DELEGATION OF POLICE POWER TO LOCAL GOVERNMENTS

I. Concept, Nature and Scope—

Police power.—In his work on Due Process of Law, Mott stated that the term police power was
first used by Chief Justice Marshall in 1824 (Morfe v. Mutuc, L-20387, Jan. 31, 1968, 22 SCRA
424, 436, citing Gibbons vs. Ogden, 9 Wheat 208 and Brown v. Maryland, 12 Wheat 419). Police
power has not received full and complete definition; it is elastic and must be responsive to
various social conditions; it is not confined within the narrow circumscriptions of precedents
resting on past conditions; it must follow the legal progress of a democratic way of life (PLDT v.
City of Davao, et al, L-23080, Oct. 30, 1965). It was probably for the same reason that prompted
Chief Justice Shawto remark: "It is much easier to perceive and realize the existence and
sources of this power, than to mark its boundaries, or prescribe limits to its exercise" (U.S. v.
Toribio, 15 Phil. 85, citing Commonwealth v. Alger, 7 Cush 53, 84). Chief Justice Waite was of
the same opinion: "Many attempts have been made in this court and elsewhere to define 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" (Stone v. Mississippi, 101 U.S. 814).
Earlier Philippine cases, however, refer to police power as the power to promote the general
welfare and public interest (U.S. v. Toribio, 15 Phil. 85, 94 [1910]); to enact such laws in relation
to persons and property as may promote public health, public morals, public saftey fety and the
general welfare of each. inhabitant (U.S. v. Gomez Jesus, 31 Phil, 218, 255 [1915]); to preserve
public order and to prevent offenses against the State and to establish for the intercourse of
citizen with citizen those rules of good manners and good neighborhood calculated to prevent
conflict of rights (U.S. v. Pompeya, 31 Phil. 218, 225 [1915]). It has been negatively put forth by
Justice Malcolm as "that inherent and plenary power in the State which enables it to prohibit all
things hurtful to the comfort, safety and welfare of society" (Rubi v. Prov'l Board, 39 Phil. 660,
708 [1919]). In Ermita-Malate Hotel & Motel Operators Ass'n, et al. v. City Mayor of Manila, L-
24693, July 31, 1967, there is a reaffirmation of its nature and scope as embracing the power to
prescribe regulations to promote the health, morals, education, good order, safety, or the
general welfare of the people (Justice Fernando in Morfe v. Mutuc, supra).
Doctrine of non-delegation of legislative powers.—The power conferred upon the legislature to
make laws cannot be delegated by that department to any other body or authority. Where the
sovereign power of the State has located the authority, there it must remain and by that
constitutional authority alone the laws must be made until the constitution itself is changed
(Cooley, Constitutional Limitations, 8th, Vol. I, p. 244). Any attempt to abdicate the power is
unconstitutional and void on the principle that "potestas delegata non delegare potest" (People
v. Vera, 65 Phil. 56).
The preceding doctrine is based on the ethical principle that such delegated power constitutes
not only a right, but also a duty to be performed by the delegate by the instrumentality of its
own judgment, acting immediately upon the matter of legislation and not through the
intervening mind of another (U.S. v. Barias, 11 Phil. 327). The power to whose judgment,
wisdom, and patriotism, this high prerogative has been entrusted cannot relieve itself of the
responsibility by choosing other agencies upon which the power devolved, nor can it substitute
the judgment, wisdom, and patriotism of any other body for or those to which alone the people
have seen fit to confide the trust (Cooley, supra, pp. 243-245; Martin, Phil. Constitutional Law,
1952 ed,; p. 54),
Delegation of duties.—In the absence of constitutional or statutory authority. a judicial, quasi
judicial, or an administrative officer may not alienate or surrender his discretionary power or
powers which require exercise of judgment, or deputize another for him with respect thereto.
For, when a public official is granted discretionary power, it is to be presumed that so much is
reposed on his integrity, ability, acumen, judgment. Because he is to look into the facts, weigh
them, act upon them, decide on them—acts that should be entrusted to no other (Villegas, et
al. v, Auditor General, et al, L-21352, Nov. 29, 1966). Thus, it was held that Mayor Villegas of
Manila was not empowered to delegate his duties as member of the Committee on Awards to
Fernando Manalastas, his technical assistant on public health, hygiene and sanitation (Villegas,
et al. v. Auditor General, et al., supra).
When legislative power may be delegated.—Legislative power may be delegated when it is
expressly authorized by the Constitution (Cf. Art. VI, Sec. 26, Philippine Constitution; Art. VI, 22
[2], id., and Art. VIII, sec. 18, id.) Congress may delegate to administrative agencies of the
governments the power to supply the details in the execution or enforcement of a policy laid
down by a law which is complete in itself (Cardona v. Municipality of Binangonan, 36 Phil. 547;
Vigan Electric v. PSC, L-19850, Jan. 30, 1964; Alegre v. Collector of Customs, 53 Phil. 65; Rubi v.
Board of Mindoro, 39 Phil. 660; Pelaez v. Auditor General, L-23825, Dec, 24, 1965). Legislative
power may be delegated to local governments (People v. Jollife, 105 Phil. 677; People v. Lim Ho,
et al, 106 Phil. 889).
Although Congress may delegate to another branch of the government the power to fill in the
details in the execution, enforcement or administration of a law, it is essential, to forestall a
violation of the principle of separation of powers, that said law (a) be complete in itselfit must
set forth therein the policy to be executed, carried out or implemented by the delegate and (b)
fix a standard—the limits of which are sufficiently determinate or determinable—to which the
delegate must conform in the performance of his functions. Indeed, without a statutory
declaration of policy, the delegate would, in effect make or formulate ormulate policy which is
the essence of every law; and without the aforementioned standard, there would be no means
to determine with reasonable certainty, whether the delegate has acted within or beyond the
scope of his authority. Hence, he could thereby arrogate upon himself the power not only to
make the law, but also—and this is worse—to unmake it by adopting measures inconsistent
with the end sought to be attained by the Act of Congress, thus nullifying the principle of
separation of powers and the system of checks and balances, and, consequently, undermining
the very foundation of our Republican system (Pelaez v. Auditor General, L-23825, Dec. 24,
1965; Director of Forestry, et al, L-24796, etc. June 28, 1968).
II. Municipal Police Power—
Delegation of legislative power to local governments.—The general principle against delegation
of legislative powers, in consequence of the theory or separation of powers (U.S. v. Bull, 15 Phil.
7) is subject to one well-established exception, namely: legislative power may be delegated to
local governments—to which said theory does not apply (Pepsi-Cola Bottling Co., etc. v. City of
Butuan, et al., L22814, Aug. 28, 1968).
General welfare clause.—In our country, the grant of police power to the municipality is
embodied in Section 2238 of the Revised Administrative Code (and also in the Local Autonomy
Act of 1959—RA No. 2264 and Decentralization Act of 1967—RA No. 5185), which authorizes
the municipal council to 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 the municipal council by law, and to 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. Chartered cities, as well, are granted the same authority
(Sec. 18 [kk], Rep. Act 409; People v. Felisarta, L15346, June 29, 1962, 5 SCRA 38; Lagman v. City
of Manila, et al., L-23305, June 30, 1966; PLDT v. City of Davao, et al., L-23080, Sept. 20, 1965).
This grant of authority is known as the General Welfare Clause (U.S. v. Salaveria, 39 Phil. 102).
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. 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 be deemed
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 inhabitants
thereof, and for the protection of property therein (U.S. v. Salaveria, 39 Phil. 102). The first
branch is, strictly speaking, what is known as the general legislative power while the second
branch may be properly called the police power of municipal corporations (Martin, Philippine
Law Reviewer, 1954, ed., p. 580).
Essential requisites for a valid exercise of police power.—To justify the State in thus interposing
its authority in behalf of the public, it must appear, first, that the interests of the public
generally, as distinguished from those of a particular class, require such interference; and,
second, that the means are reasonably necessary for the accomplishment of the purpose and
not unduly oppressive upon individuals (U.S. v. Toribio, 15 Phil. 85; U.S. v. Villareal, 28 Phil. 390;
Fabie v. City of Manila, 21 Phil. 486). These requisites are likewise applicable to the valid
exercise of municipal police power.
Purpose of delegation of police power to municipal governments.—Legislative and
governmental powers are conferred upon a municipality, the better to enable it to aid the State
in properly governing that portion of its people residing within its municipality. Governmental
affairs do not loss their governmental character by being delegated to the municipal
governments. Nor does the fact that such duties are performed by officers of the municipality
which, for convenience, the state allows the municipality to select, change their character. To
preserve the peace, protect the morals and health of the community and so on is to administer
government, whether it be done by the central government itself or is shifted to a local
organization (Surigao Electric Co., Inc., et al. v. Municipality of Surigao, et al., L-22766, Aug. 30,
1968).
Requisites for validity of an ordinance.—An ordinance 'to be valid (1) must not contravene the
constitution or statutes; (2) must be impartial, fair and general; (3) must not be oppressive; (4)
must not prohibit, but may regulate; (5) must be consistent with public policy; and (6) must not
be unreasonable (Sinco and Cortes, Philippine Law on Local Governments, 2nd Ed., p. 181; U.S.
v. Abendan, 24 Phil. 165; Pedro v. Provincial Board of Rizal, 56 Phil. 123; Sarmiento, et al. v.
Belderol, et al., L15719, May 31, 1961).
III. Exercise of Municipal Police Power—
Occupation of rig drivers.—Under the general grant of police power to municipal corporations
in section 2238 of the Administrative Code and under its charter, the City of Cebu has the
power to regulate the occupation of rig drivers, involving as it does, not only the use of
municipal property but also such. matters of public interest, as sanitation and safety, good
order, comfort, convenience and general welfare of the city and its inhabitants. In the exercise
of this power it may impose a license fee of ?1.00 per year on every rig driver to defray the
necessary expenses of registration and police regulation (People v. Felisarta, L-15346, June 29,
1962, 5 SCRA 389).
Exhumation and transfer of corpses.—An ordinance which regulates the exhumation and/or
transfer of corpses from other burial grounds to those located in the City of Caloocan is within
the legislative power of said city to enact, but the imposition of the transfer fees on the
interment of the dead was not justified (Viray v. City of Caloocan, L-23118, July 26, 1967, 20
SCRA 791).
Entry of provincial public utility vehicles into a city.—The enactment of an ordinance which.
regulates the entrance of provincial public utility vehicles into the City of Manila, except those
passing thru the city, is a valid exercise of its police power to regulate and control the use of its
streets (Lagman v. City of Manila, et al., L23305, June 30, 1966).
Installation and operation of pinball machines.—Pinball machines in the different forms in
which they are operated are gambling devices in that the winning therein depends mostly, if
not wholly, upon chance or hazard. Consequently, the municipal board of the city of Manila
acted rightly in enacting Ordinance No. 3941 providing therein that no license for their
installation or operation shall be granted under any circumstances. Hence, said ordinance is
valid and constitutional it being a measure that comes under the general welfare clause of the
Charter of the City of Manila (Miranda v. City of Manila, L-17252 and L-17276, May 31, 1961, 2
SCRA 613).
Operation of hotels, motels and lodging houses.—A Manila ordinance regulating the operation
of hotels, motels and lodging houses is a police power measure specifically aimed to safeguard
public morals. As such, it is immune from any 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, extending as it does "to all the great public needs'"
(Ermita-Malate Hotel and Motel Operators Association, Inc., et al. v. City Mayor of Manila, L-
24693, July 31, 1967, 20 SCRA 849).
Maintenance and operation of cockpits.—A municipal ordinance authorizing the operation of
cockpits on days other than those authorized by law, violates sections 2285 and 2286 of the
Revised Administrative Code and, hence, null and void, despite the provision of Republic Act
No. 938 authorizing the municipality or municipal district to regulate the establishment,
maintenance and operation of cockpits within its territorial jurisdiction (Chief of the Philippine
Constabulary v. Sabungan Bagong Silang, Inc., et al, L-22609, Feb. 28, 1966, 16 SCRA 336;
Quimsing, vs. Lachica, L-14683, May 30, 1961; Chief of P.C., et al. v. Judge of CFI of Rizal, et al, L-
22308 & L-22343-44, March 31, 1966, 16 SCRA 607}.
Measures to enforce payment of municipal tax.—A municipal board may resort to all means
reasonably necessary and proper to give effect to the powers expressly conferred upon it
provided, however, that said means are not otherwise contrary to any statutory or other more
authoritative provision on the subject. Thus, the payment of the sales tax on the sale of motor
vehicles may be made a condition precedent to the registration of the sale in the Motor
Vehicles Office as well as to the transfer of ownership (C. N. Hodges v. Municipal Board, Iloilo
City, et al, L-18276, Jan, 12, 1967, 19 SCRA 28).
Fixing of distance of cabarets from public buildings, schools, hospitals, and churches.—Section 1
of Republic Act No. 1224 empowers the Municipal Council of a Municipality to regulate or
prohibit, by ordinance, the establishment, maintenance, and operation, among others, of
cabarets within its territorial jurisdiction. Such power to regulate and prohibit includes the
power to fix fix the distance of said cabarets from any public buildings, schools, hospitals, and
churches, provided that the distance so fixed by it is not less than 200 lineal meters in radius
from said public buildings, schools, hospitals, and churches. In fine, the municipal council may,
by ordinance, fix distance over the 200 lineal meters minimum requirement above provided,
but it may not do so below said minimum (Lopera v. Vicente, et al., L-18102, June 30, 1962, 5
SCRA 549).
Fixing of distance of cockpits from public buildings, schools, etc.—Section 1, Republic Act No.
1224, amending Republic Acts Nos. 938 and 979, expressly empowers a municipal or city
council either to prohibit entirely or merely regulate the operation and maintenance of certain
places of amusement by imposing a distance limitation thereon, from any public buildings,
schools, hospitals and churches, specifying a distance of 200 lineal meters in cases of nightclubs
and other establishments of similar nature, and 50 lineal meters in cases of bars, saloons, etc.
However, with. respect to cockpits, the law gave the local lawmaking body the discretion to
determine the appropriate distance to be observed, probably on the theory that cockpit, having
its own peculiarities, the municipal council is in a better position to understand the needs of its
constituents. From this it cannot be logically inferred that cockpits can be freely established at
any place and be exempt from observing certain distances from public buildings, schools, etc.
The authority to determine the distance does not carry with it the authority to exempt cockpits
from observing any distance at all. That the Legislature did not intend to give the council such
authority to dispense entirely with the distance limitation in case of cockpits, is evident from
the fact that even in those cases specifically declared exempted from any ordinance fixing
distances, the law requires the observance of certain restrictions designed to promote the
peace, health and general welfare of the community. A Municipal Council, therefore, could not.
under Republic Act No. 1224, abolish an already existing distance requirement on cockpit and
provide no distance limitation at all on the operation of such amusement place (Sarmiento, et
al. v. Belderol, et al., L-15719, May 31, 1961, 2 SCRA 477).
Power to create a provincial police force.—The power to create a provincial police force
appears to be denied to provincial governments (Republic v, Montano, et al., L28055, Oct. 30,
1967).
IV. Effect of Local Autonomy Act and Decentralization Act Upon the Basic Nature of Municipal
Governments—
Provincial governments, like other municipal corporations, are government of enumerated
powers. The assumption, although historically inaccurate, is that municipal corporations are
mere creatures of the state with no inherent powers of their own. This same assumption
underlies the grant of autonomy to local governments (see Local Autonomy Act—Rep. Act No.
2264 and Decentralization Act—Rep. Act No. 5185), for implicit in the grant is precisely the
recognition that they exercise only delegated powers which should be enlarged and, in case of
"fair and reasonable doubt," should be resolved in their favor (Republic v. Montano, supra).
Section 12(1) (2) of the Local Autonomy Act, which is reproduced in section 23 of the
Decentralization Act of 1967, did not alter the basic nature of municipal governments as
governments of limited power. What it change was the prevailing rule at the time of its
enactment that the grant of powers to municipal corporations must be strictly construed
against them. As a rule of interpretation it does not purport to supply power where none exists,
not even by necessary implication (Republic v. Montano, id.).—JUDGE DOMINGO LUCENARIO.
DELEGATION OF POLICE POWER TO LOCAL GOVERNMENTS, 8 SCRA 817,