the courts should assume towards the settled policy of the Government. In a
late decision with which we are in full accord, Gambles vs. Vanderbilt University (200
Southwestern Reporter, 510) the Chief Justice of the Supreme Court of Tennessee
writes:
We can seen objection to the application of public policy as a ratio decidendi. Every
really new question that comes before the courts is, in the last analysis, determined
on that theory, when not determined by differentiation of the principle of a prior
case or line of cases, or by the aid of analogies furnished by such prior case. In
balancing conflicting solutions, that one is perceived to tip the scales which the
court believes will best promote the public welfare in its probable operation as a
general rule or principle. But public policy is not a thing inflexible. No court is wise
enough to forecast its influence in all possible contingencies. Distinctions must be
made from time to time as sound reason and a true sense of justice may dictate."
Our attempt at giving a brief history of the Philippines with reference to the so-called
non-Christians has been in vain, if we fail to realize that a consistent governmental
policy has been effective in the Philippines from early days to the present. The idea
to unify the people of the Philippines so that they may approach the highest
conception of nationality. If all are to be equal before the law, all must be
approximately equal in intelligence. If the Philippines is to be a rich and powerful
country, Mindoro must be populated, and its fertile regions must be developed. The
public policy of the Government of the Philippine Islands is shaped with a view to
benefit the Filipino people as a whole. The Manguianes, in order to fulfill this
governmental policy, must be confined for a time, as we have said, for their own
good and the good of the country.
Most cautiously should the power of this court to overrule the judgment of the
Philippine Legislature, a coordinate branch, be exercised. The whole tendency of the
best considered case is toward non-interference on the part of the courts whenever
political ideas are the moving consideration. Justice Holmes, in one of the aphorisms
for which he is justly famous, said that "constitutional law, like other mortal
contrivances, has to take some chances." (Blinn vs. Nelson [1911], 222 U.S., 1.) If in
the final decision of the many grave questions which this case presents, the courts
must take "a chance," it should be with a view to upholding the law, with a view to
the effectuation of the general governmental policy, and with a view to the court's
performing its duty in no narrow and bigoted sense, but with that broad conception
which will make the courts as progressive and effective a force as are the other
departments of the Government.
We are of the opinion that action pursuant to section 2145 of the Administrative
Code does not deprive a person of his liberty without due process of law and does
not deny to him the equal protection of the laws, and that confinement in
reservations in accordance with said section does not constitute slavery and
involuntary servitude. We are further of the opinion that section 2145 of the
Administrative Code is a legitimate exertion of the police power, somewhat
analogous to the Indian policy of the United States. Section 2145 of the
Administrative Code of 1917 is constitutional.
Petitioners are not unlawfully imprisoned or restrained of their liberty. Habeas corpus
can, therefore, not issue. This is the true ruling of the court. Costs shall be taxes
against petitioners. So ordered.
Arellano, C.J., Torres and Avancea, JJ., concur.
G.R. No. 15574 September 17, 1919
SMITH, BELL & COMPANY (LTD.), petitioner,
vs.
JOAQUIN NATIVIDAD, Collector of Customs of the port of Cebu, respondent.
Ross and Lawrence for petitioner.
Attorney-General Paredes for respondent.
MALCOLM, J.:
A writ of mandamus is prayed for by Smith, Bell & Co. (Ltd.), against Joaquin
Natividad, Collector of Customs of the port of Cebu, Philippine Islands, to compel him
to issue a certificate of Philippine registry to the petitioner for its motor vessel Bato.
The Attorney-General, acting as counsel for respondent, demurs to the petition on
the general ground that it does not state facts sufficient to constitute a cause of
action. While the facts are thus admitted, and while, moreover, the pertinent
provisions of law are clear and understandable, and interpretative American
jurisprudence is found in abundance, yet the issue submitted is not lightly to be
resolved. The question, flatly presented, is, whether Act. No. 2761 of the Philippine
Legislature is valid or, more directly stated, whether the Government of the
Philippine Islands, through its Legislature, can deny the registry of vessels in its
coastwise trade to corporations having alien stockholders.
FACTS.
Smith, Bell & Co., (Ltd.), is a corporation organized and existing under the laws of
the Philippine Islands. A majority of its stockholders are British subjects. It is the
owner of a motor vessel known as the Bato built for it in the Philippine Islands in
1916, of more than fifteen tons gross The Bato was brought to Cebu in the present
year for the purpose of transporting plaintiff's merchandise between ports in the
Islands. Application was made at Cebu, the home port of the vessel, to the Collector
of Customs for a certificate of Philippine registry. The Collector refused to issue the
certificate, giving as his reason that all the stockholders of Smith, Bell & Co., Ltd.,
were not citizens either of the United States or of the Philippine Islands. The instant
action is the result.
LAW.
The Act of Congress of April 29, 1908, repealing the Shipping Act of April 30, 1906
but reenacting a portion of section 3 of this Law, and still in force, provides in its
section 1:
That until Congress shall have authorized the registry as vessels of the United States
of vessels owned in the Philippine Islands, the Government of the Philippine Islands
is hereby authorized to adopt, from time to time, and enforce regulations governing
the transportation of merchandise and passengers between ports or places in the
Philippine Archipelago. (35 Stat. at L., 70; Section 3912, U. S. Comp Stat. [1916]; 7
Pub. Laws, 364.)
The Act of Congress of August 29, 1916, commonly known as the Jones Law, still in
force, provides in section 3, (first paragraph, first sentence), 6, 7, 8, 10, and 31, as
follows.
SEC. 3. That no law shall be enacted in said Islands which shall deprive any person
of life, liberty, or property without due process of law, or deny to any person therein
the equal protection of the laws. . . .
SEC. 6. That the laws now in force in the Philippines shall continue in force and
effect, except as altered, amended, or modified herein, until altered, amended, or
repealed by the legislative authority herein provided or by Act of Congress of the
United States.
SEC. 7. That the legislative authority herein provided shall have power, when not
inconsistent with this Act, by due enactment to amend, alter modify, or repeal any
law, civil or criminal, continued in force by this Act as it may from time to time see fit
This power shall specifically extend with the limitation herein provided as to the
tariff to all laws relating to revenue provided as to the tariff to all laws relating to
revenue and taxation in effect in the Philippines.
SEC. 8. That general legislative power, except as otherwise herein provided, is
hereby granted to the Philippine Legislature, authorized by this Act.
SEC. 10. That while this Act provides that the Philippine government shall have the
authority to enact a tariff law the trade relations between the islands and the United
States shall continue to be governed exclusively by laws of the Congress of the
United States: Provided, That tariff acts or acts amendatory to the tariff of the
Philippine Islands shall not become law until they shall receive the approval of the
President of the United States, nor shall any act of the Philippine Legislature
affecting immigration or the currency or coinage laws of the Philippines become a
law until it has been approved by the President of the United States: Provided
further, That the President shall approve or disapprove any act mentioned in the
foregoing proviso within six months from and after its enactment and submission for
his approval, and if not disapproved within such time it shall become a law the same
as if it had been specifically approved.
SEC. 31. That all laws or parts of laws applicable to the Philippines not in conflict
with any of the provisions of this Act are hereby continued in force and effect." (39
Stat at L., 546.)
On February 23, 1918, the Philippine Legislature enacted Act No. 2761. The first
section of this law amended section 1172 of the Administrative Code to read as
follows:
SEC. 1172. Certificate of Philippine register. Upon registration of a vessel of
domestic ownership, and of more than fifteen tons gross, a certificate of Philippine
register shall be issued for it. If the vessel is of domestic ownership and of fifteen
tons gross or less, the taking of the certificate of Philippine register shall be optional
with the owner.
"Domestic ownership," as used in this section, means ownership vested in some one
or more of the following classes of persons: (a) Citizens or native inhabitants of the
Philippine Islands; (b) citizens of the United States residing in the Philippine Islands;
(c) any corporation or company composed wholly of citizens of the Philippine Islands
or of the United States or of both, created under the laws of the United States, or of
any State thereof, or of thereof, or the managing agent or master of the vessel
resides in the Philippine Islands
Any vessel of more than fifteen gross tons which on February eighth, nineteen
hundred and eighteen, had a certificate of Philippine register under existing law,
shall likewise be deemed a vessel of domestic ownership so long as there shall not
be any change in the ownership thereof nor any transfer of stock of the companies
or corporations owning such vessel to person not included under the last preceding
paragraph.
Sections 2 and 3 of Act No. 2761 amended sections 1176 and 1202 of the
Administrative Code to read as follows:
SEC. 1176. Investigation into character of vessel. No application for a certificate
of Philippine register shall be approved until the collector of customs is satisfied
from an inspection of the vessel that it is engaged or destined to be engaged in
legitimate trade and that it is of domestic ownership as such ownership is defined in
section eleven hundred and seventy-two of this Code.
The collector of customs may at any time inspect a vessel or examine its owner,
master, crew, or passengers in order to ascertain whether the vessel is engaged in
legitimate trade and is entitled to have or retain the certificate of Philippine register.
SEC. 1202. Limiting number of foreign officers and engineers on board vessels. No
Philippine vessel operating in the coastwise trade or on the high seas shall be
permitted to have on board more than one master or one mate and one engineer
who are not citizens of the United States or of the Philippine Islands, even if they
hold licenses under section one thousand one hundred and ninety-nine hereof. No
other person who is not a citizen of the United States or of the Philippine Islands
shall be an officer or a member of the crew of such vessel. Any such vessel which
fails to comply with the terms of this section shall be required to pay an additional
tonnage tax of fifty centavos per net ton per month during the continuance of said
failure.
ISSUES.
Predicated on these facts and provisions of law, the issues as above stated recur,
namely, whether Act No 2761 of the Philippine Legislature is valid in whole or in part
whether the Government of the Philippine Islands, through its Legislature, can
deny the registry of vessel in its coastwise trade to corporations having alien
stockholders .
OPINION.
1. Considered from a positive standpoint, there can exist no measure of doubt
as to the power of the Philippine Legislature to enact Act No. 2761. The Act of
Congress of April 29, 1908, with its specific delegation of authority to the
Government of the Philippine Islands to regulate the transportation of merchandise
and passengers between ports or places therein, the liberal construction given to
the provisions of the Philippine Bill, the Act of Congress of July 1, 1902, by the
courts, and the grant by the Act of Congress of August 29, 1916, of general
legislative power to the Philippine Legislature, are certainly superabundant authority
for such a law. While the Act of the local legislature may in a way be inconsistent
with the Act of Congress regulating the coasting trade of the Continental United
States, yet the general rule that only such laws of the United States have force in
the Philippines as are expressly extended thereto, and the abnegation of power by
Congress in favor of the Philippine Islands would leave no starting point for
convincing argument. As a matter of fact, counsel for petitioner does not assail
legislative action from this direction (See U. S. vs. Bull [1910], 15 Phil., 7; Sinnot vs.
Davenport [1859] 22 How., 227.)
2. It is from the negative, prohibitory standpoint that counsel argues against
the constitutionality of Act No. 2761. The first paragraph of the Philippine Bill of
Rights of the Philippine Bill, repeated again in the first paragraph of the Philippine
Bill of Rights as set forth in the Jones Law, provides "That no law shall be enacted in
said Islands which shall deprive any person of life, liberty, or property without due
process of law, or deny to any person therein the equal protection of the laws."
Counsel says that Act No. 2761 denies to Smith, Bell & Co., Ltd., the equal protection
of the laws because it, in effect, prohibits the corporation from owning vessels, and
because classification of corporations based on the citizenship of one or more of
their stockholders is capricious, and that Act No. 2761 deprives the corporation of its
properly without due process of law because by the passage of the law company
was automatically deprived of every beneficial attribute of ownership in the Bato
and left with the naked title to a boat it could not use .
The guaranties extended by the Congress of the United States to the Philippine
Islands have been used in the same sense as like provisions found in the United
States Constitution. While the "due process of law and equal protection of the laws"
clause of the Philippine Bill of Rights is couched in slightly different words than the
corresponding clause of the Fourteenth Amendment to the United States
Constitution, the first should be interpreted and given the same force and effect as
the latter. (Kepner vs. U.S. [1904], 195 U. S., 100; Sierra vs. Mortiga [1907], 204 U.
S.,.470; U. S. vs. Bull [1910], 15 Phil., 7.) The meaning of the Fourteenth
Amendment has been announced in classic decisions of the United States Supreme
Court. Even at the expense of restating what is so well known, these basic principles
must again be set down in order to serve as the basis of this decision.
The guaranties of the Fourteenth Amendment and so of the first paragraph of the
Philippine Bill of Rights, are universal in their application to all person within the
territorial jurisdiction, without regard to any differences of race, color, or nationality.
The word "person" includes aliens. (Yick Wo vs. Hopkins [1886], 118 U. S., 356; Truax
vs. Raich [1915], 239 U. S., 33.) Private corporations, likewise, are "persons" within
the scope of the guaranties in so far as their property is concerned. (Santa Clara
County vs. Southern Pac. R. R. Co. [1886], 118.U. S., 394; Pembina Mining Co. vs.
Pennsylvania [1888],.125 U. S., 181 Covington & L. Turnpike Road Co. vs. Sandford
[1896], 164 U. S., 578.) Classification with the end in view of providing diversity of
treatment may be made among corporations, but must be based upon some
reasonable ground and not be a mere arbitrary selection (Gulf, Colorado & Santa Fe
Railway Co. vs. Ellis [1897],.165 U. S., 150.) Examples of laws held unconstitutional
because of unlawful discrimination against aliens could be cited. Generally, these
decisions relate to statutes which had attempted arbitrarily to forbid aliens to
engage in ordinary kinds of business to earn their living. (State vs. Montgomery
[1900], 94 Maine, 192, peddling but see. Commonwealth vs. Hana [1907], 195
Mass., 262; Templar vs. Board of Examiners of Barbers [1902], 131 Mich., 254,
barbers; Yick Wo vs. Hopkins [1886], 118 U. S.,.356, discrimination against Chinese;
Truax vs. Raich [1915], 239 U. S., 33; In re Parrott [1880], 1 Fed , 481; Fraser vs.
McConway & Torley Co. [1897], 82 Fed , 257; Juniata Limestone Co. vs. Fagley
[1898], 187 Penn., 193, all relating to the employment of aliens by private
corporations.)
A literal application of general principles to the facts before us would, of course,
cause the inevitable deduction that Act No. 2761 is unconstitutional by reason of its
denial to a corporation, some of whole members are foreigners, of the equal
protection of the laws. Like all beneficient propositions, deeper research discloses
provisos. Examples of a denial of rights to aliens notwithstanding the provisions of
the Fourteenth Amendment could be cited. (Tragesser vs. Gray [1890], 73 Md., 250,
licenses to sell spirituous liquors denied to persons not citizens of the United States;
Commonwealth vs. Hana [1907], 195 Mass , 262, excluding aliens from the right to
peddle; Patsone vs. Commonwealth of Pennsylvania [1914], 232 U. S. , 138,
prohibiting the killing of any wild bird or animal by any unnaturalized foreign-born
resident; Ex parte Gilleti [1915], 70 Fla., 442, discriminating in favor of citizens with
reference to the taking for private use of the common property in fish and oysters
found in the public waters of the State; Heim vs. McCall [1915], 239 U. S.,.175, and
Crane vs. New York [1915], 239 U. S., 195, limiting employment on public works by,
or for, the State or a municipality to citizens of the United States.)
One of the exceptions to the general rule, most persistent and far reaching in
influence is, that neither the Fourteenth Amendment to the United States
Constitution, broad and comprehensive as it is, nor any other amendment, "was
designed to interfere with the power of the State, sometimes termed its `police
power,' to prescribe regulations to promote the health, peace, morals, education,
and good order of the people, and legislate so as to increase the industries of the
State, develop its resources and add to its wealth and prosperity. From the very
necessities of society, legislation of a special character, having these objects in
view, must often be had in certain districts." (Barbier vs. Connolly [1884], 113 U.S.,
27; New Orleans Gas Co. vs. Lousiana Light Co. [1885], 115 U.S., 650.) This is the
same police power which the United States Supreme Court say "extends to so
dealing with the conditions which exist in the state as to bring out of them the
greatest welfare in of its people." (Bacon vs. Walker [1907], 204 U.S., 311.) For quite
similar reasons, none of the provision of the Philippine Organic Law could could have
had the effect of denying to the Government of the Philippine Islands, acting through
its Legislature, the right to exercise that most essential, insistent, and illimitable of
powers, the sovereign police power, in the promotion of the general welfare and the
public interest. (U. S. vs. Toribio [1910], 15 Phil., 85; Churchill and Tait vs. Rafferty
[1915], 32 Phil., 580; Rubi vs. Provincial Board of Mindoro [1919], 39 Phil., 660.)
Another notable exception permits of the regulation or distribution of the public
domain or the common property or resources of the people of the State, so that use
may be limited to its citizens. (Ex parte Gilleti [1915], 70 Fla., 442; McCready vs.
Virginia [1876], 94 U. S., 391; Patsone vs. Commonwealth of Pennsylvania [1914],
232U. S., 138.) Still another exception permits of the limitation of employment in the
construction of public works by, or for, the State or a municipality to citizens of the
United States or of the State. (Atkin vs. Kansas [1903],191 U. S., 207; Heim vs.
McCall [1915], 239 U.S., 175; Crane vs. New York [1915], 239 U. S., 195.) Even as to
classification, it is admitted that a State may classify with reference to the evil to be
prevented; the question is a practical one, dependent upon experience. (Patsone vs.
Commonwealth of Pennsylvania [1914], 232 U. S., 138.)
To justify that portion of Act no. 2761 which permits corporations or companies to
obtain a certificate of Philippine registry only on condition that they be composed
wholly of citizens of the Philippine Islands or of the United States or both, as not
infringing Philippine Organic Law, it must be done under some one of the exceptions
here mentioned This must be done, moreover, having particularly in mind what is so
often of controlling effect in this jurisdiction our local experience and our peculiar
local conditions.
To recall a few facts in geography, within the confines of Philippine jurisdictional
limits are found more than three thousand islands. Literally, and absolutely,
steamship lines are, for an Insular territory thus situated, the arteries of commerce.
If one be severed, the life-blood of the nation is lost. If on the other hand these
arteries are protected, then the security of the country and the promotion of the
general welfare is sustained. Time and again, with such conditions confronting it, has
the executive branch of the Government of the Philippine Islands, always later with
the sanction of the judicial branch, taken a firm stand with reference to the presence
of undesirable foreigners. The Government has thus assumed to act for the all-
sufficient and primitive reason of the benefit and protection of its own citizens and of
the self-preservation and integrity of its dominion. (In re Patterson [1902], 1 Phil.,
93; Forbes vs. Chuoco, Tiaco and Crossfield [1910], 16 Phil., 534;.228 U.S., 549; In re
McCulloch Dick [1918], 38 Phil., 41.) Boats owned by foreigners, particularly by such
solid and reputable firms as the instant claimant, might indeed traverse the waters
of the Philippines for ages without doing any particular harm. Again, some
evilminded foreigner might very easily take advantage of such lavish hospitality to
chart Philippine waters, to obtain valuable information for unfriendly foreign powers,
to stir up insurrection, or to prejudice Filipino or American commerce. Moreover,
under the Spanish portion of Philippine law, the waters within the domestic
jurisdiction are deemed part of the national domain, open to public use. (Book II, Tit.
IV, Ch. I, Civil Code; Spanish Law of Waters of August 3, 1866, arts 1, 2, 3.) Common
carriers which in the Philippines as in the United States and other countries are, as
Lord Hale said, "affected with a public interest," can only be permitted to use these
public waters as a privilege and under such conditions as to the representatives of
the people may seem wise. (See De Villata vs. Stanley [1915], 32 Phil., 541.)
In Patsone vs. Commonwealth of Pennsylvania ([1913], 232 U.S., 138), a case herein
before mentioned, Justice Holmes delivering the opinion of the United States
Supreme Court said:
This statute makes it unlawful for any unnaturalized foreign-born resident to kill any
wild bird or animal except in defense of person or property, and `to that end' makes
it unlawful for such foreign-born person to own or be possessed of a shotgun or rifle;
with a penalty of $25 and a forfeiture of the gun or guns. The plaintiff in error was
found guilty and was sentenced to pay the abovementioned fine. The judgment was
affirmed on successive appeals. (231 Pa., 46; 79 Atl., 928.) He brings the case to this
court on the ground that the statute is contrary to the 14th Amendment and also is
in contravention of the treaty between the United States and Italy, to which latter
country the plaintiff in error belongs .
Under the 14th Amendment the objection is twofold; unjustifiably depriving the alien
of property, and discrimination against such aliens as a class. But the former really
depends upon the latter, since it hardly can be disputed that if the lawful object, the
protection of wild life (Geer vs. Connecticut, 161 U.S., 519; 40 L. ed., 793; 16 Sup.
Ct. Rep., 600), warrants the discrimination, the, means adopted for making it
effective also might be adopted. . . .
The discrimination undoubtedly presents a more difficult question. But we start with
reference to the evil to be prevented, and that if the class discriminated against is or
reasonably might be considered to define those from whom the evil mainly is to be
feared, it properly may be picked out. A lack of abstract symmetry does not matter.
The question is a practical one, dependent upon experience. . . .
The question therefore narrows itself to whether this court can say that the
legislature of Pennsylvania was not warranted in assuming as its premise for the law
that resident unnaturalized aliens were the peculiar source of the evil that it desired
to prevent. (Barrett vs. Indiana,. 229 U.S., 26, 29; 57 L. ed., 1050, 1052; 33 Sup. Ct.
Rep., 692.)
Obviously the question, so stated, is one of local experience, on which this court
ought to be very slow to declare that the state legislature was wrong in its facts
(Adams vs. Milwaukee, 228 U.S., 572, 583; 57 L. ed., 971,.977; 33 Sup. Ct. Rep.,
610.) If we might trust popular speech in some states it was right; but it is enough
that this court has no such knowledge of local conditions as to be able to say that it
was manifestly wrong. . . .
Judgment affirmed.
We are inclined to the view that while Smith, Bell & Co. Ltd., a corporation having
alien stockholders, is entitled to the protection afforded by the due-process of law
and equal protection of the laws clause of the Philippine Bill of Rights, nevertheless,
Act No. 2761 of the Philippine Legislature, in denying to corporations such as Smith,
Bell &. Co. Ltd., the right to register vessels in the Philippines coastwise trade, does
not belong to that vicious species of class legislation which must always be
condemned, but does fall within authorized exceptions, notably, within the purview
of the police power, and so does not offend against the constitutional provision.
This opinion might well be brought to a close at this point. It occurs to us, however,
that the legislative history of the United States and the Philippine Islands, and,
probably, the legislative history of other countries, if we were to take the time to
search it out, might disclose similar attempts at restriction on the right to enter the
coastwise trade, and might thus furnish valuable aid by which to ascertain and, if
possible, effectuate legislative intention.
3. The power to regulate commerce, expressly delegated to the Congress by
the Constitution, includes the power to nationalize ships built and owned in the
United States by registries and enrollments, and the recording of the muniments of
title of American vessels. The Congress "may encourage or it may entirely prohibit
such commerce, and it may regulate in any way it may see fit between these two
extremes." (U.S. vs. Craig [1886], 28 Fed., 795; Gibbons vs. Ogden [1824], 9 Wheat.,
1; The Passenger Cases [1849], 7 How., 283.)
Acting within the purview of such power, the first Congress of the United States had
not been long convened before it enacted on September 1, 1789, "An Act for
Registering and Clearing Vessels, Regulating the Coasting Trade, and for other
purposes." Section 1 of this law provided that for any ship or vessel to obtain the
benefits of American registry, it must belong wholly to a citizen or citizens of the
United States "and no other." (1 Stat. at L., 55.) That Act was shortly after repealed,
but the same idea was carried into the Acts of Congress of December 31, 1792 and
February 18, 1793. (1 Stat. at L., 287, 305.).Section 4 of the Act of 1792 provided
that in order to obtain the registry of any vessel, an oath shall be taken and
subscribed by the owner, or by one of the owners thereof, before the officer
authorized to make such registry, declaring, "that there is no subject or citizen of
any foreign prince or state, directly or indirectly, by way of trust, confidence, or
otherwise, interested in such vessel, or in the profits or issues thereof." Section 32 of
the Act of 1793 even went so far as to say "that if any licensed ship or vessel shall
be transferred to any person who is not at the time of such transfer a citizen of and
resident within the United States, ... every such vessel with her tackle, apparel, and
furniture, and the cargo found on board her, shall be forefeited." In case of alienation
to a foreigner, Chief Justice Marshall said that all the privileges of an American
bottom were ipso facto forfeited. (U.S. vs. Willings and Francis [1807], 4 Cranch, 48.)
Even as late as 1873, the Attorney-General of the United States was of the opinion
that under the provisions of the Act of December 31, 1792, no vessel in which a
foreigner is directly or indirectly interested can lawfully be registered as a vessel of
the United. States. (14 Op. Atty.-Gen. [U.S.], 340.)
These laws continued in force without contest, although possibly the Act of March 3,
1825, may have affected them, until amended by the Act of May 28, 1896 (29 Stat.
at L., 188) which extended the privileges of registry from vessels wholly owned by a
citizen or citizens of the United States to corporations created under the laws of any
of the states thereof. The law, as amended, made possible the deduction that a
vessel belonging to a domestic corporation was entitled to registry or enrollment
even though some stock of the company be owned by aliens. The right of ownership
of stock in a corporation was thereafter distinct from the right to hold the property
by the corporation (Humphreys vs. McKissock [1890], 140 U.S., 304; Queen vs.
Arnaud [1846], 9 Q. B., 806; 29 Op. Atty.-Gen. [U.S.],188.)
On American occupation of the Philippines, the new government found a substantive
law in operation in the Islands with a civil law history which it wisely continued in
force Article fifteen of the Spanish Code of Commerce permitted any foreigner to
engage in Philippine trade if he had legal capacity to do so under the laws of his
nation. When the Philippine Commission came to enact the Customs Administrative
Act (No. 355) in 1902, it returned to the old American policy of limiting the
protection and flag of the United States to vessels owned by citizens of the United
States or by native inhabitants of the Philippine Islands (Sec. 117.) Two years later,
the same body reverted to the existing Congressional law by permitting certification
to be issued to a citizen of the United States or to a corporation or company created
under the laws of the United States or of any state thereof or of the Philippine
Islands (Act No. 1235, sec. 3.) The two administration codes repeated the same
provisions with the necessary amplification of inclusion of citizens or native
inhabitants of the Philippine Islands (Adm. Code of 1916, sec. 1345; Adm. Code of
1917, sec. 1172). And now Act No. 2761 has returned to the restrictive idea of the
original Customs Administrative Act which in turn was merely a reflection of the
statutory language of the first American Congress.
Provisions such as those in Act No. 2761, which deny to foreigners the right to a
certificate of Philippine registry, are thus found not to be as radical as a first reading
would make them appear.
Without any subterfuge, the apparent purpose of the Philippine Legislature is seen to
be to enact an anti-alien shipping act. The ultimate purpose of the Legislature is to
encourage Philippine ship-building. This, without doubt, has, likewise, been the
intention of the United States Congress in passing navigation or tariff laws on
different occasions. The object of such a law, the United States Supreme Court once
said, was to encourage American trade, navigation, and ship-building by giving
American ship-owners exclusive privileges. (Old Dominion Steamship Co. vs. Virginia
[1905], 198 U.S., 299; Kent's Commentaries, Vol. 3, p. 139.)
In the concurring opinion of Justice Johnson in Gibbons vs. Ogden ([1824], 9 Wheat.,
1) is found the following:
Licensing acts, in fact, in legislation, are universally restraining acts; as, for example,
acts licensing gaming houses, retailers of spirituous liquors, etc. The act, in this
instance, is distinctly of that character, and forms part of an extensive system, the
object of which is to encourage American shipping, and place them on an equal
footing with the shipping of other nations. Almost every commercial nation reserves
to its own subjects a monopoly of its coasting trade; and a countervailing privilege in
favor of American shipping is contemplated, in the whole legislation of the United
States on this subject. It is not to give the vessel an American character, that the
license is granted; that effect has been correctly attributed to the act of her
enrollment. But it is to confer on her American privileges, as contradistinguished
from foreign; and to preserve the. Government from fraud by foreigners, in
surreptitiously intruding themselves into the American commercial marine, as well
as frauds upon the revenue in the trade coastwise, that this whole system is
projected.
The United States Congress in assuming its grave responsibility of legislating wisely
for a new country did so imbued with a spirit of Americanism. Domestic navigation
and trade, it decreed, could only be carried on by citizens of the United States. If the
representatives of the American people acted in this patriotic manner to advance
the national policy, and if their action was accepted without protest in the courts,
who can say that they did not enact such beneficial laws under the all-pervading
police power, with the prime motive of safeguarding the country and of promoting
its prosperity? Quite similarly, the Philippine Legislature made up entirely of Filipinos,
representing the mandate of the Filipino people and the guardian of their rights,
acting under practically autonomous powers, and imbued with a strong sense of
Philippinism, has desired for these Islands safety from foreign interlopers, the use of
the common property exclusively by its citizens and the citizens of the United
States, and protection for the common good of the people. Who can say, therefore,
especially can a court, that with all the facts and circumstances affecting the Filipino
people before it, the Philippine Legislature has erred in the enactment of Act No.
2761?
Surely, the members of the judiciary are not expected to live apart from active life,
in monastic seclusion amidst dusty tomes and ancient records, but, as keen
spectators of passing events and alive to the dictates of the general the national
welfare, can incline the scales of their decisions in favor of that solution which will
most effectively promote the public policy. All the presumption is in favor of the
constitutionally of the law and without good and strong reasons, courts should not
attempt to nullify the action of the Legislature. "In construing a statute enacted by
the Philippine Commission (Legislature), we deem it our duty not to give it a
construction which would be repugnant to an Act of Congress, if the language of the
statute is fairly susceptible of another construction not in conflict with the higher
law." (In re Guaria [1913], 24. Phil., 36; U.S. vs. Ten Yu [1912], 24 Phil., 1.) That is
the true construction which will best carry legislative intention into effect.
With full consciousness of the importance of the question, we nevertheless are
clearly of the opinion that the limitation of domestic ownership for purposes of
obtaining a certificate of Philippine registry in the coastwise trade to citizens of the
Philippine Islands, and to citizens of the United States, does not violate the
provisions of paragraph 1 of section 3 of the Act of Congress of August 29, 1916 No
treaty right relied upon Act No. 2761 of the Philippine Legislature is held valid and
constitutional .
The petition for a writ of mandamus is denied, with costs against the petitioner. So
ordered.
G.R. No. L-22008 November 3, 1924
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.JULIO POMAR, defendant-appellant.
Araneta and Zaragoza for appellant.
Attorney-General Villa-Real for appellee.
JOHNSON, J.:
The only question presented by this appeal is whether or not the provisions of
sections 13 and 15 of Act No. 3071 are a reasonable and lawful exercise of the police
power of the state.
It appears from the record that on the 26th day of October, 1923, the prosecuting
attorney of the City of Manila presented a complaint in the Court of First Instance,
accusing the defendant of a violation of section 13 in connection with section 15 of
Act No. 3071 of the Philippine Legislature. The complaint alleged:
That on or about the 27th day of August, 1923, and sometime prior thereto, in the
City of Manila, Philippine Islands, the said accused, being the manager and person in
charge of La Flor de la Isabela, a tobacco factory pertaining to La Campania General
de Tabacos de Filipinas, a corporation duly authorized to transact business in said
city, and having, during the year 1923, in his employ and service as cigar-maker in
said factory, a woman by the name of Macaria Fajardo, whom he granted vacation
leave which began on the 16th day of July, 1923, by reason of her pregnancy, did
then and there willfully, unlawfully, and feloniously fail and refuse to pay to said
woman the sum of eighty pesos (P80), Philippine currency, to which she was entitled
as her regular wages corresponding to thirty days before and thirty days after her
delivery and confinement which took place on the 12th day of August, 1923, despite
and over the demands made by her, the said Macaria Fajardo, upon said accused, to
do so.
To said complaint, the defendant demurred, alleging that the facts therein contained
did not constitute an offense. The demurrer was overruled, whereupon the
defendant answered and admitted at the trial all of the allegations contained in the
complaint, and contended that the provisions of said Act No. 3071, upon which the
complaint was based were illegal, unconstitutional and void.
Upon a consideration of the facts charged in the complaint and admitted by the
defendant, the Honorable C. A. Imperial, judge, found the defendant guilty of the
alleged offense described in the complaint, and sentenced him to pay a fine of P50,
in accordance with the provisions of section 15 of said Act, to suffer subsidiary
imprisonment in case of insolvency, and to pay the costs.
From that sentence the defendant appealed, and now makes the following
assignments of error: That the court erred in overruling the demurrer; in convicting
him of the crime charged in the information; and in not declaring section 13 of Act
No. 3071, unconstitutional:
Section 13 of Act No. 3071 is as follows:
Every person, firm or corporation owning or managing a factory, shop or place of
labor of any description shall be obliged to grant to any woman employed by it as
laborer who may be pregnant, thirty days vacation with pay before and another
thirty days after confinement: Provided, That the employer shall not discharge such
laborer without just cause, under the penalty of being required to pay to her wages
equivalent to the total of two months counted from the day of her discharge.
Section 15 of the same Act is as follows:
Any person, firm or corporation violating any of the provisions of this Act shall be
punished by a fine of not less than fifty pesos nor more than two hundred and fifty,
or by imprisonment for not less than ten days nor more than six months, or both, in
the discretion of the court.
In the case of firms or corporations, the presidents, directors or managers thereof or,
in their default, the persons acting in their stead, shall be criminally responsible for
each violation of the provisions of this Act.
Said section 13 was enacted by the Legislature of the Philippine Islands in the
exercise of its supposed police power, with the praiseworthy purpose of
safeguarding the health of pregnant women laborers in "factory, shop or place of
labor of any description," and of insuring to them, to a certain extent, reasonable
support for one month before and one month after their delivery. The question
presented for decision by the appeal is whether said Act has been adopted in the
reasonable and lawful exercise of the police power of the state.
In determining whether a particular law promulgated under the police power of the
state is, in fact, within said power, it becomes necessary first, to determine what
that power is, its limits and scope. Literally hundreds of decisions have been
promulgated in which definitions of the police power have been attempted. An
examination of all of said decisions will show that the definitions are generally
limited to particular cases and examples, which are as varied as they are numerous.
By reason of the constant growth of public opinion in a developing civilization, the
term "police power" has never been, and we do not believe can be, clearly and
definitely defined and circumscribed. One hundred years ago, for example, it is
doubtful whether the most eminent jurist, or court, or legislature would have for a
moment thought that, by any possibility, a law providing for the destruction of a
building in which alcoholic liquors were sold, was within a reasonable and lawful
exercise of the police power. (Mugler vs. Kansas, 123 U. S., 623.) The development
of civilization, the rapidly increasing population, the growth of public opinion, with a
desire on the part of the masses and of the government to look after and care for
the interests of the individuals of the state, have brought within the police power of
the state many questions for regulation which formerly were not so considered. In a
republican form of government public sentiment wields a tremendous influence
upon what the state may or may not do, for the protection of the health and public
morals of the people. Yet, neither public sentiment, nor a desire to ameliorate the
public morals of the people of the state will justify the promulgation of a law which
contravenes the express provisions of the fundamental law of the people the
constitutional of the state.
A definition of the police power of the state must depend upon the particular law
and the particular facts to which it is to be applied. The many definitions which have
been given by the highest courts may be examined, however, for the purpose of
giving us a compass or guide to assist us in arriving at a correct conclusion in the
particular case before us. Sir William Blackstone, one of the greatest expounders of
the common law, defines the police power as "the due regulation and domestic
order of the kingdom, whereby the inhabitants of a state, like members of a well-
governed family, are bound to conform their general behavior to the rules of
propriety, good neighborhood, and good manners, and to be decent, industrious,
and inoffensive in their respective stations." (4 Blackstone's Commentaries, 162.)
Mr. Jeremy Bentham, in his General View of Public Offenses, gives us the following
definition: "Police is in general a system of precaution, either for the prevention of
crimes or of calamities. Its business may be distributed into eight distinct branches:
(1) Police for the prevention of offenses; (2) police for the prevention of calamities;
(3) police for the prevention of endemic diseased; (4) police of charity; (5) police of
interior communications; (6) police of public amusements; (7) police for recent
intelligence; (8) police for registration."
Mr. Justice Cooley, perhaps the greatest expounder of the American Constitution,
says: "The police power is the power vested in the legislature by the constitution to
make, ordain, and establish all manner of wholesome and reasonable laws, statutes,
and ordinances, either with penalties or without, not repugnant to the constitution,
as they shall judge to be for the good and welfare of the commonwealth, and of the
subject of the same. . . ." (Cooley's Constitutional Limitations, p. 830.)
In the case of Commonwealth of Massachusetts vs. Alger (7 Cushing, 53), we find a
very comprehensive definition of the police power of the state. In that case it
appears that the colony of Massachusetts in 1647 adopted an Act to preserve the
harbor of Boston and to prevent encroachments therein. The defendant unlawfully
erected, built, and established in said harbor, and extended beyond said lines and
into and over the tide water of the Commonwealth a certain superstructure,
obstruction and encumbrance. Said Act provided a penalty for its violation of a fine
of not less than $1,000 nor more than $5,000 for every offense, and for the
destruction of said buildings, or structures, or obstructions as a public nuisance.
Alger was arrested and placed on trial for violation of said Act. His defense was that
the Act of 1647 was illegal and void, because if permitted the destruction of private
property without compensation. Mr. Justice Shaw, speaking for the court in that said,
said: "We think it is a settled principle, growing out of the nature of well-ordered civil
society, that every holder of property, however absolute and unqualified may be his
title, holds it under the implied liability that his use of it may be so regulated, that it
shall not be injurious to the equal environment of others having an equal right to the
enjoyment of their property nor injurious to the rights of the community. All property
in this commonwealth, as well that in the interior as that bordering on tide waters, is
derived directly or indirectly from the government and held subject to those general
regulations, which are necessary to the common good and general welfare. Rights of
property, like all other social and conventional rights, are subject to such reasonable
limitations in their enjoyment, as shall prevent them from being injurious, and to
such reasonable restraints and regulations established by law, as the legislature,
under the governing and controlling power vested in them by the constitution, may
think necessary and expedient." Mr. Justice Shaw further adds: ". . . The power we
allude to is rather the police power, the power vested in the legislature by the
constitution, to make, ordain and establish all manner of wholesome and reasonable
laws, statutes and ordinances, either with penalties or without, not repugnant to the
constitution, as they shall judge to be for the good and welfare of the
commonwealth, and of the subjects of the same."
This court has, in the case of Case vs. Board of Health and Heiser (24 Phil., 250), in
discussing the police power of the state, had occasion to say: ". . . It is a well settled
principle, growing out of the nature of well-ordered and civilized society, that every
holder of property, however absolute and unqualified may be his title, holds it under
the implied liability that his use of it shall not be injurious to the equal enjoyment of
others having an equal right to the enjoyment of their property, nor injurious to the
rights of the community. All property in the state is held subject to its general
regulations, which are necessary to the common good and general welfare. Rights of
property, like all other social and conventional rights, are subject to such reasonable
limitations in their enjoyment as shall prevent them from being injurious, and to
such reasonable restraints and regulations, established by law, as the legislature,
under the governing and controlling power vested in them by the constitution, may
think necessary and expedient. The state, under the police power is possessed with
plenary power to deal with all matters relating to the general health, morals, and
safety of the people, so long as it does not contravene any positive inhibition of the
organic law and providing that such power is not exercised in such a manner as to
justify the interference of the courts to prevent positive wrong and oppression."
Many other definitions have been given not only by the Supreme Court of the United
States but by the Supreme Court of every state of the Union. The foregoing
definitions, however, cover the general field of all of the definitions, found in
jurisprudence. From all of the definitions we conclude that it is much easier to
perceive and realize the existence and sources of the police power than to exactly
mark its boundaries, or prescribe limits to its exercise by the legislative department
of the government.
The most recent definition which has been called to our attention is that found in the
case of Adkins vs. Children's Hospital of the District of Columbia (261 U. S., 525). In
that case the controversy arose in this way: A children's hospital employed a number
of women at various rates of wages, which were entirely satisfactory to both the
hospital and the employees. A hotel company employed a woman as elevator
operator at P35 per month and two meals a day under healthy and satisfactory
conditions, and she did not risk to lose her position as she could not earn so much
anywhere else. Her wages were less than the minimum fixed by a board created
under a law for the purpose of fixing a minimum wage for women and children, with
a penalty providing a punishment for a failure or refusal to pay the minimum wage
fixed. The wage paid by the hotel company of P35 per month and two meals a day
was less than the minimum wage fixed by said board. By reason of the order of said
board, the hotel company, was about to discharge her, as it was unwilling to pay her
more and could not give her employment at that salary without risking the penalty
of a fine and imprisonment under the law. She brought action to enjoin the hotel
company from discharging her upon the ground that the enforcement of the
"Minimum Wage Act" would deprive her of her employment and wages without due
process of law, and that she could not get as good a position anywhere else. The
constitutionality of the Act was squarely presented to the Supreme Court of the
United States for decision.
The Supreme Court of the United States held that said Act was void on the ground
that the right to contract about one's own affairs was a part of the liberty of the
individual under the constitution, and that while there was no such thing as absolute
freedom of contract, and it was necessary subject to a great variety of restraints, yet
none of the exceptional circumstances, which at times justify a limitation upon one's
right to contract for his own services, applied in the particular case.
In the course of the decision in that case (Adkins vs. Children's Hospital of the
District of Columbia, 261 U. S., 525), Mr. Justice Sutherland, after a statement of the
fact and making reference to the particular law, said:
The statute now under consideration is attacked upon the ground that it authorizes
an unconstitutional interference with the freedom of contract including within the
guarantees of the due process clause of the 5th Amendment. That the right to
contract about one's affairs is a part of the liberty of the individual protected by this
clause is settled by the decision of this court, and is no longer open to question.
Within this liberty are contracts of employment of labor. In making such contracts,
generally speaking, the parties have an equal right to obtain from each other the
best terms they can as the result of private bargaining. (Allgeyer vs. Louisiana, 165
U. S., 578; 591; Adair vs. United States, 208 U. S., 161; Muller vs. Oregon, 208 U. S.,
412, 421.)x x x xxx xxx
The law takes account of the necessities of only one party to the contract. It ignores
the necessities of the employer by compelling him to pay not less than a certain
sum, not only whether the employee is capable of earning it, but irrespective of the
ability of his business to sustain the burden, generously leaving him, of course, the
privilege of abandoning his business as an alternative for going on at a loss. Within
the limits of the minimum sum, he is precluded, under penalty of fine and
imprisonment, from adjusting compensation to the differing merits of his employees.
It compels him to pay at least the sum fixed in any event, because the employee
needs it, but requires no service of equivalent value from the employee. It (the law)
therefore undertakes to solve but one-half of the problem. The other half is the
establishment of a corresponding standard of efficiency; and this forms no part of
the policy of the legislation, although in practice the former half without the latter
must lead to ultimate failure, in accordance with the inexorable law that no one can
continue indefinitely to take out more than he puts in without ultimately exhausting
the supply. The law . . . takes no account of periods of distress and business
depression, or crippling losses, which may leave the employer himself without
adequate means of livelihood. To the extent that the sum fixed exceeds the fair
value of the services rendered, it amounts to a compulsory exaction from the
employer for the support of a partially indigent person, for whose condition there
rests upon him no peculiar responsibility, and therefore, in effect, arbitrarily shifts to
his shoulders a burden which, if it belongs to anybody, belongs to society as a
whole.
The failure of this state which, perhaps more than any other, puts upon it the stamp
of invalidity is that it exacts from the employer an arbitrary payment for a purpose
and upon a basis having no casual connection with his business, or the contract, or
the work the employee engages to do. The declared basis, as already pointed out, is
not the value of the service rendered, but the extraneous circumstances that the
employee needs to get a prescribed sum of money to insure her subsistence, health
and morals. . . . The necessities of the employee are alone considered, and these
arise outside of the employment, are the same when there is no employment, and
as great in one occupation as in another. . . . In principle, there can be no difference
between the case of selling labor and the case of selling goods. If one goes to the
butcher, the baker, or grocer to buy food, he is morally entitled to obtain the worth
of his money, but he is not entitle to more. If what he gets is worth what he pays, he
is not justified in demanding more simply because he needs more; and the
shopkeeper, having dealt fairly and honestly in that transaction, is not concerned in
any peculiar sense with the question of his customer's necessities. Should a statute
undertake to vest in a commission power to determine the quantity of food
necessary for individual support, and require the shopkeeper, if he sell to the
individual at all, to furnish that quantity at not more than a fixed maximum, it would
undoubtedly fall before the constitutional test. The fallacy of any argument in
support of the validity of such a statute would be quickly exposed. The argument in
support of that now being considered is equally fallacious, though the weakness of it
may not be so plain. . . .
It has been said that the particular statute before us is required in the interest of
social justice for whose end freedom of contract may lawfully be subjected to
restraint. The liberty of the individual to do as he pleases, even in innocent matters,
is not absolute. That liberty must frequently yield to the common good, and the line
beyond which the power of interference may not be pressed is neither definite nor
unalterable, may be made to move, within limits not well defined, with changing
needs and circumstances.
The late Mr. Justice Harlan, in the case of Adair vs. United States (208 U. S., 161,
174), said that the right of a person to sell his labor upon such terms as he deems
proper is, in its essence, the same as the right of the purchaser of labor to prescribe
the conditions upon which he will accept such labor from the person offering to sell.
In all such particulars the employer and the employee have equality of right, and
any legislation that disturbs that equality is an arbitrary interference with the liberty
of contract, which no government can legally justify in a free land, under a
constitution which provides that no person shall be deprived of his liberty without
due process of law.
Mr. Justice Pitney, in the case of Coppage vs. Kansas (235 U. S., 1, 14), speaking for
the Supreme Court of the United States, said: ". . . Included in the right of personal
liberty and the right of private property partaking of the nature of each is the
right to make contracts for the acquisition of property. Chief among such contracts is
that of personal employment, by which labor and other services are exchange for
money or other forms of property. If this right be struck down or arbitrarily interfered
with, there is a substantial impairment of liberty in the long established
constitutional sense. The right is as essential to the laborer as to the capitalist, to
the poor as to the rich; for the vast majority of persons have no other honest way to
begin to acquire property, save by working for money."
The right to liberty includes the right to enter into contracts and to terminate
contracts. In the case of Gillespie vs. People (118 Ill., 176, 183-185) it was held that
a statute making it unlawful to discharge an employee because of his connection
with any lawful labor organization, and providing a penalty therefor, is void, since
the right to terminate a contract, subject to liability to respond in a civil action for an
unwarranted termination, is within the protection of the state and Federal
constitutions which guarantee that no person shall be deprived of life, liberty or
property without due process of law. The court said in part: ". . . One citizen cannot
be compelled to give employment to another citizen, nor can anyone be compelled
to be employed against his will. The Act of 1893, now under consideration, deprives
the employer of the right to terminate his contract with his employee. The right to
terminate such a contract is guaranteed by the organic law of the state. The
legislature is forbidden to deprive the employer or employee of the exercise of that
right. The legislature has no authority to pronounce the performance of an innocent
act criminal when the public health, safety, comfort or welfare is not interfered with.
The statute in question says that, if a man exercises his constitutional right to
terminate a contract with his employee, he shall, without a hearing, be punished as
for the commission of a crime.
xxx xxx xxx
Liberty includes not only the right to labor, but to refuse to labor, and, consequently,
the right to contract to labor or for labor, and to terminate such contracts, and to
refuse to make such contracts. The legislature cannot prevent persons, who are sui
juris, from laboring, or from making such contracts as they may see fit to make
relative to their own lawful labor; nor has it any power by penal laws to prevent any
person, with or without cause, from refusing to employ another or to terminate a
contract with him, subject only to the liability to respond in a civil action for an
unwarranted refusal to do that which has been agreed upon. Hence, we are of the
opinion that this Act contravenes those provisions of the state and Federal
constitutions, which guarantee that no person shall be deprived of life, liberty or
property without due process of law.
The statute in question is exactly analogous to the "Minimum Wage Act" referred to
above. In section 13 it will be seen that no person, firm, or corporation owning or
managing a factory shop, or place of labor of any description, can make a contract
with a woman without incurring the obligation, whatever the contract of
employment might be, unless he also promise to pay to such woman employed as a
laborer, who may become pregnant, her wages for thirty days before and thirty days
after confinement. In other words, said section creates a term or condition in every
contract made by every person, firm, or corporation with any woman who may,
during the course of her employment, become pregnant, and a failure to include in
said contract the terms fixed to a fine and imprisonment. Clearly, therefore, the law
has deprived, every person, firm, or corporation owning or managing a factory, shop
or place of labor of any description within the Philippine Islands, of his right to enter
into contracts of employment upon such terms as he and the employee may agree
upon. The law creates a term in every such contract, without the consent of the
parties. Such persons are, therefore, deprived of their liberty to contract. The
constitution of the Philippine Islands guarantees to every citizen his liberty and one
of his liberties is the liberty to contract.
It is believed and confidently asserted that no case can be found, in civilized society
and well-organized governments, where individuals have been deprived of their
property, under the police power of the state, without compensation, except in cases
where the property in question was used for the purpose of violating some legally
adopted, or constitutes a nuisance. Among such cases may be mentioned:
Apparatus used in counterfeiting the money of the state; firearms illegally
possessed; opium possessed in violation of law; apparatus used for gambling in
violation of law; buildings and property used for the purpose of violating laws
prohibiting the manufacture and sale of intoxicating liquors; and all cases in which
the property itself has become a nuisance and dangerous and detrimental to the
public health, morals and general welfare of the state. In all of such cases, and in
many more which might be cited, the destruction of the property is permitted in the
exercise of the police power of the state. But it must first be established that such
property was used as the instrument for the violation of a valid existing law. (Mugler
vs. Kansas, 123 U. S., 623; Slaughter-House Cases, 16 Wall., [U. S.], 36; Butchers'
Union, etc., Co. vs. Crescent City, etc., Co., 111 U. S., 746 John Stuart Mill "On
Liberty," 28, 29.)
Without further attempting to define what are the peculiar subjects or limits of the
police power, it may safely be affirmed, that every law for the restraint and
punishment of crimes, for the preservation of the public peace, health, and morals,
must come within this category. But the state, when providing by legislation for the
protection of the public health, the public morals, or the public safety, is subject to
and is controlled by the paramount authority of the constitution of the state, and will
not be permitted to violate rights secured or guaranteed by that instrument or
interfere with the execution of the powers and rights guaranteed to the people
under their law the constitution. (Mugler vs. Kansas, 123 U. S., 623.)
The police power of the state is a growing and expanding power. As civilization
develops and public conscience becomes awakened, the police power may be
extended, as has been demonstrated in the growth of public sentiment with
reference to the manufacture and sale of intoxicating liquors. But that power cannot
grow faster than the fundamental law of the state, nor transcend or violate the
express inhibition of the people's law the constitution. If the people desire to have
the police power extended and applied to conditions and things prohibited by the
organic law, they must first amend that law.1awphil.net
It will also be noted from an examination of said section 13, that it takes no account
of contracts for the employment of women by the day nor by the piece. The law is
equally applicable to each case. It will hardly be contended that the person, firm or
corporation owning or managing a factory, shop or place of labor, who employs
women by the day or by the piece, could be compelled under the law to pay for sixty
days during which no services were rendered.
It has been decided in a long line of decisions of the Supreme Court of the United
States, that the right to contract about one's affairs is a part of the liberty of the
individual, protected by the "due process of law" clause of the constitution. (Allgeyer
vs. Louisiana, 165 U. S., 578, 591; New York Life Ins. Co. vs. Dodge, 246 U. S., 357,
373, 374; Coppage vs. Kansas, 236 U. S., 1, 10, 14; Adair vs. United States, 208 U.
S., 161; Lochner vs. New York, 198 U. S.; 45, 49; Muller vs. Oregon, 208 U. S., 412,
421.)
The rule in this jurisdiction is, that the contracting parties may establish any
agreements, terms, and conditions they may deem advisable, provided they are not
contrary to law, morals or public policy. (Art. 1255, Civil Code.)
For all of the foregoing reasons, we are fully persuaded, under the facts and the law,
that the provisions of section 13, of Act No. 3071 of the Philippine Legislature, are
unconstitutional and void, in that they violate and are contrary to the provisions of
the first paragraph of section 3 of the Act of Congress of the United States of August
29, 1916. (Vol. 12, Public Laws, p. 238.)
Therefore, the sentence of the lower court is hereby revoked, the complaint is
hereby dismissed, and the defendant is hereby discharged from the custody of the
law, with costs de oficio. So ordered.