United States vs. Salaveria.

2/27/22, 10:30 AM SUPREME COURT REPORTS ANNOTATED VOLUME 039
[No. 13678. November 12, 1918.]
THE UNITED STATES, plaintiff and appellee, vs. PRUDENCIO

SALAVERIA, defendant and appellant.
1. CONSTITUTIONAL LAW; "LIBERTY."—The constitutional

provision that no person shall be deprived of liberty without due
process of law found not to be violated by. an ordinance of Orion,
Bataan. "Liberty" is defined in the opinion.
________________
1 30 Phil. Rep., 491.
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VOL. 39, NOVEMBER 12, 1918. 103
United States vs. Salaveria.
2. ID.; PUBLIC CORPORATIONS ; POLICE POWER.—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. The best considered decisions
have tended to broaden the scope of action of the municipality in
dealing with police offenses. The public welfare is rightly made the
basis of construction.
3. ID.; ID.; ID.; GENERAL WELFARE CLAUSE.—Section 2238 of

the Administrative Code of 1917, known as the general welfare
clause, delegates in statutory form the police power to a
municipality. 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.
https://central.com.ph/sfsreader/session/0000017f390503060072c5f7000d00d40059004a/t/?o=False 1/16
4. ID.; ID.; ID.; ID.; RULE OF CONSTRUCTION.—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.
5. ID.; ID.; ORDINANCES; STATUTORY CONSTRUCTION.—The

presumption is all in favor of the validity of an ordinance.
6. ID.; ID.; PRESIDENT MCKINLEY'S INSTRUCTIONS TO THE

COMMISSION.—Those portions of President McKinley's
Instructions to the Commission, relating to local self-government,
yet constitute a portion of Philippine Constitutional Law and should
be enforced.
7. GAMBLING ; CONTROL.—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. 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.
8. ID. ; ID.—For the suppression of the evil of gambling, coördinate

and harmonious action must concur between the three departments
of government.
9. ID. ; ID. ; PENALTIES.—In all cases arising under the Gambling

Law or ordinances, except for unusual circumstances, a prison
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104 PHILIPPINE REPORTS ANNOTATED
sentence should be imposed if permitted by the law or ordinance.

Further, where the defendant has been found guilty and is a man of
station, he should be given the maximum penalty. Example: A
justice of the peace, convicted of a violation of a municipal
ordinance, sentenced to the maximum penalty provided by the
ordinance, the payment of a fine of P200.
10. ID.; ID.; PUBLIC CORPORATIONS; ORDINANCES;

"PANGUINGUE."—Panguingue is not a game of chance or of
hazard and is not prohibited by Act No. 1757.
11. ID.; ID.; ID.; ID.; ID.—Panguingue is, however, in one sense, a
species of gambling which municipalities can restrain, suppress, or
control, by the exercise of the police power.
12. ID.; ID.; ID.; ID.; ID.—Ordinance No. 3. of Orion, Bataan,

prohibiting the playing of panguingue on days not Sundays or legal
holidays, -and penalizing 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, held valid.
APPEAL from a judgment of the Court of First Instance of Bataan.

Imperial, J.
The facts are stated in the opinion of the court.
Jose R. Varela for appellant.
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 ?, fine of not less than P nor more than 9200. 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
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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 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.
"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 f ollowing 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 hundred pesos,
or subsidiary imprisonment in case of insolvency at the rate of one peso a
day.
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"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 [?], 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
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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 Administración, 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 f gambling. which
only made it an indictable offense when the play was attended by
such
108

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 f ound 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 "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 "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
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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 of a discretionary nature.
Many of these powers are 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 f or 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
110

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
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VOL. 39, NOVEMBER 12, 1918. 111

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
112

and the Attorney-General have usually upheld the validity of such

ordinances, especially those intended to restrict the playing of
panguingue. (Opinions of the AttorneyGeneral, 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
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VOL. 39, NOVEMBER 12, 1918. 113

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.
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JOHNSON, J., concurring:
I concur upon the ground that the ordinance in question is fully

authorized under the "general welfare" provisions of the Municipal
Code.
STREET, J., concurring:
I agree in the condusion that the ordinance passed by the

municipality of Orion prohibiting the playing of panguingue on
secular days is valid and am of the opinion that the authority to pass
such an ordinance is to be found exclusively in section 2184 of the
Administrative Code (1916), which gives a general authority for the
enactment of ordinances which seem proper to improve the morals
and good order of the community. As the game of panguingue is
admittedly not a game of chance or hazard played for money, it is
not within the prohibitions of Act No. 1757; and I think the case
should be determined without reference to the legislation against
gambling and without reference to the circumstance that under
subsection (/) of section 2188 of the same Code the Legislature has
made it mandatory upon municipal councils to prohibit and penalize
gambling.
The legislature has clearly authorized the municipal council to
use its discretion as to the measures which it esteems desirable to
promote morals and good order; and I know of no rule of law which
would justify any court in overruling that discretion in such a matter
as is now before us. Certainly I would be sorry to see this court
adopt a paternalistic attitude of captious criticism and correction
tending to embarrass the free exercise of the legislative discretion
vested by law in the municipal councils. Those bodies are
undoubtedly destined to make mistakes in the exercise of the powers
conferred on them, but there is no better school than that of
experience in which their members may discover what is most likely
to promote the welfare of the community and the interests of their
constituents.
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As already suggested, I think that the Gambling Law (Act No. 1757)
and the provisions of the Municipal Code relative to the suppression
of gambling, strictly speaking, have nothing to do with the case; and
the circumstance that those measures are upon the statute book
cannot serve in the slightest degree to limit the powers of a

municipal council in legislating upon a matter not implicated with
gambling. From the preamble to the ordinance it may be seen that
the council had in view the promotion of the general well-being and
the advancement of prosperity in the community; and the ordinance
was doubtless intended to discourage the playing of games which
involve a frivolous and idle waste of time, rather than directly to
suppress gambling. But even if the council had supposed that the
games which it proposed to regulate are calculated to foment the
gambling instinct and should be suppressed for that reason, the
ordinance in question could not possibly have been rendered invalid
by that fact.
FISHER, J., dissenting:
The importance of suppressing gambling, properly emphasized in

the majority opinion, cannot warrant a conviction where gambling is
not involved. The zeal to remedy an evil should not induce the
graver evil of obliterating legal landmarks.
Gambling is the playing, for money or its equivalent, of any
game of which the result depends "wholly or chiefly upon chance or
hazard, * * *" (Act No. 1757).
The def endant herein is accused of playing panguingue, which is
avowedly not a game of chance or hazard within this definition. It is
not alleged in the information that the playing was for money or any
other thing of value. The fact that some money was found on the
table when the accused was arrested is immaterial in this case. The
ordinance under which the conviction was had does not make
playing the prohibited games for money an ingredient of the offense,
and the decision of the majority pro-
116

ceeds upon the theory that the result would have been the same had
no money been staked upon the game.
To play a game of skill without risking anything upon the
outcome is not gambling, and the prohibition of harmless
amusements cannot be justified by the authority to prohibit
gambling.
In recognition of the fact that the ordinance upon which is based
this prosecution goes beyond the terms of the statutory authority, it
is sought to find power to pass the same under the general welfare
clause (section 2238, Administrative Code of 1917). But the
ordinance which imposes a fine and imprisonment upon a man and
wife who play a game of cards together as mere pastime, in their
own home, without risking a cent upon the outcome, is beyond the
protection of such general provision !for two reasons. In the first
place, it is unreasonably subversive of the liberty of the citizen and
unnecessary. In the second place, the Legislature of the Islands has
spoken in well defined terms on the subject of gambling, and its
pronouncement on the subject fills the field and precludes the
possibility of stretching the authority delegated to municipalities into
the right to repeal, modify or supplement existing legislation.
The subject of gambling has merited the attention of our
Legislature and Act No. 1757 very clearly defines the intention and
will of that body in the premises. Its limitation of the prohibition is
its refusal to prohibit games of skill and games in which no value is
at stake, and is the exact equivalent of a pronouncement that non-
gambling pastimes shall not be prohibited.
When the legislature authorized municipalities to "penalize * * *
gambling" it was aiming at the vice of risking money upon the
hazard of a game of chance. The Legislature has not prohibited the
playing of card games—in itself an innocent pastime—but the
playing for money of games of hazard. When it delegated like power
to municipalities it had a like object in view and no other.
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Equally untenable, to my mind, is the attempt to justify the statute

under the "general welfare" clause. The prohibition by ordinance of
the playing of certain card games as an amusement, without stake or
wager, cannot be said to promote the health, safety, morals, peace,
good order, comf ort or convenience of the inhabitants of a
municipality. The majority opinion contends that the purpose of the
enactment was to "improve the morals and stimulate the industry of
the people." Unfortunately for that theory it appears that the
ordinance expressly permits these "immoral" diversions on Sundays
and official holidays. I am unable to see how one's morals are to be
improved by permitting him to play panguingue, poker or burro all
day Sunday, and then sending him to jail for engaging in the same
amusement Monday evening. So far as the "stimulation of * * *
industry" is concerned, that argument might have had some weight if
the prohibition of these amusements had been limited to working
hours. But such is not the case. The inhabitants of Orion may play
poker—without a wager—to their heart's content on Sunday, but to
do it Saturday evening, after the work of the week is over, is
prohibited—their morals are to be "improved" and their industry
"stimulated" until midnight. After that they may yield to their
depraved instincts until midnight of Sunday, without let or
hindrance. I submit that it is obvious that the ordinance in question
was intended to prevent gambling, but is not warranted by the

delegated authority of municipal councils over this subject, because
it is so drawn as to include harmless amusements not within the
legislative definition of gambling. By limiting the definition and
prohibition of gambling to" the playing for money of games of
hazard, the Legislature by implication permitted the playing of all
other games not within the prohibition. Is the "general welfare"
clause of grant of power to municipal corporation to be so construed
as to make the express delegation of power redundant and useless?
If under the general welfare clause the play-
118

ing of whist or chess in one's own house, not for money, but merely
for amusement, may be prohibited under the general welfare clause,
certainly the power "to penalize and prohibit * * * gambling" must
have been included in that clause. If so, the special grant relating to
gambling is merely redundant.
I submit that when a special power to enact ordinances is granted
to a municipal council upon a particular subject, the power as to that
matter is to be measured by the express grant, without enlargement
by the interpretation of the general "welfare clause." The express
grant of power to regulate public dance halls (section 2243 [k],
Administrative Code of 1917) is not to be expanded under the
general "welfare clause" so as to authorize the prohibition and
penalizing of dancing in private houses. The express grant of power
to establish and maintain streets cannot be expanded, under the
general welfare clause, this court has held, so as to authorize an
ordinance to compel citizen to clean the streets. (U. S. vs. Gaspay,
33 Phil. Rep., 96.) I think the law on this subject is correctly
expressed in Judge Dillon's authoritative work on Municipal
Corporations as follows:
"When there are both special and general provisions, the power to pass by-
laws under the special or express grant can only be exercised in the cases
and to the extent, as respects those matters, allowed by the charter or
incorporating act; and the power to pass by-laws under the general clause
does not enlarge .or annul the power conferred by the special provisions in
relation to their various subject matters, but gives authority to pass by-laws,
reasonable in their character, upon all other matters within the scope of their
municipal authority, and not repugnant to the Constitution and general laws
of the State."
But if we disregard entirely the delegated power relating to the

prohibition of gambling and consider the matter from the standpoint
of the general welfare clause alone, it seems equally clear to me that

the ordinance in question
119
VOL. 39, NOVEMBER 12, 1918. 119

is void as being contrary to the public legislative policy, as

established by the Philippine Legislature. In Dillon on Municipal
Corporations (fifth edition, paragraph 601) it is said:
"* * * A municipal corporation * * * cannot, in virtue of its incidental

power to pass by-laws, or under any general grant of that authority, adopt
by-laws which infringe the spirit or are repugnant to the policy of the State
as declared in its general legislation. This principle is well exemplified by a
case in Ohio (Marietta vs. Fearing, 4 Ohio, 427), in which incorporated
towns were, by statute, prohibited from subjecting stray animals owned by
persons not residents of such towns to their corporation ordinances. It was
held that an ordinance operating, not on the animals but on the non-resident
owner, in the shape of a penalty, violated the spirit of the statute, and was
void. So, in a later case in the same State, it was shown that the general
policy of the State was to allow animals to run at large; and it was ruled that
a municipal corporation with power to pass 'all by-laws deemed necessary
for the well-regulation, health, cleanliness &c.,' of the borough, and with
power to 'abate nuisances,' had no authority to pass a by-law restraining
cattle from running at large, such a by-law being in contravention of the
general law of the State. (Collins vs. Hatch, 18 Ohio, 523.)"
The public legislative policy is to permit the playing of card games

as an amusement, without wagers upon the outcome. That is shown
by the language of Act No. 1757, which, by limiting the prohibition
of gambling to games of chance or hazard played for money, by
implication permits the playing of games not prohibited, and by the
fact that the Tariff Act in force (section 3) by prohibiting the
importation of marked cards impliedly authorizes the importation of
others.
Panguingue playing may be so harmful to the people of this
country that the playing of it at any time, at any place, with or
without the wagering of money, should be
120

G. Martini, Ltd., vs. Glaiserman.
prohibited. If that is so the Legislature should prohibit it. Some

people regard dancing and billiards as equally harmful. If such
people happen to control a given municipal council we may see

respectable citizens in jail for the offense of dancing in their own
homes, for playing casino or billiards, or ping-pong, or for engaging
in any other amusement which, while not prohibited by any general
law, may be prohibited in any municipality under this omnibus
general welfare clause.
Judgment modified, penalty increased.
_____________
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2/27/22, 10:30 AM SUPREME COURT REPORTS ANNOTATED VOLUME 039

[No. 13678. November 12, 1918.]

THE UNITED STATES, plaintiff and appellee, vs. PRUDENCIO

1. CONSTITUTIONAL LAW; "LIBERTY."—The constitutional

1 30 Phil. Rep., 491.

VOL. 39, NOVEMBER 12, 1918. 103