Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-13678

November 12, 1918

THE UNITED STATES, plaintiff-appellee,

vs.
PRUDENCIO SALAVERIA, defendant-appellant.
Jose R. Varela for appellant.
Office of the Solicitor-General Paredes for appellee.

MALCOLM, J.:
The municipal council of Orion, Bataan, enacted, on February 28, 1917, an ordinance which, among
other things, prohibited the playing of panguingue on days not Sundays or legal holidays, and
penalized the violation thereof by a casero [housekeeper] by a fine of not less than P10 nor more
than P200, and by jugadores [gamblers] by a fine of not less than P5 nor more than P200. The
justice of the peace of Orion, when this ordinance went into effect, was Prudencio Salaveria, now the
defendant and appellant. Notwithstanding his official station, on the evening of March 8, 1917, not a
Sunday or legal holiday, seven persons including the justice of the peace an his wife were surprised
by the police while indulging in a game of panguingue in the house of the justice of the peace. The
chief of police took possession of the cards, the counters (sigayes), a tray, an P2.07 in money, used
in the game.
These are facts fully proven by the evince and by the admissions of the accused. Convicted in the
justice of the peace court of Orion, and again in the Court of First Instance of Bataan, Salaveria
appeals to this court, making five assignments of error. The three assignments, of a technical nature,
are without merit, and a fourth, relating to the evidence, is not sustained by the proof. The remaining
assignment of error, questioning the validity of the ordinance under which the accused was
convicted, requires serious consideration and final resolution. This ordinance in part reads:
RESOLUTION NO. 28
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Whereas, this Council is vested with certain powers by sections 2184 and 2185 of the
Administrative Code;
Whereas, it is the moral duty of this body to safeguard the tranquillity and stability of the
Government and to foster the welfare and prosperity of each an all of the inhabitants of this
municipality; therefore,
Be it resolved to enact, as it hereby is enacted, the following ordinance:
Ordinance No. 3

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Third. The games known as "Panguingue" "Manilla," "Jung-kiang," "Paris-Paris," "Poker,"

"Tute," "Burro," and "Treinta-y-uno" shall be allowed only on Sundays an official holidays.
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The following penalties shall be imposed upon those who play the above games on days
other than Sundays and official holidays:
For the owner of the house: A fine of from Ten to Two hundred pesos, or subsidiary
imprisonment in case of insolvency at the rate of one peso a day.
For the gamblers: A fine of from Five to Two hundred pesos each or subsidiary imprisonment
in case of insolvency at the rate of one peso a day.
The Philippine Legislature has granted to municipalities legislative powers of a dual character, one
class mandatory an the other discretionary. Of the first class is the provision of the Administrative
Code which makes it the duty of the municipal council, conformably with law, "to prohibit and
penalize . . . gambling." (Sec. 2188 [i], Adm. Code of 1916; sec. 2242 [i], Adm. Code of 1917.) This
is a more restricted power than that found in the original Municipal Code which authorized a
municipal council to "provide against the evils of gambling, gambling houses, and disorderly houses
of whatsoever sort." (Act No. 82, sec. 39 [u].) The present municipal law, since making use of the
word "gambling," must be construed with reference to the Insular Law, Act No. 1757, relating to the
same subject. Act No. 1757 in section 1 defines "gambling" as "the paying of any game for money or
any representative of value or valuable consideration or thing, the result of which game depends
wholly or chiefly upon chance or hazard, or the use of any mechanical inventions or contrivance to
determine by chance the loser or winner of money or of any representative of value or of any
valuable consideration or thing." In the United States vs. Hilario ([1913], 24 Phil., 392), the Supreme
Court went into the subject of the meaning of "gambling" in this jurisdiction, and found that it includes
those games the result of which depend wholly or chiefly upon chance or hazard, and excludes
those games the result of which depend wholly or chiefly upon skill, with the result that sections 621
to 625 of the Revise Ordinances of the city of Manila (734-738 of the Revised Ordinances of 1917)
were found to prohibit only games of chance or hazard.
The ordinance of Orion, Bataan, merely prohibits the playing of panguingue on certain days, without
describing it. Further, although this court has considered the method by which many other games
are played, it has never as yet authoritatively decided whether panguingue was a game of skill or
hazard. Nor was any evidence on this point introduced in the present case. However, a reading of
the decision of the trial court and of official opinions of two Attorneys-General, of which we can take
judicial cognizance, warrants the deduction that panguingue is not a game of chance or hazard and
is not prohibited by Act No. 1757. (See Opinions of the Attorney-General of July 11, 1904; July 25,
1904; October 10, 1905; and September 7, 1911; also Berriz, Diccionario de la Administracion, p.
35.) If, therefore, we were to restrict our investigation to those portions of the Administrative Code
which authorize a municipal council to prohibit and penalize gambling, there would exist grave doubt,
to say the least, of the validity of ordinance No. 3 of the municipality of Orion, Bataan.
There remains for consideration a different approach to the question.
While Philippine law gives to gambling a restricted meaning, it is to be noted that, in its broader
signification, gambling relates to play by certain rules at cards, dice, or other contrivance, so that one
shall be the loser an the other the winner. (20 Cyc., 878; Bouvier's Law Dictionary; People vs. Todd

[1889], 51 Hun [N. Y.], 446 451; 4 N. Y. Supp., 25.) As one example the Charter of the town of
Ruston, State of Louisiana, authorized it "to restrain, prohibit, an suppress . . . games and gambling
houses and rooms . . ., and to provide for the punishment of the persons engaged in the same."
Under this power the town passed an ordinance prohibiting "all games of chance, lottery, banking
games, raffling, and all other species of gambling," indicating that there were other species of
gambling in addition to games of chance. (See Town of Ruston vs. Perkins [1905], 114 La., 851.)
The common law notion of gambling, which only made it an indictable offense when the play was
attended by such circumstances as would in themselves amount to a riot or a nuisance or to an
actual breach of the peace, has given way to statutes and ordinances designed to restrain,
suppress, or control gambling.
Authority for the State or a municipality to take action to control gambling in this larger sense can be
found in an analysis of what is calle the police power.
Any attempt to define the police power with circumstantial precision would savor of pedantry. The
United States Supreme Court tritely describes it as "the most essential of all powers, at times the
most insistent, an always one of least limitable of the powers of government." (District of
Columbia vs. Brooks [1909], 214 U.S., 138.) The police power is based on the maxim "salus populi
est suprema lex" the welfare of the people is the first law. The United States Supreme Court has
said that it extends "to the protection of the lives, health and property of the citizens, and to
the preservation of good order and the public morals." (Beer Co. vs. Massachusetts [1878] , 97 U.S.,
25; Barbier vs. Connolly [1885], 113 U.S., 27.) The Supreme Court of these Islands has said that it
extends "the police power of the state includes not only the public health safety, but also the public
welfare, protection against impositions, and generally the public's best interest." (U.S. vs. Pompeya
[1915], 31 Phil., 245.) Recent judicial decisions incline to give a more extensive scope to the police
power that the older cases. The public welfare is rightfully made the basis of construction.
Not only does the State effectuate its purposes through the exercise of the police power but the
municipality does also. Like the State, the police power of a municipal corporation extends to all
matters affecting the peace, order, health, morals, convenience, comfort, and safety of its citizens
the security of social order the best and highest interests of the municipality. (Case vs. Board of
Health of Manila and Heiser [1913], 24 Phil., 250.) The best considered decisions have tended to
broaden the scope of action of the municipality in dealing with police offenses. Within the general
police powers of a municipal corporation is the suppression of gambling. Ordinances aimed in a
reasonable way at the accomplishment of this purpose are undoubtedly valid. (See U.S. vs. Pacis
[1915], 31 Phil., 524; 39 L. R. A., 523, Note; Cooley's Constitutional Limitations, 6th edition, pp. 138,
226, 742; Greenville vs. Kemmis [1900], 58 S. C., 427 [holding that under the general welfare clause
a city may pass an ordinance prohibiting gambling in any private house].)
The Philippine Legislature, as before intimated, delegated to municipalities certain legislative powers
are named specifically. But in addition, and preceding both the specific powers of a mandatory and
discretionary character, is the general power of a municipal council to enact ordinances and make
regulations. It is this grant that the preamble of the ordinance of Orion assigns as authority for its
enactment. Said section 2184 of the Administrative Code of 1916 (sec. 2238, Adm. Code of 1917)
reads:
The municipal council shall enact such ordinances and make such regulations, not
repugnant to law, as may be necessary to carry into effect and discharge the powers an
duties conferred upon it by law an suchas shall seem necessary and proper to provide for
the health and safety, promote the prosperity, improve the morals, peace, good order,
comfort, and convenience of the municipality and the inhabitants thereof,and for the
protection of property therein.

This section, known as the general welfare clause, delegates in statutory form the police power to a
municipality. As above stated, this clause has been given wide application by municipal authorities
and has in its relation to the particular circumstances of the case been liberally construed by the
courts. Such, it is well to recall, is the progressive view of Philippine jurisprudence.
The general welfare clause has two branches. One branch attaches itself to the main trunk of
municipal authority, and relates to such ordinances and regulations as may be necessary to carry
into effect and discharge the powers and duties conferred upon the municipal council by law. With
this class we are not here directly concerned. The second branch of the clause is much more
independent of the specific functions of the council which are enumerated by law. It authorizes such
ordinances "as shall seem necessary and proper to provide for the health and safety, promote the
prosperity, improve the morals, peace, good order, comfort, and convenience of the municipality and
the inhabitants thereof, and for the protection of property therein."
It is a general rule that ordinances passed by virtue of the implied power found in the general powers
and purposes of the corporation, and not inconsistent with the laws or policy of the State. The
ordinance of the municipality of Orion does not seem in itself to be pernicious, or unreasonable or
discriminatory. Its purposes evidently are to improve the morals and stimulate the industry of the
people. A person is to be compelled to refrain from private acts injurious both to himself an his
neighbors. These objects, to be attained by limiting the pastime to definite days, do not infringe any
law of the general government.
The constitutional provision that no person shall be deprived of liberty without due process of law is
not violated by this ordinance. Liberty of action by the individual is not unduly circumscribed; that is,
it is not unduly circumscribed if we have in mind the correct notion of this "the greatest of all rights."
That gravest of sociological questions How far, consistently with freedom, may the liberties of the
individual member of society be subordinated to the will of the Government? has been debated
for centuries, in vain, if we can not now discount the time worn objection to any and all interference
with private rights in order to effectuate the public purpose. (See Jacobson vs. Massachusetts
[1905], 197 U. S., 11; State vs. Kreutzberg [1902], 58 L. R. A., 748.) Almost countless are the
governmental restrictions on the citizen.
The presumption is all favor of validity. The inhabitants of a municipality are in themselves miniature
states. The action of the elected representatives of the people cannot be lightly set aside. The
councilors must, in the very nature of things, be familiar with the necessities of their particular
municipality an with all the facts and circumstances which surround the subject, and necessities of
their particular municipality and with all the facts and circumstances which surround the subject, and
necessitate action. The local legislative body, by enacting the ordinance, has in effect given notice
that the regulations are essential to the well being of the people. Who is in a better position to say
whether the playing of panguingue is deleterious to social order and the public interest in a certain
municipality the municipal council, or the courts? The answer is self-evident. The Judiciary should
not lightly set aside legislative action when there is not a clear invasion of personal or property rights
under the guise of police regulation. (See U.S. vs. Joson [1913], 26 Phil., 1.)
President McKinley's Instructions to the Commission still remain undisturbed by subsequent Acts of
Congress dealing with Philippine affairs and yet constitute a portion of our constitutional law, as to
the inviolable rule that "municipal governments . . . shall be afforded the opportunity to manage their
own affairs to the fullest extent of which they are capable." Again the same organic law says, "In the
distribution of powers among the governments organized by the Commission, the presumption is
always to be in favor of the smaller subdivision, so that all the powers which can properly be
exercised by the municipal government shall be vested in that government . . . ." Let us never forget
these principles so highly protective of local self-government.

The judiciary can very well take notice of the fact that municipalities are accustomed to enacting
ordinances aimed at the regulation of gambling. The executive authorities an the Attorney-General
have usually upheld the validity of such ordinances, especially those intended to restrict the playing
of panguingue. (Opinions of the Attorney-General, supra; Opinion of the Executive Secretary, July 6,
1909; Indorsement of the Governor-General, July 21, 1904.) This general municipal practice,
indicative of a social cancer to be eradicated, should not be discouraged by strict judicial
construction.
More important still, the courts cannot but realize that gambling, in its larger sense as well as in its
restricted sense, is an act beyond the pale of good morals, which, for the welfare of the Filipino
people, should be exterminated. The suppression of the evil does not interfere with any of the
inherent rights of citizenship. The pernicious practice is rightfully regarded as the offspring of
idleness and the prolific parent of vice and immorality, demoralizing in its association and
tendencies, detrimental to the best interests of society, and encouraging wastefulness,
thriftlessness, and a belief that a livelihood may be earned by other means than honest industry. To
be condemned in itself, it has the further effect of causing poverty, dishonesty, fraud, and deceit.
Many a man has neglected his business and mortgaged his integrity to follow the fickle Goddess of
the cards. Many a woman has wasted her hours and squandered her substance at the gambling
board while home and children were forgotten. It is highly proper that this pastime should be subject
to the control of restraints imposed by the ordinances of local governments peculiarly afflicted by the
evil. (See In re Voss [1903], 11 N. D., 540; Ex parte Tuttle [1891], 91, Cal., 589;
Greenwood vs. State [1873], 6 Baxt., 567; 32 Am. Rep., 539; 12 R. C. L., 709-715.)
For the suppression of such an evil, coordinate and harmonious action must concur between the
three departments of Government. A law or ordinance enacted by the legislative body must exist.
Such an ordinance is before us. Vigorous executive enforcement must take place to make the law or
ordinance a reality. Such activity by the police has brought this case to the courts. And finally the
Judiciary, having full respect for the legislative action of the municipal council and for the prosecution
by the executive officials, must, by judicial construction, equally as progressive and constructive,
give effect to the action of the other two powers. Wherefore, althoughpanguingue is not entirely a
game of chance, since it is a proper subject for regulation by municipal authorities acting under their
delegated police power, whose laudable intention is to improve the public morals and promote the
prosperity of their people, their action should be upheld by the courts. Ordinance No. 3 of Orion,
Bataan, is found to be valid.
The culprit in this case is himself a member of the Judiciary. Instead of enforcing the law, he has
scorned it. His example to the people of Orion has been pernicious in its influence. If gambling is to
be suppressed, not only the weak and ignorant must be punished, but those with full knowledge of
the law and the consequences of violation. We would accordingly suggest to Courts of First Instance
that in all cases arising under the Gambling Law or ordinances, except for unusual circumstances, a
prison sentence should be imposed, if permitted by the law or ordinance. We further suggest that,
where the defendant has been found guilty and is a man of station, he be given the maximum
penalty.
law phil.net

Applying the foregoing in this instance, it results that the defendant and appellant must be found
guilty of a violation of ordinance No. 3 of the municipality of Orion, Bataan; and, in accordance
therewith, shall be sentenced to the maximum penalty of the payment of a fine of P200, or to
subsidiary imprisonment in case of insolvency, with the costs of all three instances against him. So
ordered.
Arellano, C.J., Torres, Araullo and Avancea, JJ., concur.

Separate Opinions

JOHNSON, J., concurring: