ERMITA-MALATE HOTEL AND MOTEL OPERATORS ASSOCIATION, INC., HOTEL DEL MAR, INC. AND GO CHIU, PETITIONERS-APPELLEES, VS. THE HONORABLE CITY MAYOR OF MANILA, RESPONDENT-APPELLANT, …

A Motion for the reconsideration of our decision of July 31, 1967 was filed by
petitioners, followed by a Motion for new trial.  As the Motion for, reconsideration is clearly
without merit, there is no occasion for this sought for new trial.  Consequently, both motions are denied.

(1) No merit in the Motion for reconsideration. –

In the decision of this Court of July 31, 1967, sought to be
reconsidered, its basis was categorically set forth in the following language:

“As noted at the outset, the judgment must be reversed.  A decent regard for constitutional doctrines
of a fur fundamental character ought to have admonished the lower court against
such a sweeping condemnation of the challenged ordinance.  Its decision cannot be allowed to stand,
consistently with what has hitherto been the accepted standards constitutional
adjudication, in both procedural and substantive aspects.

“Primarily what call’s for a reversal of such a decision is
the absence of any evidence to offset the presumption of validity that attaches
to a challenged statute or ordinance.  As
was expressed categorically by Justice Malcolm: 
The presumption is all in favor of validity. ***  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 necessitates action.  The local legislative body, by enacting the
ordinance, has in effect given notice that the regulations are essential the
well being of the people. *** 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.

“It admits of no doubt therefore that there being a
presumption of validity, the necessity for evidence to rebut it is unavoidable,
unless the statute or ordinance is void on its face, which is not the case
here.  The principle has been nowhere
better expressed than in the leading case of O’ Gorman & Young v. Hartford
Fire Insurance Co., where the American Supreme Court through Justice Brandeis
tersely and succinctly summed up the matter thus:  ‘The statute here questioned deals with a
subject clearly within the scope of the police power.  We are asked to declare it void on the ground
that the specific method of regulation prescribed is unreasonable and hence
deprives the plaintiff of due process of law. 
As underlying questions of fact may condition the constitutionality of
legislation of this character, the presumption of constitutionality must
prevail in the absence of some, factual foundation of record for overthrowing
the statute.’ No such factual foundation being laid in the present case, the
lower court deciding the matter on the pleadings and the stipulation of facts,
the presumption of validity must prevail and the judgment against the ordinance
set aside.”

The O’ Gorman principle^[1]
fails to meet the approval of counsel of petitioners.  They would restrain unduly and unjustifiably
its operation.  In the language of the
motion for reconsideration:  “The U.
S. Supreme Court was not laying down as a general rule in constitutional cases
that there must be a factual foundation of record to affect the presumption of
constitutionality of any and every law.“

To paraphrase Justice Brandeis, this interpretation is without
support in authority or reason and rests upon a misconception.  It is to betray an almost total lack of
awareness of the import and significance of the O’ Gorman doctrine in American
constitutional law.  Authorities on the
subject of proven competence and knowledge flatly reject such a view.  Dodd,^[2]Dowling,^[3]Freund,
Sutherland, De Wolfe Howe, and Brown,^[4]and
Kauper^[5]in
their standard casebooks quote the same excerpt from O’ Gorman vs. Hartford
Fire Ins. Co. ap­pearing in the opinion of this Court.  Dodd entertained no doubt:  “The accepted view is that stated by Mr.
Justice Brandeis in the O’ Gorman case.”^[6]

Frankfurter and Landis were equally explicit in their
appreciation of what the O’ Gorman dictum means.  “As doctrine, there is nothing new in
the avowal of a need for concreteness in passing judgment upon the legislative
judgment.  But perhaps last term marks a
more sedulous attention to its observance. 
Certainly the procedure followed by the Court in O’ Gorman & Young
v. Hartford Fife Ins. Co., if regularly observed, will affect not a little the
fate of legislation.  If insisted upon,
it will compel the bar to argue questions of legislative validity in the
perspective of the circumstances which gave rise to a particular statute.”^[7]

The late Professor Hamilton of the Yale
Law School,
one of the most distinguished constitutionalists, would have been appalled by
the unorthodoxy of the view of counsel of peti­tioners.  For him, the O’ Gorman opinion vas a
manifestation of the jurist’s art at its best:

“If the jurists have the feelings of other men Monday, the
fifth of January nineteen hundred and thirty-one, must have beer a day of
consequence in the life, of Mr. Justice Brandels.  On that day he headed down the judgment of
the United States Supreme Court in the O’ Gorman case.  The cause was a simple suit in contract:  the result depended upon the validity of a New
Jersey statute regulating the commissions to be paid
by insurance companies to their agents for securing business.  The more general question was the tolerance
to be accorded to legislative price-fixing under the Fourteenth Amendment.  And, as the fortunes of litigation broke, the
issue came to be the intel­lectual procedure by which the constitutionality of
the acts which make up the public control of business are to be
determined.  Upon that day the views of
Brandeis became ‘the opinion of the court,’ and a new chapter in judicial
history began to be written.

” * * *

“In form ‘the opinion of the court’ is a very simple and
unpretentious document.  It begins with a
statement of the issue and a history of the case, continues with a brief
summary of the reasons for the statute and a statement that ‘the business of
insurance is so affected with a public interest that the state may regulate the
rates,’ and concludes with a declaration of the test for validity.  As ‘underlying questions of fact may
condition the constitutionality of legislation of this character,’ it follows
that the presumption of constitutionality must prevail in the absence of some
factual foundation of record for overthrowing the statute. It did not appear
‘upon the face of the statute, or from any facts of which the court must take
judicial notice’ that in New Jersey
‘evils did not exist,’ for which the statute was an appropriate remedy.
Accordingly the court was compelled to declare the statute valid; in fact it
was left with no alternative.

“Yet the simple lines of a short opinion present a superb
example of the jurist’s art. * * * .”^[8]

This is not to discount the possibility of a situation where the
nullity of a statute, executive order, or ordinance may not be readily apparent
but the threat to constitutional rights, especially those involving the freedom
of the mind, present and ominous.  That
in such an event there should not be a rigid insistence on the requirement that
evidence be presented does not argue against the force of the above excerpt on
the weight to be accorded the O’ Gorman doctrine in this case,

The prop here failing, is there anything else in the Motion for
reconsideration that calls for a modification of the decision of this Court?
The answer must be in the negative.  It
ought not to have escaped petitioners that the opinion of the Court after
noting the lack of factual foundation to offset the presumption of
constitutionality went on to discuss the due process aspect to make clear that
on its face, the Ordi­nance cannot be considered void.

“Nor may petitioners assert with plausibility that on its face
the ordinance is fatally defective as being repugnant to the due process clause
of the Constitution.  The mantle of
protection associated with the due process guaranty does not cover petitioners.  This particular manifestation of a police
power measure being specifically aimed to safeguard public morals is immune
from such 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.’ It would be,
to paraphrase another leading decision, to destroy the very purpose of the
state if it could be deprived or allowed itself to be deprived of its
competence to promote public health, public morals, public safety and the
general welfare.  Negatively put, police
power is ‘that inherent and plenary power in the State which enables it to
prohibit all that is hurtful to the comfort, safety, and welfare of society.’

“There is no question but that the challenged ordinance was
precisely enacted to minimize certain practices hurtful to public morals.  The explanatory note of the then Councilor Herminio Astorga included as
annex to the stipulation of facts speaks of the alarming increase in the rate
of prostitution, adultery and fornication in Manila, traceable in great part to
the existence of motels, which ‘provide a necessary atmosphere for clandestine
entry, presence and exit’ and thus become the ‘ideal haven for prostitutes and
thrill-seekers.’ The challenged ordinance then proposes to check the
clandestine harboring of transients and guests of these establishments by
requiring these transients and guests to fill up a registration form, prepared
for the purpose, in a lobby open to public view at all times, and by
introducing several other amendatory provisions calculated to shatter the privacy
that characterizes the registration of transients and guests. Moreover, the
increase in the license fees was intended to discourage ‘establishments of the
kind from operating for purpose other than legal’ and at the same time, to
increase ‘the income of the city government.’ It would appear therefore that
the stipulation of facts, far from sustaining any attack against the validity
of the ordinance, argues eloquently for it.”

There is nothing in the Motion for reconsideration that in any
wise affects adversely or impairs the force of the above conclusion.  The task of proving that the challenged
Ordinance is void on its face is one attended with difficulty Nonetheless, with
the persistence worthy of a better cause, petitioners would cite as fatal
infirmity the alleged invasion of the rights against unreasonable search and
seizure, to liberty, and to property.

As the unchallenged rule, to paraphrase Laurel, is that unless a
person is injuriously affected in any of his constitutional rights by the
operation of statute or ordinance,^[9]
he has no standing, the invocation of petitioners as motel operators of their
alleged right to being free from unreasonable search and seizure need not be
taken seriously, Nor does their claim of the alleged infringement of their
liberty deserve any further thought, its implausibility being self-evident,
except perhaps as to the liberty to contract, which is part and parcel of their
right to property.  Unfortunately for
them, in this jurisdiction the liberty to contract, except in the Pomar^[10]
case as noted in the decision, has never stood in the way of the enactment of
police power measures when called for by circumstances such as undoubtedly
exist in this case.  The same is true in
the United states,
where such a concept has definitely fallen from its previously high state under
the impact of the Nebbia,^[11]
West Coast Hotel Co.^[12]
and Olsen decisions.^[13]

That leaves only the alleged grievance that there was an
unconstitutional invasion of property rights. 
It goes without saying that petitioners themselves cannot ignore that
one could, consistently with the fundamental law, be deprived of his property
as long as due process is observed.  The
decision makes blear that such indeed was the case as far as this Ordinance was
concerned.  To that aspect, a
considerable portion of the opinion was devoted, citing a number of applicable
decisions of this Court, all tending to demonstrate what there was no due
process infraction.  The Motion for
reconsideration is conspicuously barren of any attempt to show that under our
previous decisions referred to, the challenged Ordinance could be successfully
assailed.  It would follow then that this
reiteration of an argument, previously shown to be far from persuasive, is
deserving of a similar fate.

That is all there is to the Motion for reconsideration.  That and what Justice Cardozo
aptly referred to as reference to “grotesque or fanciful situations,”
which if they would arise could then be appropriately dealt with.  As the famed jurist aptly noted:  “That they are conceivable though
improbable ought not to govern our construction.”^[14]
That is not the way then to impugn the validity of an ordinance.  Neither could it be rightfully looked upon as
laying a foundation for setting aside a decision.  The Motion for reconsideration, to repeat, is
palpably lacking in merit.

2. No occasion for new trial. –

Subsequently, a supplemental Motion for new trial dated September 25, 1967, was filed the
same day.  As earlier pointed out, with
the Motion for reconsideration having been shown to be devoid of merit, the
supplemental Motion for new trial should likewise be denied.  In the main, what was so unsuccessfully put
forth by counsel for petitioners was adhered to.  Additional counsel would bring in new points,
namely, the alleged denial of equal protection and the repugnancy to “the laissez
faire principle underlying our-economic system, as it would
substantially reduce return on the investment.” Neither suffices to
justify any modification of the decision, much less its reconsideration.  A new trial would therefore be an exercise in
futility.

The alleged denial of equal protection was predicated on the
greater advantages that the motels in the suburbs of Manila
would enjoy as against those within the city limits.  On its face, such argument is clearly
unfounded.  If the legislative power of
the Municipal Board of the City of Manila
were not limited to its boundaries, if it could apply to the suburban area,
then perhaps plausibility could be imparted to such a claim.  Since, as is undeniable, the challenged
Ordinance applies to all the motels in Manila,
an assertion that there is denial of equal protection would, to put it at its
mildest, be extremely far-fetched.

Nor does the invocation of the laissez faire concept
as bar against the enactment of regulatory measures, which undoubtedly would
result in the diminution of income and the lose of business, occasion any
misgiving as to the conformity of the decision arrived, at by this Court with
controlling constitutional law principles. 
Did not petitioners take note of the view announced by Justice Laurel
quoted in the decision to the effect that the policy “of laissez faire
has to some extent given way to the assumption by the government of the right
of intervention even in contractual relations affected with public
interest.” The decision likewise cited this jurist, speaking for the Court
in Calalang v. Williams:^[15]
“Public welfare, then, lies at the bottom of the enactment of said law,
and the state in order to promote the general welfare may interfere with
personal liberty, with property, and with business and occupations.  Persons and property may be subjected to all
kinds of restraints and burdens, in order to secure the general comfort,
health, and prosperity of the state * * *. 
To this fundamental aim of our Government the rights of the individual
are subordinated.” That was in 1940. 
Then in 1955, came Co Kiam v. City of Manila,^[16]
where Justice Reyes, A., for h. unanimous Court categorically-declared:  “And surely, the mere fact that some
individuals in the community may be deprived of their present business or a
particular mode of earning a living can not prevent the exercise of the police
power.  As was said in a case, persons
licensed to pursue occupations which may in the public need and interest be
affected by the exercise of the police power embark in those occupations
subject to the disadvantages which may result from the legal exercise of that
power.  (City of New
Orleans v. Stafford, 27 L. Ann.
417).”

Nor does the reference by new counsel to American state court
decisions call for a different conclusion. 
The United States Supreme Court in he leading case of West Virginia
State Board of Education v. Barnette,^[17]
decided in 1943, was equally explicit, saying “the laissez-faire concept
or princi­ple of non-interference has withered at least as to economic affairs,
and social advancements are increasingly sought through closer integration of
society and through expanded end strengthened governmental controls.” Two
names of great repute, Freund and Learned Hand, were cited by petitioners.  Neither, if properly understood, could help
their cause at all.  According to Freund:  “In short, when freedom of the mind is
imperiled by law, it is freedom that commands a, momentum of respect, when
property is imperiled, it is the lawmakers’ judgment that commands
respect.  This dual standard may not
precisely reverse the presumption of constitutionality in civil liberties
cases, but obviously it does set up a hierarchy of values within the due
process clause.”^[18]
The illustrious Learned Hand writing on Chief Justice Stone’s concept of the
judicial function had occasion to note the “discredited attitude” of
what he referred to “as the old apostles of the institution of property *
* *.”^[19]

What then is left? Clearly nothing to call for the reconsideration
of our decision at July 31, 1967.  Nor is there the least justification for a
new trial and reception of evidence.

WHEREFORE, the Motion for reconsideration of petitioners
of September 16, 1967 and
supplemental Notion for new trial of September
25, 1967, are denied.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Bengzon, J.P., Zaldivar, Sanchez,
Castro, and Angeles, JJ., concur.

^[1]
Justice Brandeis in Pacific States Box v. White (1935) 296 US
176, 185, further elaborated on the above doctrine:  “The order here in question deals with a
subject clearly within the scope of the police power. See Turner v. Maryland,
107 US 38, 27
L. ed. 370, 2 S. Ct. 44. When such legislative action is
called in question, if any state of facts reasonably can be conceived that
would sustain it, there is a presumption of the existence of that state of
facts, and one who assails the classification must carry the burden of showing
by a resort to common knowledge or other matters which may be judicially
noticed, or to other legitimate proof, that the action is arbitrary.’ Borden’s
Farm Products Co. v. Baldwin, 293 US
194, 209, 79 L. ed. 281, 288, 55 S. Ct. 187. Them burden
is not sustained by making allegations ‘which are merely the general
conclusions of law or fact. See Public Service Commission v. Great
Northern Utilities Co., 289 US
130, 136, 137, 77 L. ed. 1080, 1085, 1086, 53 S. Ct.
546. Facts relied upon to rebut the presumption of constitutionality must be
specifically set forth. See Aetna Ins. Ins. Co. v. Hyde, 275 US 440, 72
L. ed. 357, 48 S. Ct. 174; O’Gorman & Young v. Hartford F. Ins. Co.,
282 US 251, 75 L. ed. 324, 51 S. Ct. 130, 72 A.L.R. 1163; liegeman Farms Corp. v.
Baldwin, 293 US 163, 79 Ltd. 259, 55 S. Ct.” Outside of the Pacific
States Box case, the O’Gorman decision has been cited with approval in Osborn v.
Orlin (1940) 310 US 53; Carolene
Products Co. v. United States (1944) 323:  US 18; California Auto Assn. v. Maloney
(1951) 341 US 105; and Seagram and Sons v. Hostetter(1966)
16 L. ed. 336. Referring to the O’Gorman doctrine, it has been said:  “The propriety of such a change in the
method of approach to constitutional questions, even though it way involve
overruling previously decided cases, has been recognized since the days of
Taney.” (Comment, 42 Yale Law Journal 1258 [1933].

^[2]
Dodd, Cases on Constitutional Law (1949) 4th ed., p. 86.

^[3]
Dowling, Cases on Constitutional Law (1950) 4th ed., p. 769.

^[4]
Freund, Sutherland, De Wolfe Howe, and Brown, Constitutional Law:  Cases and Other Problems 1954), p. 122

^[5] Kauper, Constitutional .Law Cases and Materials (1960)
p.62.

^[6]
Dodd, op. cit., p. 87.

^[7]
Frankfurter and Landis, The Business a of the Supreme Court at October Term, 1930.
(193) 45 Marv. Law Rev., 271, 325.

^[8]
Hamilton, The Jurist’s Art (1931), 31 Col.
Law Rev. 1073-1075.

^[9]
People v. Vera (1937) 65 Phil. 56, 89.

^[10] 46
Phil. 440 (1924).

^[11] 291
US 502(1934).

^[12] 300
US 379 (1937).

^[13] 313
US 1305 (1942).

^[14]
Gaines v. City of New York
(1915) 109 N. E. 594, 596.

^[15] 70
Mil. 726, 733.

^[16]
96 Phil. 649, 654.

^[17] 319
US 624.

^[18]
Freund, On Understanding the Supreme Court (1950) p. 11.

^[19]
46 Columbia Law Rev. 698 (1946).