THE UNITED STATES, PLAINTIFF AND APPELLANT, VS. BONIFACIO GARING, DEFENDANT AND APPELLEE.

Bonifacio Garing was charged before the ex officio justice of the peace of
the subprovince of Mindoro with having violated Municipal Ordinance No. 9,
amended by No. 14, series of 1900, of the township of Naujan, and was sentenced
to pay a fine of P100, with subsidiary imprisonment in case of insolvency, and
the costs. From this judgment the defendant appealed, and thereupon the
provincial fiscal of Batangas and Mindoro filed a complaint before the Court of
First Instance of the latter province, charging the said Bonifacio Garing with
having placed, maliciously and criminally, on or about November 4, 1911, a fish
weir in the Butas River of the township of Naujan, which device, though it faced
the sea, was arranged in such wise that it caught fish coming from the Naujan
Lake, all in violation of Municipal Ordinance No. 14 of the said township,
series of 1900.

The defendant having filed a demurrer to the complaint, on the ground that
the said ordinance was unconstitutional and therefore null and void, the court
sustained the said demurrer by an order of March 12, 1912, the grounds and
despositive part of which are as follows :

“* * * The prohibited district is the sea coast. The court has had occasion
to examine cases relative to fisheries, on account of his having held the office
of fiscal for several years, and to decide cases of this kind in his present
capacity of judge. At the present time there is no law in the Philippine Islands
that empowers municipal councils to prohibit fisheries, though they are
authorized to grant fishery licenses and privileges, but this is as far as their
power in this respect extends. That a municipal council should prohibit fishing,
and especially on the Naujan coast, in the sea, is something this court has
never seen nor heard of. Fishing in the sea is absolutely free, and a
municipality may only regulate the same by granting a license for a certain
district or a privilege for such fishing. The court has duly considered the
brilliant arguments of the attorneys who have appeared in these two cases, and;
deciding both the latter at once, decrees their dismissal, with the costs de
officio. The court, at the same time, holds that the aforesaid ordinance is
illegal and unconstitutional. So ordered.”

An appeal from the said order was taken by the fiscal, and, the case having
been brought up to this court by a writ of mandamus issued to the said Court of
First Instance on account of his refusal to allow the appeal, the said appeal is
now before us pending decision.

The ordinance concerned in the order appealed from the Court of First
Instance of Mindoro, reads as follows:

“An ordinance for the preservation of the fisheries of Butas and San Agustin
Rivers, which constitute a continuous source of revenue for the township of
Naujan.

“Whereas, the practice of catching fish in large numbers on their way from
Lake Naujan to their spawning ground in the sea where they deposit their eggs
has led to a marked decrease in the number of fish taken annually in the Butas
and San Agustin Rivers and will ultimately end in the destruction of the
fisheries of these rivers, which form a continuous source of revenue for the
township of Naujan: Now, therefore, Be it enacted by the council of Naujan
that:

“Article 1. On and after the 1st day of August, 1909, the construction of
fish weirs, traps, or other devices of any description opening upstream or
designed to catch fish running from Naujan Lake to deposit their eggs in the sea
is hereby prohibited on the Butas and San Agustin Rivers between October 16 and
February 15. Traps and other devices may be placed in said rivers between
October 16 and February 15 with their mouths opening downstream or in such a way
as to catch fish coming up the river to Naujan Lake, but every such trap or
device for catching fish shall have its openings at least 1 inch in diameter,
and shall otherwise be so constructed that the passage of the young fish from
the sea to Lake Naujan may otherwise be unobstructed.

“Art. 2. On and after the 1st day of August, 1909, fish weirs, traps, and
other devices may be placed in the Butas and San Agustin Rivers between February
16 and October 15 with mouths opening upstream or designed to catch fish running
from Lake Naujan to the sea. But every such trap or device for catching fish
shall have its openings at least 1 inch in diameter and shall otherwise be so
constructed that the passage of the young fish from the lake to the sea will
always be unobstructed.

“ART. 3. The taking of fish known as banacs from the sea within the
jurisdiction of the township of Naujan between the mouth of the Nag-iba River
and the point where the boundary line between Lake Naujan and Pola reaches the
sea is hereby prohibited between October 16 and February 15. From February 16 to
October 15 banacs may be taken from the sea within the jurisdiction of Naujan,
but all nets and other fishing devices used must have their openings at least 1
inch in diameter, and shall otherwise be so constructed that young fish can get
through and will not be caught.

“Art. 4. Violators of this ordinance shall, upon conviction before a court of
competent jurisdiction, be punished by a fine of P50 for the first offense, and
a fine of P10 for each subsequent offense, and in case of insolvency shall
suffer subsidiary punishment at hard labor in the municipal or provincial jail
at the rate of one day’s imprisonment for each peso of the
fine.”

From the text of the ordinance above quoted it is seen that by means thereof,
the municipal council of Naujan did nothing more than regulate the use and
enjoyment of the right to fish in the Butas, San Agustin, and Nag-iba Rivers, by
designating the seasons of the year when this right might be exercised and the
manner of so doing, in such wise that no detriment should thereby result to the
development of the said industry and occasion a decrease in the number of fish
ascending the said rivers from the sea to Naujan and Pola Lakes or descending
them again, and by prescribing for this purpose the form of the fishing weirs or
devices which might be constructed in each of the said rivers in the respective
seasons. It is logical that the regulations so established should imply the
prohibition to exercise such a right in the seasons of the year not
included.among those specified in the ordinance, and this very implication shows
that that right is not prohibited by them, but, on the contrary, is granted
through means of the necessary regulation for the protection and improvement of
the said common property of the municipality of Naujan. Under this
consideration, it is very clear that it cannot be maintained that the said
ordinance is unconstitutional, and so much the less so in that, as appears from
its very text, the alleged prohibited district mentioned in the order appealed
from is not the seacoast as therein stated, for articles 1 and 2 of the said
ordinance refer to the construction of fish weirs, traps, or other devices in
the Butas and San Agustin Rivers, and article 3 thereof, though it speaks of the
taking of fish known as banacs from the sea, limits such fishing to the
territory comprised within the jurisdicition of the township of Naujan—that is,
to the area within which the municipal council of this township can exercise its
jurisdictional powers.

With respect to the questioned validity of the said ordinance, it must be
borne in mind that section 29 (r) of Act No. 1897, The Township
Government Act, prescribes, among other duties of the township council, that it
shall: “Make such ordinances and regulations, riot repugnant to law, as may be
necessary to carry into effect and discharge the powers and duties conferred by
this Act, and such as shall seem necessary and proper to * * * promote the
prosperity * * * for the protection of property * * * and enforce obedience
thereto with such lawful fines or penalties as the council may prescribe under
the provisions of subsection (q) of this section.”

The same Act, in section 43, subsection (a), as amended by section 2
of Act No. 1689, provides, as one of the sources of revenue of the townships,
that these latter may collect fees for the granting of fishery privileges. This
provision clearly and explicitly gives it to be understood that the townships
also have the power to pass ordinances regulating fisheries or the exercise or
enjoyment of the right to fish within their respective jurisdictions, for the
granting of such privileges or of the licenses required for those purposes must
necessarily be the subject matter of proper regulations, aside from the fact
that, since one of the means of furthering the prosperity and protecting the
interests and property of the municipalities or townships, which are also those
of their inhabitants, is the adoption of rules that may conduce to the good use
and adequate, proper, and regulated enjoyment of such interests and property, it
must be understood that power has been granted to the townships to pass
ordinances and provide regulations relative to fisheries or the exercise and
enjoyment of the right to fish within their respective jurisdictional limits,
pursuant to the provisions of section 29, subsection (r), of Act No.
1397, aforementioned. That such construction of the law with regard to townships
is correct, it is sufficient to say that, although corporations both public,
among which are municipalities; as well as private have those powers that were
expressly conferred upon them by the Act which created them, or, in the case of
private corporations, by the Act under which they were organized, they also
have, pursuant to the general law on the matter (Act No. 1459, sec. 2), the
powers incident to their existence—that is, all such as have for their aim the
realization, fulfillment, and carrying out of the purposes for which such
corporations were created or organized, and others in relation to all matters
which are or may be connected with those purposes, for such is the scope and
import of the words incident to its existence, contained in the
aforecited section 2 of the Corporation Law. And inasmuch as among those
purposes, in respect to municipal councils of townships, are included all such
as may conduce to securing the greatest sum of material good for the inhabitants
of the township and their general welfare, through the improvement of the
sources of wealth and production, the development of their properties and
industries and the creation of just and adequate taxes thereon, consequently
also the township of Naujan must have had power to pass the ordinance in
question and this ordinance must be valid and legal.

For the foregoing reasons we revoke the order of dismissal appealed from and
overrule the demurrer filed by the defendant against the complaint. The case
will be remanded to the court below for further proceedings.

Arellano, C. J., Torres, Johnson, Carson, and Moreland,
JJ., concur.