POLICE POWER

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-24693

July 31, 1967

ERMITA-MALATE HOTEL AND MOTEL OPERATORS ASSOCIATION, INC., HOTEL DEL

MAR INC. and GO CHIU, petitioners-appellees,
vs.
THE HONORABLE CITY MAYOR OF MANILA, respondent-appellant.
VICTOR ALABANZA, intervenor-appellee.
Panganiban, Abad and Associates Law Office for respondent-appellant.
J. M. Aruego, Tenchavez and Associates for intervenor-appellee.
FERNANDO, J.:
The principal question in this appeal from a judgment of the lower court in an action for
prohibition is whether Ordinance No. 4760 of the City of Manila is violative of the due process
clause. The lower court held that it is and adjudged it "unconstitutional, and, therefore, null and
void." For reasons to be more specifically set forth, such judgment must be reversed, there
being a failure of the requisite showing to sustain an attack against its validity.
The petition for prohibition against Ordinance No. 4760 was filed on July 5, 1963 by the
petitioners, Ermita-Malate Hotel and Motel Operators Association, one of its members, Hotel del
Mar Inc., and a certain Go Chiu, who is "the president and general manager of the second
petitioner" against the respondent Mayor of the City of Manila who was sued in his capacity as
such "charged with the general power and duty to enforce ordinances of the City of Manila and
to give the necessary orders for the faithful execution and enforcement of such ordinances."
(par. 1). It was alleged that the petitioner non-stock corporation is dedicated to the promotion
and protection of the interest of its eighteen (18) members "operating hotels and motels,
characterized as legitimate businesses duly licensed by both national and city authorities,
regularly paying taxes, employing and giving livelihood to not less than 2,500 person and
representing an investment of more than P3 million."1 (par. 2). It was then alleged that on June
13, 1963, the Municipal Board of the City of Manila enacted Ordinance No. 4760, approved on
June 14, 1963 by the then Vice-Mayor Herminio Astorga, who was at the time acting as Mayor
of the City of Manila. (par. 3).
After which the alleged grievances against the ordinance were set forth in detail. There was the
assertion of its being beyond the powers of the Municipal Board of the City of Manila to enact
insofar as it would regulate motels, on the ground that in the revised charter of the City of Manila
or in any other law, no reference is made to motels; that Section 1 of the challenged ordinance
is unconstitutional and void for being unreasonable and violative of due process insofar as it
would impose P6,000.00 fee per annum for first class motels and P4,500.00 for second class
motels; that the provision in the same section which would require the owner, manager, keeper
or duly authorized representative of a hotel, motel, or lodging house to refrain from entertaining

or accepting any guest or customer or letting any room or other quarter to any person or
persons without his filling up the prescribed form in a lobby open to public view at all times and
in his presence, wherein the surname, given name and middle name, the date of birth, the
address, the occupation, the sex, the nationality, the length of stay and the number of
companions in the room, if any, with the name, relationship, age and sex would be specified,
with data furnished as to his residence certificate as well as his passport number, if any,
coupled with a certification that a person signing such form has personally filled it up and affixed
his signature in the presence of such owner, manager, keeper or duly authorized representative,
with such registration forms and records kept and bound together, it also being provided that the
premises and facilities of such hotels, motels and lodging houses would be open for inspection
either by the City Mayor, or the Chief of Police, or their duly authorized representatives is
unconstitutional and void again on due process grounds, not only for being arbitrary,
unreasonable or oppressive but also for being vague, indefinite and uncertain, and likewise for
the alleged invasion of the right to privacy and the guaranty against self-incrimination; that
Section 2 of the challenged ordinance classifying motels into two classes and requiring the
maintenance of certain minimum facilities in first class motels such as a telephone in each
room, a dining room or, restaurant and laundry similarly offends against the due process clause
for being arbitrary, unreasonable and oppressive, a conclusion which applies to the portion of
the ordinance requiring second class motels to have a dining room; that the provision of Section
2 of the challenged ordinance prohibiting a person less than 18 years old from being accepted
in such hotels, motels, lodging houses, tavern or common inn unless accompanied by parents
or a lawful guardian and making it unlawful for the owner, manager, keeper or duly authorized
representative of such establishments to lease any room or portion thereof more than twice
every 24 hours, runs counter to the due process guaranty for lack of certainty and for its
unreasonable, arbitrary and oppressive character; and that insofar as the penalty provided for in
Section 4 of the challenged ordinance for a subsequent conviction would, cause the automatic
cancellation of the license of the offended party, in effect causing the destruction of the business
and loss of its investments, there is once again a transgression of the due process clause.
There was a plea for the issuance of preliminary injunction and for a final judgment declaring the
above ordinance null and void and unenforceable. The lower court on July 6, 1963 issued a writ
of preliminary injunction ordering respondent Mayor to refrain from enforcing said Ordinance No.
4760 from and after July 8, 1963.
In the a answer filed on August 3, 1963, there was an admission of the personal circumstances
regarding the respondent Mayor and of the fact that petitioners are licensed to engage in the
hotel or motel business in the City of Manila, of the provisions of the cited Ordinance but a
denial of its alleged nullity, whether on statutory or constitutional grounds. After setting forth that
the petition did fail to state a cause of action and that the challenged ordinance bears a
reasonable relation, to a proper purpose, which is to curb immorality, a valid and proper
exercise of the police power and that only the guests or customers not before the court could
complain of the alleged invasion of the right to privacy and the guaranty against self
incrimination, with the assertion that the issuance of the preliminary injunction ex parte was
contrary to law, respondent Mayor prayed for, its dissolution and the dismissal of the petition.
Instead of evidence being offered by both parties, there was submitted a stipulation of facts
dated September 28, 1964, which reads:
1. That the petitioners Ermita-Malate Hotel and Motel Operators Association, Inc. and
Hotel del Mar Inc. are duly organized and existing under the laws of the Philippines, both

with offices in the City of Manila, while the petitioner Go Chin is the president and
general manager of Hotel del Mar Inc., and the intervenor Victor Alabanza is a resident
of Baguio City, all having the capacity to sue and be sued;
2. That the respondent Mayor is the duly elected and incumbent City Mayor and chief
executive of the City of Manila charged with the general power and duty to enforce
ordinances of the City of Manila and to give the necessary orders for the faithful
execution and enforcement of such ordinances;
3. That the petitioners are duly licensed to engage in the business of operating hotels
and motels in Malate and Ermita districts in Manila;
4. That on June 13, 1963, the Municipal Board of the City of Manila enacted Ordinance
No. 4760, which was approved on June 14, 1963, by Vice-Mayor Herminio Astorga, then
the acting City Mayor of Manila, in the absence of the respondent regular City Mayor,
amending sections 661, 662, 668-a, 668-b and 669 of the compilation of the ordinances
of the City of Manila besides inserting therein three new sections. This ordinance is
similar to the one vetoed by the respondent Mayor (Annex A) for the reasons stated in its
4th Indorsement dated February 15, 1963 (Annex B);
5. That the explanatory note signed by then Councilor Herminio Astorga was submitted
with the proposed ordinance (now Ordinance 4760) to the Municipal Board, copy of
which is attached hereto as Annex C;
6. That the City of Manila derived in 1963 an annual income of P101,904.05 from license
fees paid by the 105 hotels and motels (including herein petitioners) operating in the City
of Manila.
1wph1.t

Thereafter came a memorandum for respondent on January 22, 1965, wherein stress was laid
on the presumption of the validity of the challenged ordinance, the burden of showing its lack of
conformity to the Constitution resting on the party who assails it, citing not only U.S. v.
Salaveria, but likewise applicable American authorities. Such a memorandum likewise refuted
point by point the arguments advanced by petitioners against its validity. Then barely two weeks
later, on February 4, 1965, the memorandum for petitioners was filed reiterating in detail what
was set forth in the petition, with citations of what they considered to be applicable American
authorities and praying for a judgment declaring the challenged ordinance "null and void and
unenforceable" and making permanent the writ of preliminary injunction issued.
After referring to the motels and hotels, which are members of the petitioners association, and
referring to the alleged constitutional questions raised by the party, the lower court observed:
"The only remaining issue here being purely a question of law, the parties, with the nod of the
Court, agreed to file memoranda and thereafter, to submit the case for decision of the Court." It
does appear obvious then that without any evidence submitted by the parties, the decision
passed upon the alleged infirmity on constitutional grounds of the challenged ordinance,
dismissing as is undoubtedly right and proper the untenable objection on the alleged lack of
authority of the City of Manila to regulate motels, and came to the conclusion that "the
challenged Ordinance No. 4760 of the City of Manila, would be unconstitutional and, therefore,
null and void." It made permanent the preliminary injunction issued against respondent Mayor
and his agents "to restrain him from enforcing the ordinance in question." Hence this appeal.

As noted at the outset, the judgment must be reversed. A decent regard for constitutional
doctrines of a fundamental character ought to have admonished the lower court against such a
sweeping condemnation of the challenged ordinance. Its decision cannot be allowed to stand,
consistently with what has hitherto been the accepted standards of constitutional adjudication, in
both procedural and substantive aspects.
Primarily what calls for a reversal of such a decision is the absence of any evidence to offset the
presumption of validity that attaches to a challenged statute or ordinance. As was expressed
categorically by Justice Malcolm: "The presumption is all in favor of validity x x x . 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 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 x x x . 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.2
It admits of no doubt therefore that there being a presumption of validity, the necessity for
evidence to rebut it is unavoidable, unless the statute or ordinance is void on its face which is
not the case here. The principle has been nowhere better expressed than in the leading case
of O'Gorman & Young v. Hartford Fire Insurance Co.,3 where the American Supreme Court
through Justice Brandeis tersely and succinctly summed up the matter thus: The statute here
questioned deals with a subject clearly within the scope of the police power. We are asked to
declare it void on the ground that the specific method of regulation prescribed is unreasonable
and hence deprives the plaintiff of due process of law. As underlying questions of fact may
condition the constitutionality of legislation of this character, the resumption of constitutionality
must prevail in the absence of some factual foundation of record for overthrowing the statute."
No such factual foundation being laid in the present case, the lower court deciding the matter on
the pleadings and the stipulation of facts, the presumption of validity must prevail and the
judgment against the ordinance set aside.
Nor may petitioners assert with plausibility that on its face the ordinance is fatally defective as
being repugnant to the due process clause of the Constitution. The mantle of protection
associated with the due process guaranty does not cover petitioners. This particular
manifestation of a police power measure being specifically aimed to safeguard public morals is
immune from such imputation of nullity resting purely on conjecture and unsupported by
anything of substance. To hold otherwise would be to unduly restrict and narrow the scope of
police power which has been properly characterized as the most essential, insistent and the
least limitable of powers,4extending as it does "to all the great public needs."5 It would be, to
paraphrase another leading decision, to destroy the very purpose of the state if it could be
deprived or allowed itself to be deprived of its competence to promote public health, public
morals, public safety and the genera welfare.6 Negatively put, police power is "that inherent and
plenary power in the State which enables it to prohibit all that is hurt full to the comfort, safety,
and welfare of society.7
There is no question but that the challenged ordinance was precisely enacted to minimize
certain practices hurtful to public morals. The explanatory note of the Councilor Herminio
Astorga included as annex to the stipulation of facts, speaks of the alarming increase in the rate
of prostitution, adultery and fornication in Manila traceable in great part to the existence of
motels, which "provide a necessary atmosphere for clandestine entry, presence and exit" and

thus become the "ideal haven for prostitutes and thrill-seekers." The challenged ordinance then
proposes to check the clandestine harboring of transients and guests of these establishments
by requiring these transients and guests to fill up a registration form, prepared for the purpose,
in a lobby open to public view at all times, and by introducing several other amendatory
provisions calculated to shatter the privacy that characterizes the registration of transients and
guests." Moreover, the increase in the licensed fees was intended to discourage
"establishments of the kind from operating for purpose other than legal" and at the same time, to
increase "the income of the city government." It would appear therefore that the stipulation of
facts, far from sustaining any attack against the validity of the ordinance, argues eloquently for
it.
It is a fact worth noting that this Court has invariably stamped with the seal of its approval,
ordinances punishing vagrancy and classifying a pimp or procurer as a vagrant;8 provide a
license tax for and regulating the maintenance or operation of public dance halls;9 prohibiting
gambling;10 prohibiting jueteng;11 and monte;12prohibiting playing of panguingui on days other
than Sundays or legal holidays;13 prohibiting the operation of pinball machines;14 and prohibiting
any person from keeping, conducting or maintaining an opium joint or visiting a place where
opium is smoked or otherwise used,15 all of which are intended to protect public morals.
On the legislative organs of the government, whether national or local, primarily rest the
exercise of the police power, which, it cannot be too often emphasized, is the power to prescribe
regulations to promote the health, morals, peace, good order, safety and general welfare of the
people. In view of the requirements of due process, equal protection and other applicable
constitutional guaranties however, the exercise of such police power insofar as it may affect the
life, liberty or property of any person is subject to judicial inquiry. Where such exercise of police
power may be considered as either capricious, whimsical, unjust or unreasonable, a denial of
due process or a violation of any other applicable constitutional guaranty may call for correction
by the courts.
We are thus led to considering the insistent, almost shrill tone, in which the objection is raised to
the question of due process.16 There is no controlling and precise definition of due process. It
furnishes though a standard to which the governmental action should conform in order that
deprivation of life, liberty or property, in each appropriate case, be valid. What then is the
standard of due process which must exist both as a procedural and a substantive requisite to
free the challenged ordinance, or any governmental action for that matter, from the imputation of
legal infirmity sufficient to spell its doom? It is responsiveness to the supremacy of reason,
obedience to the dictates of justice. Negatively put, arbitrariness is ruled out and unfairness
avoided. To satisfy the due process requirement, official action, to paraphrase Cardozo, must
not outrun the bounds of reason and result in sheer oppression. Due process is thus hostile to
any official action marred by lack of reasonableness. Correctly it has been identified as freedom
from arbitrariness. It is the embodiment of the sporting idea of fair play.17 It exacts fealty "to
those strivings for justice" and judges the act of officialdom of whatever branch "in the light of
reason drawn from considerations of fairness that reflect [democratic] traditions of legal and
political thought."18 It is not a narrow or "technical conception with fixed content unrelated to
time, place and circumstances,"19 decisions based on such a clause requiring a "close and
perceptive inquiry into fundamental principles of our society."20 Questions of due process are not
to be treated narrowly or pedantically in slavery to form or phrases.21
It would thus be an affront to reason to stigmatize an ordinance enacted precisely to meet what
a municipal lawmaking body considers an evil of rather serious proportion an arbitrary and

capricious exercise of authority. It would seem that what should be deemed unreasonable and
what would amount to an abdication of the power to govern is inaction in the face of an admitted
deterioration of the state of public morals. To be more specific, the Municipal Board of the City
of Manila felt the need for a remedial measure. It provided it with the enactment of the
challenged ordinance. A strong case must be found in the records, and, as has been set forth,
none is even attempted here to attach to an ordinance of such character the taint of nullity for an
alleged failure to meet the due process requirement. Nor does it lend any semblance even of
deceptive plausibility to petitioners' indictment of Ordinance No. 4760 on due process grounds
to single out such features as the increased fees for motels and hotels, the curtailment of the
area of freedom to contract, and, in certain particulars, its alleged vagueness.
Admittedly there was a decided increase of the annual license fees provided for by the
challenged ordinance for hotels and motels, 150% for the former and over 200% for the latter,
first-class motels being required to pay a P6,000 annual fee and second-class motels, P4,500
yearly. It has been the settled law however, as far back as 1922 that municipal license fees
could be classified into those imposed for regulating occupations or regular enterprises, for the
regulation or restriction of non-useful occupations or enterprises and for revenue purposes
only.22 As was explained more in detail in the above Cu Unjieng case: (2) Licenses for nonuseful occupations are also incidental to the police power and the right to exact a fee may be
implied from the power to license and regulate, but in fixing amount of the license fees the
municipal corporations are allowed a much wider discretion in this class of cases than in the
former, and aside from applying the well-known legal principle that municipal ordinances must
not be unreasonable, oppressive, or tyrannical, courts have, as a general rule, declined to
interfere with such discretion. The desirability of imposing restraint upon the number of persons
who might otherwise engage in non-useful enterprises is, of course, generally an important
factor in the determination of the amount of this kind of license fee. Hence license fees clearly in
the nature of privilege taxes for revenue have frequently been upheld, especially in of licenses
for the sale of liquors. In fact, in the latter cases the fees have rarely been declared
unreasonable.23
Moreover in the equally leading case of Lutz v. Araneta24 this Court affirmed the doctrine earlier
announced by the American Supreme Court that taxation may be made to implement the state's
police power. Only the other day, this Court had occasion to affirm that the broad taxing
authority conferred by the Local Autonomy Act of 1959 to cities and municipalities is sufficiently
plenary to cover a wide range of subjects with the only limitation that the tax so levied is for
public purposes, just and uniform.25
As a matter of fact, even without reference to the wide latitude enjoyed by the City of Manila in
imposing licenses for revenue, it has been explicitly held in one case that "much discretion is
given to municipal corporations in determining the amount," here the license fee of the operator
of a massage clinic, even if it were viewed purely as a police power measure. 26 The discussion
of this particular matter may fitly close with this pertinent citation from another decision of
significance: "It is urged on behalf of the plaintiffs-appellees that the enforcement of the
ordinance could deprive them of their lawful occupation and means of livelihood because they
can not rent stalls in the public markets. But it appears that plaintiffs are also dealers in
refrigerated or cold storage meat, the sale of which outside the city markets under certain
conditions is permitted x x x . And surely, the mere fact, that some individuals in the community
may be deprived of their present business or a particular mode of earning a living cannot
prevent the exercise of the police power. As was said in a case, persons licensed to pursue
occupations which may in the public need and interest be affected by the exercise of the police

power embark in these occupations subject to the disadvantages which may result from the
legal exercise of that power."27
Nor does the restriction on the freedom to contract, insofar as the challenged ordinance makes
it unlawful for the owner, manager, keeper or duly authorized representative of any hotel, motel,
lodging house, tavern, common inn or the like, to lease or rent room or portion thereof more
than twice every 24 hours, with a proviso that in all cases full payment shall be charged, call for
a different conclusion. Again, such a limitation cannot be viewed as a transgression against the
command of due process. It is neither unreasonable nor arbitrary. Precisely it was intended to
curb the opportunity for the immoral or illegitimate use to which such premises could be, and,
according to the explanatory note, are being devoted. How could it then be arbitrary or
oppressive when there appears a correspondence between the undeniable existence of an
undesirable situation and the legislative attempt at correction. Moreover, petitioners cannot be
unaware that every regulation of conduct amounts to curtailment of liberty which as pointed out
by Justice Malcolm cannot be absolute. Thus: "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 x x x The liberty of the citizen may be restrained in the interest of the
public health, or of the public order and safety, or otherwise within the proper scope of the police
power."28
A similar observation was made by Justice Laurel: "Public welfare, then, lies at the bottom of the
enactment of said law, and the state in order to promote the general welfare may interfere with
personal liberty, with property, and with business and occupations. Persons and property may
be subjected to all kinds of restraints and burdens, in order to secure the general comfort,
health, and prosperity of the state x x x To this fundamental aim of our Government the rights of
the individual are subordinated. Liberty is a blessing without which life is a misery, but liberty
should not be made to prevail over authority because then society will fall into anarchy. Neither
should authority be made to prevail over liberty because then the individual will fall into slavery.
The citizen should achieve the required balance of liberty and authority in his mind through
education and personal discipline, so that there may be established the resultant equilibrium,
which means peace and order and happiness for all.29
It is noteworthy that the only decision of this Court nullifying legislation because of undue
deprivation of freedom to contract, People v. Pomar,30 no longer "retains its virtuality as a living
principle. The policy of laissez faire has to some extent given way to the assumption by the
government of the right of intervention even in contractual relations affected with public
interest.31 What may be stressed sufficiently is that if the liberty involved were freedom of the
mind or the person, the standard for the validity of governmental acts is much more rigorous
and exacting, but where the liberty curtailed affects at the most rights of property, the
permissible scope of regulatory measure is wider.32 How justify then the allegation of a denial of
due process?
Lastly, there is the attempt to impugn the ordinance on another due process ground by invoking
the principles of vagueness or uncertainty. It would appear from a recital in the petition itself that
what seems to be the gravamen of the alleged grievance is that the provisions are too detailed
and specific rather than vague or uncertain. Petitioners, however, point to the requirement that a

guest should give the name, relationship, age and sex of the companion or companions as
indefinite and uncertain in view of the necessity for determining whether the companion or
companions referred to are those arriving with the customer or guest at the time of the registry
or entering the room With him at about the same time or coming at any indefinite time later to
join him; a proviso in one of its sections which cast doubt as to whether the maintenance of a
restaurant in a motel is dependent upon the discretion of its owners or operators; another
proviso which from their standpoint would require a guess as to whether the "full rate of
payment" to be charged for every such lease thereof means a full day's or merely a half-day's
rate. It may be asked, do these allegations suffice to render the ordinance void on its face for
alleged vagueness or uncertainty? To ask the question is to answer it. From Connally v.
General Construction Co.33 toAdderley v. Florida,34 the principle has been consistently upheld
that what makes a statute susceptible to such a charge is an enactment either forbidding or
requiring the doing of an act that men of common intelligence must necessarily guess at its
meaning and differ as to its application. Is this the situation before us? A citation from Justice
Holmes would prove illuminating: "We agree to all the generalities about not supplying criminal
laws with what they omit but there is no canon against using common sense in construing laws
as saying what they obviously mean."35
That is all then that this case presents. As it stands, with all due allowance for the arguments
pressed with such vigor and determination, the attack against the validity of the challenged
ordinance cannot be considered a success. Far from it. Respect for constitutional law principles
so uniformly held and so uninterruptedly adhered to by this Court compels a reversal of the
appealed decision.
Wherefore, the judgment of the lower court is reversed and the injunction issued lifted forthwith.
With costs.

G.R. No. 10572, Churchill and Tait v. Rafferty, 32 Phil. 580

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
December 21, 1915
G.R. No. 10572
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."
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:
xxx
2. In all civil actions which involve the ... legality of any tax, impost, or
assessment, . . . .
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 ofAct 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.
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 ofcertiorari, 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 ofhabeas
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 wellfounded 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 asdamnum 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.
Arellano, C.J., Torres, Carson, and Araullo, JJ., concur.
DECISION ON THE MOTION FOR A REHEARING, JANUARY 24, 1916.
TRENT, J.:
Counsel for the plaintiffs call our attention to the case of Ex parte Young (209
U.S., 123); and say that they are of the opinion that this case "is the absolutely
determinative of the question of jurisdiction in injunctions of this kind." We did
not refer to this case in our former opinion because we were satisfied that the
reasoning of the case is not applicable to section 100 (b), 139 and 140 of Act No.
2339. The principles announced in the Young case are stated as follows: "It may
therefore be said that when the penalties for disobedience are by fines so enormous
and imprisonment so severe as to intimidate the company and its officers from
resorting to the courts to test the validity of the legislation, the result is the same as
if the law in terms prohibited the company from seeking judicial construction of
laws which deeply affect its rights.
It is urged that there is no principle upon which to base the claim that a
person is entitled to disobey a statute at least once, for the purpose of testing

its validity without subjecting himself to the penalties for disobedience

provided by the statute in case it is valid. This is not an accurate statement of
the case. Ordinarily a law creating offenses in the nature of misdemeanors or
felonies relates to a subject over which the jurisdiction of the legislature is
complete in any event. In these case, however, of the establishment of
certain rates without any hearing, the validity of such rates necessarily
depends upon whether they are high enough to permit at least some return
upon the investment (how much it is not now necessary to state), and an
inquiry as to that fact is a proper subject of judicial investigation. If it turns
out that the rates are too low for that purpose, then they are illegal. Now, to
impose upon a party interested the burden of obtaining a judicial decision of
such a question (no prior hearing having ever been given) only upon the
condition that, if unsuccessful, he must suffer imprisonment and pay fines as
provided in these acts, is, in effect, to close up all approaches to the courts,
and thus prevent any hearing upon the question whether the rates as
provided by the acts are not too low, and therefore invalid. The distinction is
obvious between a case where the validity of the acts depends upon the
existence of a fact which can be determined only after investigation of a very
complicated and technical character, and the ordinary case of a statute upon
a subject requiring no such investigation and over which the jurisdiction of
the legislature is complete in any event.
An examination of the sections of our Internal Revenue Law and of the
circumstances under which and the purposes for which they were enacted, will
show that, unlike the statutes under consideration in the above cited case, their
enactment involved no attempt on the part of the Legislature to prevent dissatisfied
taxpayers "from resorting to the courts to test the validity of the legislation;" no
effort to prevent any inquiry as to their validity. While section 139 does prevent the
testing of the validity of subsection (b) of section 100 in injunction suits instituted
for the purpose of restraining the collection of internal revenue taxes, section 140
provides a complete remedy for that purpose. And furthermore, the validity of

subsection (b) does not depend upon "the existence of a fact which can be
determined only after investigation of a very complicated and technical character,"
but the jurisdiction of the Legislature over the subject with which the subsection
deals "is complete in any event." The judgment of the court in the Young case rests
upon the proposition that the aggrieved parties had no adequate remedy at law.
Neither did we overlook the case of General Oil Co. vs. Crain (209 U.S.,
211), decided the same day and citing Ex parte Young, supra. In that case
the plaintiff was a Tennessee corporation, with its principal place of business
in Memphis, Tennessee. It was engaged in the manufacture and sale of coal
oil, etc. Its wells and plant were located in Pennsylvania and Ohio. Memphis
was not only its place of business, at which place it sold oil to the residents
of Tennessee, but also a distributing point to which oils were shipped from
Pennsylvania and Ohio and unloaded into various tanks for the purpose of
being forwarded to the Arkansas, Louisiana, and Mississippi customers.
Notwithstanding the fact that the company separated its oils, which were
designated to meet the requirements of the orders from those States, from the
oils for sale in Tennessee, the defendant insisted that he had a right, under
the Act of the Tennessee Legislature, approved April 21, 1899, to inspect all
the oils unlocated in Memphis, whether for sale in that State or not, and
charge and collect for such inspection a regular fee of twenty-five cents per
barrel. The company, being advised that the defendant had no such right,
instituted this action in the inferior States court for the purpose of enjoining
the defendant, upon the grounds stated in the bill, from inspecting or
attempting to inspect its oils. Upon trial, the preliminary injunction which
had been granted at the commencement of the action, was continued in
force. Upon appeal, the supreme court of the State of Tennessee decided that
the suit was one against the State and reversed the judgment of the
Chancellor. In the Supreme Court of the United States, where the case was
reviewed upon a writ of error, the contentions of the parties were stated by
the court as follows: "It is contended by defendant in error that this court is

without jurisdiction because no matter sought to be litigated by plaintiff in

error was determined by the Supreme Court of Tennessee. The court simply
held, it is paid, that, under the laws of the State, it had no jurisdiction to
entertain the suit for any purpose. And it is insisted "hat this holding
involved no Federal question, but only the powers and jurisdiction of the
courts of the State of Tennessee, in respect to which the Supreme Court of
Tennessee is the final arbiter."
Opposing these contentions, plaintiff in error urges that whether a suit is one
against a State cannot depend upon the declaration of a statute, but depends
upon the essential nature ofthe suit, and that the Supreme Court recognized
that the statute "aded nothing to the axiomatic principle that the State, as a
sovereign, is not subject to suit save by its own consent."And it is hence
insisted that the court by dismissing the bill gave effect to the law which was
attacked. It is further insisted that the bill undoubtedly present rights under
the Constitution of the United States and conditions which entitle plaintiff in
error to an injunction for the protection of such rights, and that a statute of
the State which operates to deny such rights, or such relief, `is itself in
conflict with the Constitution of the United States."
That statute of Tennessee, which the supreme court of that State construed and
held to be prohibitory of the suit, was an act passed February 28, 1873, which
provides: "That no court in the State of Tennessee has, nor shall hereafter have,
any power, jurisdiction, or authority to entertain any suit against the State, or any
officer acting by the authority of the State, with a view to reach the State, its
treasury, funds or property; and all such suits now pending, or hereafter brought,
shall be dismissed as to the State, or such officer, on motion, plea or demurrer of
the law officer of the State, or counsel employed by the State."
The Supreme Court of the United States, after reviewing many cases, said:
"Necessarily, to give adequate protection to constitutional rights a distinction must
be made between valid and invalid state laws, as determining the character of the
suit against state officers. And the suit at bar illustrates the necessity. If a suit

against state officer is precluded in the national courts by the Eleventh Amendment
to the Constitution, and may be forbidden by a State to its courts, as it is contended
in the case at bar that it may be, without power of review by this court, it must be
evident that an easy way is open to prevent the enforcement of many provisions of
the Constitution; and the Fourteenth Amendment, which is directed at state action,
could be nullified as to much of its operation. ... It being then the right of a party to
be protected against a law which violates a constitutional right, whether by its
terms or the manner of its enforcement, it is manifest that a decision which denies
such protection gives effect to the law, and the decision is reviewable by this
court."
The court then proceeded to consider whether the law of 1899 would, if
administered against the oils in question, violate any constitutional right of the
plaintiff and after finding and adjudging that the oils were not in movement
through the States, that they had reached the destination of their first shipment, and
were held there, not in necessary delay at means of transportation but for the
business purposes and profit of the company, and resting its judgment upon the
taxing power of the State, affirmed the decree of the supreme court of the State of
Tennessee.
From the foregoing it will be seen that the Supreme Court of Tennessee dismissed
the case for want of jurisdiction because the suit was one against the State, which
was prohibited by the Tennessee Legislature. The Supreme Court of the United
States took jurisdiction of the controversy for the reasons above quoted and
sustained the Act of 1899 as a revenue law.
The case of Tennessee vs. Sneed (96 U.S., 69), and Shelton vs. Platt (139 U.S.,
591), relied upon in our former opinion, were not cited in General Oil
Co. vs. Crain, supra, because the questions presented and the statutes under
consideration were entirely different. The Act approved March 31, 1873, expressly
prohibits the courts from restraining the collection of any tax, leaving the
dissatisfied taxpayer to his exclusive remedy payment under protest and suit to

recover while the Act approved February 28, 1873, prohibits suits against the
State.
In upholding the statute which authorizes the removal of signboards or billboards
upon the sole ground that they are offensive to the sight, we recognized the fact
that we are not in harmony with various state courts in the American Union. We
have just examined the decision of the Supreme Court of the State of Illinois in the
recent case (October [December], 1914) of Thomas Cusack Co.vs. City of Chicago
(267 Ill., 344), wherein the court upheld the validity of a municipal ordinances,
which reads as follows: "707. Frontage consents required. It shall be unlawful for
any person, firm or corporation to erect or construct any bill-board or sign-board in
any block on any public street in which one-half of the buildings on both sides of
the street are used exclusively for residence purposes, without first obtaining the
consent, in writing, of the owners or duly authorized agents of said owners owning
a majority of the frontage of the property, on both sides of the street, in the block in
which such bill-board or sign-board is to be erected, constructed or located. Such
written consent shall be filed with the commissioner of buildings before a permit
shall be issued for the erection, construction or location of such bill-board or signboard."
The evidence which the Illinois court relied upon was the danger of fires, the fact
that billboards promote the commission of various immoral and filthy acts by
disorderly persons, and the inadequate police protection furnished to residential
districts. The last objection has no virtue unless one or the other of the other
objections are valid. If the billboard industry does, in fact, promote such municipal
evils to noticeable extent, it seems a curious inconsistency that a majority of the
property owners on a given block may legalize the business. However, the decision
is undoubtedly a considerable advance over the views taken by other high courts in
the United States and distinguishes several Illinois decisions. It is an advance
because it permits the suppression of billboards where they are undesirable. The
ordinance which the court approved will no doubt cause the virtual suppression of
the business in the residential districts. Hence, it is recognized that under certain
circumstances billboards may be suppressed as an unlawful use of private property.

Logically, it would seem that the premise of fact relied upon is not very solid.
Objections to the billboard upon police, sanitary, and moral grounds have been, as
pointed out by counsel for Churchill and Tait, duly considered by numerous high
courts in the United States, and, with one exception, have been rejected as without
foundation. The exception is the Supreme Court of Missouri, which advances
practically the same line of reasoning as has the Illinois court in this recent case.
(St. Louis Gunning Advt. Co. vs. City of St. Louis, 137 S. W., 929.) In fact, the
Illinois court, in Haller Sign Works vs. Physical Culture Training School (249 Ill.,
436), "distinguished" in the recent case, said: "There is nothing inherently
dangerous to the health or safety of the public in structures that are properly
erected for advertising purposes."
If a billboard is so constructed as to offer no room for objections on sanitary or
moral grounds, it would seem that the ordinance above quoted would have to be
sustained upon the very grounds which we have advanced in sustaining our own
statute.
It might be well to note that billboard legislation in the United States is attempting
to eradicate a business which has already been firmly established. This business
was allowed to expand unchecked until its very extent called attention to its
objectionable features. In the Philippine Islands such legislation has almost
anticipated the business, which is not yet of such proportions that it can be said to
be fairly established. It may be that the courts in the United States have committed
themselves to a course of decisions with respect to billboard advertising, the full
consequences of which were not perceived for the reason that the development of
the business has been so recent that the objectionable features of it did not present
themselves clearly to the courts nor to the people. We, in this country, have the
benefit of the experience of the people of the United States and may make our
legislation preventive rather than corrective. There are in this country, moreover,
on every hand in those districts where Spanish civilization has held sway for so
many centuries, examples of architecture now belonging to a past age, and which
are attractive not only to the residents of the country but to visitors. If the billboard

industry is permitted without constraint or control to hide these historic sites from
the passerby, the country will be less attractive to the tourist and the people will
suffer a district economic loss.
The motion for a rehearing is therefore denied.
Arellano, C.J., Torres, and Carson, JJ., concur.