[ G.R. No. 13678. November 12, 1918 ] 39 Phil. 102
[ G.R. No. 13678. November 12, 1918 ]
THE UNITED STATES, PLAINTIFF AND APPELLEE, VS. PRUDENCIO SALAVERIA, DEFENDANT AND APPELLANT. D E C I S I O N
MALCOLM, J.:
The municipal council of Orion, Bataan, enacted, on February 28, 1917, an ordinance which, among other things, prohibited the playing of panguingue on days not Sundays or legal holidays, and penalized the violation thereof by a casero [housekeeper] by a fine of not less than P10 nor more than P200, and by jugadores [gamblers] by a fine of not less than P5 nor more than P200. The justice of the peace of Orion, when this ordinance went into effect, was Prudencio Salaveria, now the defendant and appellant. Notwithstanding his official station, on the evening of March 8, 1917, not a Sunday or a legal holiday, seven persons including the justice of the peace and his wife were surprised by the police while indulging in a game of panguingue in the house of the justice of the peace. The chief of police took possession of the cards, the counters (sigayes), a tray, and P2.07 in money, used in the game.
These are facts fully proven by the evidence and by the admissions of the accused. Convicted in the justice of the peace court of Orion, and again in the Court of First Instance of Bataan, Salaveria appeals to this court, making five assignments of error. The fairee assignments, of a technical nature, are without merit, and a fourth, relating to the evidence, is not sustained by the proof. The remaining assignment of error, questioning the validity of the ordinance under which the accused was convicted, requires serious consideration and final resolution. This ordinance in part reads:
“Resolution No. 28.
“Whereas, this Council is vested with certain powers by sections 2184 and 2185 of the Administrative Code;
“Whereas, it is the moral duty of this body to safeguard the tranquillity and stability of the Government and to foster the welfare and prosperity of each and all of the inhabitants of this municipality; therefore,
“Be it resolved to enact, as it hereby is enacted, the following ordinance:
“Ordinance No. 3.
“Third.—The games known as ‘Panguingue,’ ‘Manilla,’ ‘Jung-kiang,’ ‘Paris-paris,’ ‘Poker,’ ‘Tute,’ ‘Burro,’ and ‘Treinta-y-uno’ shall be allowed only on Sundays and official holidays.
“The following penalties shall be imposed upon those who play the above games on days other than Sundays and holidays:
“For the owner of the house: A fine of from Ten to Two hundrep pesos, or subsidiary imprisonment in case of insolvency at the rate of one peso a day.
“For the gamblers: A fine of from Five to Two hundred pesos each or subsidiary imprisonment in case of insolvency at the rate of one peso a day.”
The Philippine Legislature has granted to municipalities legislative powers of a dual character, one class mandatory and the other discretionary. Of the first class is the provision of the Administrative Code which makes it the duty of the municipal council, conformably with law, “to prohibit and penalize * * * gambling.” (Sec. 2188 [j], Adm. Code of 1916; sec. 2242 [j], Adm. Code of 1917.) This is a more restricted power than that found in the original Municipal Code which authorized a. municipal council to “provide against the evils of gambling, gambling houses, and disorderly houses of whatsoever sort.” (Act No. 82, sec. 39 [u].) The present municipal law, since making use of the word “gambling,” must be construed with reference to the Insular Law, Act No. 1757, relating to the same subject. Act No. 1757 in section 1 defines “gambling” as “the playing of any game for money or any representative of value or valuable consideration or thing, the result of which game depends wholly or chiefly upon chance or hazard, or the use of any mechanical inventions or contrivance to determine by chance the loser or winner of money or of any representative of value or of any valuable consideration or thing.” In the United States vs. Hilario ([1913], 24 Phil, 392), the Supreme Court went into the subject of the meaning of “gambling” in this jurisdiction, and found that it includes those games the result of which depend wholly or chiefly upon chance or hazard, and excludes those games the result of which depend wholly or chiefly upon skill, with the result that sections 621 to 625 of the Revised Ordinances of the city of Manila (734-738 of the Revised Ordinances of 1917) were found to prohibit only games of chance or hazard.
The ordinance of Orion, Bataan, merely prohibits the playing of panguingue on certain days, without describing it. Further, although this court has considered the method by which many other games are played, it has never as yet authoritatively decided whether panguingue was a game of skill or hazard. Nor was any evidence on this point introduced in the present case. However, a reading of the decision of the trial court and of official opinions of two Attorneys-General, of which we can take judicial cognizance, warrants the deduction that panguingue is not a game qf chance or hazard and is not prohibited by Act No. 1757. (See Opinions of the Attorney-General of July 11, 1904; July 25, 1904; October 10, 1905; and September 7, 1911; also Berriz, Diccionario de la Administration, p. 35.) If, therefore, we were to restrict our investigation to those portions of the Administrative Code which authorize a municipal council to prohibit and penalize gambling, there would exist grave doubt, to say the least, of the validity of ordinance No. 3 of the municipality of Orion, Bataan.
There remains for consideration a different approach to the question.
While Philippine law gives to gambling a restricted meaning, it is to be noted that, in its broader signification, gambling relates to play by certain rules at cards, dice, or other contrivance, so that one shall be the loser and the other the winner. (20 Cyc, 878; Bouvier’s Law Dictionary; People vs. Todd [1889], 51 Hun [N. Y.], 446, 451; 4 N. Y. Supp., 25.) As one example, the Charter of the town of Ruston, State of Louisiana, authorized it “to restrain, prohibit, and suppress * * * games and gambling houses and rooms * * *, and to provide for the punishment of the persons engaged in the same.” Under this power the town passed an ordinance prohibiting “all games of chance, lottery, banking games, raffling, and all other species of gambling,” indicating that there were other species of gambling in addition to games of chance. {See Town of Ruston vs. Perkins [1905], 114 La., 851.) The common law notion of gambling, which only made it an indictable offense when the play was attended by such circumstances as would in themselves amount to a riot or a nuisance or to an actual breach of the peace, has given way to statutes and ordinances designed to restrain, suppress, or control gambling.
Authority for the State or a municipality to take action to control gambling in this larger sense can be found in an analysis of what is called the police power.
Any attempt to define the police power with circumstantial precision would savor of pedantry. The United States Supreme Court tritely describes it as “the most essential of all powers, at times the most insistent, and always one of least limitable of the powers of government.” (District of Columbia vs. Brooks [1909], 214 U. S., 138.) The police power is based on the maxim “solus populi est suprema lex”—the welfare of the people is the first law. The United States Supreme Court has said that it extends “to the protection of the lives, health and property of the citizens, and to the preservation of good order and the public morals.” (Beer Co. vs. Massachusetts [1878], 97 U. S., 25; Barbier vs. Connolly [1885], 113 U. S., 27.) The Supreme Court of these Islands has said that “the police power of the state includes not only the public health and safety, but also the public welfare, protection against impositions, and generally the public’s best interest.” (U. S. vs. Pompeya [1915], 31 Phil., 245.) Recent judicial decisions incline to give a more extensive scope to the police power than the older cases. The public welfare is rightfully made the basis of construction.
Not only does the State effectuate its purposes through the exercise of the police power but the municipality does also. Like the State, the police power of a municipal corporation extends to all matters affecting the peace, order, health, morals, convenience, comfort, and safety of its citizens—the security of social order—the best and highest interests of the municipality. (Case vs. Board of Health of Manila and Heiser [1913], 24 Phil., 250.) The best considered decisions have tended to broaden the scope of action of the municipality if dealing with police offenses. Within the general police powers of a municipal corporation is the suppression of gambling. Ordinances aimed in a reasonable way at the accomplishment of this purpose are undoubtedly valid. (See U. S. vs. Pacis [1915], 31 Phil., 524; 39 L. R. A., 523, Note; Cooley’s Constitutional Limitations, 6th edition, pp. 138, 226, 742; Greenville vs. Kemmis [1900], 58 S. C, 427 [holding that under the general welfare clause a city may pass an ordinance prohibiting gambling in any private house].)
The Philippine Legislature, as before intimated, delegated to municipalities certain legislative powers of a discretionary nature. Many of these powers are named specifically. But in addition, and preceding both the specific powers of a mandatory and discretionary character, is the general power of a municipal council to enact ordinances and make regulations. It is this grant that the preamble of the ordinance of Orion assigns as authority for its enactment. Said section 2184 of the Administrative Code of 1916 (sec. 2238, Adm. Code of 1917) reads:
“The municipal council shall enact such ordinances and make such regulations, not repugnant to law, as may be necessary to carry into effect and discharge the powers and duties conferred upon it by law and such as shall seem necessary and proper to provide for the health and safety, promote the prosperity, improve the morals, peace, good order, comfort, and convenience of the municipality and the inhabitants thereof, and for the protection of property therein.”
This section, known as the general welfare clause, delegates in statutory form the police power to a municipality. As above stated, this clause has been given wide application by municipal authorities and has in its relation to the particular circumstances of the case been liberally construed by the courts. Such, it is well to recall, is the progressive view of Philippine jurisprudence.
The general welfare clause has two branches. One branch attaches itself to the main trunk of municipal authority, and relates to such ordinances and regulations as may be necessary to carry into effect and discharge the powers and duties conferred upon the municipal council by law. With this class we are not here directly concerned. The second branch of the clause is much more independent of the specific functions of the council which are enumerated by law. It authorizes such ordinances “as shall seem necessary and proper to provide for the health and safety, promote the prosperity, improve the morals, peace, good order, comfort, and convenience of the municipality and the inhabitants thereof, and for the protection of property therein.”
It is a general rule that ordinances passed by virtue of the implied power found in the general welfare clause must be reasonable, consonant with the general powers and purposes of the corporation, and not inconsistent with the laws or. policy of the State. The ordinance of the municipality of Orion does not seem in itself to be pernicious, or unreasonable or discriminatory. Its purposes evidently are to improve the morals and stimulate the industry of the people. A person is to be compelled to refrain from private acts injurious both to himself and his neighbors. These objects, to be attained by limiting the pastime to definite days, do not infringe any law of the general government.
The constitutional provision that no person shall be deprived of liberty without due process of law is not violated by this ordinance. Liberty of action by the individual is not unduly circumscribed; that is, it is not unduly circumscribed if we have in mind the correct notion of this “the greatest of all rights.” That gravest of sociological questions—How far, consistently with freedom, may the liberties of the individual member of society be subordinated to the will of the Government?—has been debated for centuries, in vain, if we can not now discount the time worn objection to any and all interference with private rights in order to effectuate the public purpose. (See Jacobson vs. Massachusetts [1905], 197 U. S., 11; State vs. Kreutzberg [1902], 58 L. R. A., 748.) Almost countless are the governmental restrictions on the citizen.
The presumption is all in favor of validity. The inhabitants of a municipality are in themselves miniature states. The action of the elected representatives of the people cannot be lightly, set aside. The councilors must, in the very nature of things, be familiar with the necessities of their particular municipality and with all the facts and circumstances which surround the subject, and necessitate action. The local legislative body, by enacting the ordinance, has in effect given notice that the regulations are essential to the well being of the people. Who is in a better position to say whether the playing of panguingue is deleterious to social order and the public interest in a certain municipality—the municipal council, or the courts? The answer is self-evident. The Judiciary should not lightly set aside legislative “action when there is not a clear invasion of personal or property rights under the guise of police regulation. (See U. S. vs. Joson [1913], 26 Phil., 1.)
President McKinley’s Instructions to the Commission still remain undisturbed by subsequent Acts of Congress dealing with Philippine affairs and yet constitute a portion of our constitutional law, as to the inviolable rule that “municipal governments * * * shall be afforded the opportunity to manage their own affairs to the fullest extent of which they are capable.” Again the same organic law says, “In the distribution of powers among the governments organized by the Commission, the presumption is always to be in favor of the smaller subdivision, so that all the powers which can properly be exercised by the municipal government shall be vested in that government * * * .” Let us never forget these principles so highly protective of local self-government.
The judiciary can very well take notice of the fact that municipalities are accustomed to enacting ordinances aimed at the regulation of gambling. The executive authorities and the Attorney-General have usually upheld the validity of such ordinances, especially those intended to restrict the playing of panguingue. (Opinions of the Attorney-General, supra; Opinion of the Executive Secretary, July 6, 1909; Indorsement of the Governor-General, July 21, 1904.) This general municipal practice, indicative of a social cancer to be eradicated, should not be discouraged by strict judicial construction.
More important still, the courts cannot but realize that gambling, in its larger sense as well as in its restricted sense, is an act beyond the pale of good morals, which, for the welfare of the Filipino people, should be exterminated, the suppression of the evil does not interfere with any of the inherent rights of citizenship. The pernicious practice is rightfully regarded as the offspring of idleness and the prolific parent of vice and immorality, demoralizing in its association and tendencies, detrimental to the best interests of society, and encouraging wastefulness, thrift-lessness, and a belief that a livelihood may be earned by other means than honest industry. To be condemned in itself, it has the further effect of causing poverty, dishonesty, fraud, and deceit. Many a man has neglected his business and mortgaged his integrity to follow the fickle Goddess of the cards. Many a woman has wasted her hours and squandered her substance at the gambling board while home and children were forgotten. It is highly proper that this pastime should be subject to the control of restraints imposed by the ordinances of local governments peculiarly afflicted by the evil. (See In re Voss [1903], 11 N. D., 540; Ex parte Tuttle [1891], 91 Cal., 589; Greenwood vs. State [1873], 6 Baxt, 567; 32 Am. Rep., 539; 12 R. C. L., 709-715.)
For the suppression of such an evil, coordinate and harmonious action must concur between the three departments of Government. A law or ordinance enacted by the legislative body must exist. Such an ordinance is before us. Vigorous executive enforcement must take place to make the law or ordinance a reality. Such activity by the police has brought this case to the courts. And finally the Judiciary, having full respect for the legislative action of the municipal council and for the prosecution by the executive officials, must, by judicial construction, equally as progressive and constructive, give effect to the action of the other two powers. Wherefore, although panguingue is not named in the general law on gambling, and although not entirely a game of chance, since it is a proper subject for regulation by municipal authorities acting under their delegated police power, whose laudable intention is to improve the public morals and promote the prosperity of their people, their action should be upheld by the courts. Ordinance No. 3 of Orion, Bataan, is found to be valid.
The culprit in this case is himself a member of the Judiciary. Instead of enforcing the law, he has scorned it. His example to the people of Orion has been pernicious in its influence. If gambling is to be suppressed, not only the weak and ignorant must be punished, but those with full knowledge of the law and the consequences of violation. We would accordingly suggest to Courts of First Instance that in all cases arising under the Gambling Law or ordinances, except for unusual circumstances, a prison sentence should be imposed, if permitted by the law or ordinance. We further suggest that, where the defendant has been found guilty and is a man of station, he be given the maximum penalty.
Applying the foregoing in this instance, it results that the defendant and appellant must be found guilty of a violation of ordinance No. 3 of the municipality of Orion, Bataan; and, in accordance therewith, shall be* sentenced to the maximum penalty of the payment of a fine of P200, or to subsidiary imprisonment in case of insolvency, with the costs of all three instances against him. So ordered.
Arellano, C. J., Torres, Araullo, and Avanceña, JJ., concur.