THE PEOPLE OF THE PHILIPPINES, PLAINTIFF AND APPELLANT, VS. TIMOTEO ESGUERRA ET AL., DEFENDANT AND APPELLEES.

The defendants in these twelve cases were each charged with violation of
Municipal Ordinance No. 4, series 1944, enacted by the Municipal Council of
Tacloban, Leyte, which provides the following:

“SECTION 1. It shall be unlawful for any person, association, or firm, to
manufacture, distill, produce, cure, sell, barter, offer or give or dispose of
in favor of another, possess or to have under control any intoxicating liquor,
drink or beverage, locally manufactured, distilled, produced or cured wine,
whiskey, gin, brandy and other drink containing liquor including tuba.

“SEC. 2. All permits and licenses issued for the manufacture, production or
establishment or distileries and sale of tuba, wine, whiskey, and other
alcoholic beverages, are hereby revoked and cancelled.

“SEC. 3. Any person, association or firm, who violates the provisions of this
ordinance, shall be punished, upon conviction by competent court, by a fine of
not less than one hundred pesos nor more than two hundred pesos and imprisonment
of not less than three months nor more than six months. In case of a reincidence
or second offense committed, the violator shall suffer the maximum penalty
herein prescribed, and in the event of insolvency, the violator shall suffer
imprisonment of one day for each one peso fine imposed in addition to the
imprisonment already imposed thereof by the court.

“SEC. 4. Any provisions of municipal ordinance, rules and regulations, which
are inconsistent hereof, are hereby repealed, void and null.

“SEC. 5. This Ordinance shall take effect immediately upon its approval.

“Approved, December 2, 1944.”

The informations filed against Timoteo Esguerra, Criminal Case No. 2 of the
Court of First Instance of Leyte, G. R. No. L-501, and against Teofilo
Decatoria, criminal Case No. 4 of the same court, G. R. No. L-502, charged that
each of said defendants did then and there, willfully, unlawfully, aid
feloniously sell, barter, convey, offer, give, or dispose of whisky or
intoxicating liquor to or in favor of soldiers of the United States Army, which
wine or intoxicating liquor the accused had then in their possession and under
their custody and control without any legal authority to do so.

The informations against Jose Chan, criminal case No. 7 of the Court of First
Instance of Leyte, G.R. No. L-505, Felix Labordo, criminal case No. 15, G.R.
L-510, and Pilar E. Pascual, criminal case No. 16, G.R. No. L-511, and against
the defendants in other seven (7) separate cases, charged the defendants with
having, willfully, unlawfully, and feloniously, had ,in their possession and
under their control and custody ‘”tuba” or intoxicating liquor without any legal
authority to do so.

The cases against Timoteo Esguerra, Jose Chan, Felix Labordo, and Pilar E.
Pascual were jointly heard, and the defendants moved for the dismissal of the
charge on the ground that the Ordinance No. 4, Series 1944, which, according to
the information, was by them violated is null and void, because the municipal
council of Tacloban, Leyte, had no power to enact it. The lower court, after
hearing the arguments of the prosecution and the defense, declared the ordinance
in question null and void, and dismissed the cases against the said defendants;
and also dismissed the cases against the defendants in all other cases,
presumably because the ordinance which penalizes as an offense the selling,
bartering, offering, giving away or dispensing of liquors, having been declared
null and void, the part of the same ordinance which penalizes the possession,
custody and control of liquors had to be declared null and void also, since the
latter cannot be separated from the former.

The prosecuting attorney in behalf of the plaintiff the People of the
Philippines appealed from the decision of the lower court in the twelve cases,
and all of them are now before us on appeal.

The appellant contends that the ordinance at bar was enacted by virtue of the
police power of the Municipality of Tacloban conferred by the general welfare
clause, section 2238 of the Revised Administrative Code, and is therefore
valid. Said section reads as follows:

“SEC. 2238. General power of council to enact ordinances and make,
regulations. — 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.”

We are of the opinion, and so hold, that the lower court has not erred in
declaring the ordinance No. 44, Series I944, ultravires and therefore
null and void. Under the general welfare clause, Sec. 2238 of the Revised
Adninistrative Code, a municipal council may enact such ordinances, not
repugnant to law, as shall seem necessary and proper to provide for the
health and safety, etc., of the inhabitants of the municipality. , But as the
ordinance in question prohibiting the selling, giving away and dispensing of
liquor is repugnant to the provision of section 2242 (g) of the same
Revised Administrative Code, the Municipal Council of Tacloban had no power
under said section 2238 to enact the ordinance under consideration. The
prohibition is contrary to the power granted by Sec. 2242 (g) “to
regulate the selling, giving away and dispensing of intoxicating malt, vinous,
mixed or fermented liquors at retail”; because the word “regulate” means and
includes the power to control, to govern and to restrain; and can not be
construed as synonymous with “suppress” or “prohibit”; “(Kwong Sing vs.
City of Manila, 41 Phil., 103). Since the municipality of Tacloban is empowered
only to regulate, it cannot prohibit the selling, giving away and dispensing of
intoxicating liquors, for that which is prohibited or does not legally exist can
not be regulated.

The powers, conferred upon a municipal council in the general welfare clause,
or section 2238 of the Revised Administrative Code, refers to matters not
covered by the other provisions of the same Code, and therefore it can not be
applied to intoxicating liquors, for the power to regulate the selling, giving
away and dispensing thereof is granted specifically by section 2242 (g)
to municipal councils. To hold that, under the general power granted by section
2238, a municipal council may enact the ordinance in question, notwithstanding
the provision of section 2242 (g), would be to make the latter
superflous and nugatory, because the power to prohibit, includes power to
regulate, the selling, giving away and dispensing of intoxicating liquors.

Under the charters of municipal corporations in the States of the Union, from
which the provisions of the Organic Act of our cities and municipalities were
taken, municipal corporations are generally granted, not only the specific power
to regulate the sale or traffic of intoxicating liquors, but also the general
welfare power similar to that conferred by section 2238 Of the Revised
Administrative Code. And the Courts of last resort in the said States have
uniformly held that the “legislative authority to license or regulate the sale
of intoxicating liquors does not authorize a municipality to prohibit it, either
in express terms or by imposing prohibitive license fees”. (15 R.C.L,, p.
262). And the general powers granted in the general welfare clause does not
authorize a municipal council to prohibit the sale of intoxicants, because, as
stated In American Jurisprudence, vol. 30, p. 367, “as a general rule when a
municipal corporation is specifically given authority or power to regulate or to
license and regulate the liquor traffic, power to prohibit is impliedly
withheld”.

In view of the foregoing, the appealed orders or resolutions of the lower,
court dismissing the informations in the above entitled cases, are affirmed,
without pronouncement as to costs. So ordered.

Parás, Actg. C. J.,
Perfecto, Bengzon, and Tuason, JJ., concur.