BENITO TAN CHAT ET AL., PLAINTIFFS AND APPELLEES, VS. THE MUNICIPALITY OF ILOILO, DEFENDANT AND APPELLANT.

IMPERIAL, J.:


On December 14, 1931, the municipal council of
Iloilo, Province of Iloilo, passed the following ordinance:

“ORDINANCE No. 10—AMENDING ORDINANCE No. 7, SERIES
OF 1931.

“Be it enacted by the Municipal Council of
Iloilo, Province of Iloilo, by authority of Act 2711, known as the
Revised Administrative Code:

“Ordinance No. 7, series of 1931, is hereby
amended so that the same will read as follows:

“Section 1. The storing and sale of lumber and the
keeping of lumber stores are prohibited on the following streets: Jose
Ma. Basa, Andres Bonifacio, Iznart, Ledesma (from Gay Square to Mabini
Street), P. Arroyo, General Hughes, General Blanco, Rosario, Progreso,
General Luna (from Iznart to Jalandoni), Aldeguer, Zamora, Delgado,
Rizal (from Zamora to Iznart), Marina, Sto. Nino, Arsenal, Ortiz and
Cotta Drive: Provided, That the lumber stores on said streets
Jose Ma. Basa, Andres Bonifacio, Iznart, Ledesma (from Gay Square to
Mabini Street), P. Arroyo, General Hughes, General Blanco, Rosario,
Progreso, General Luna (from Iznart to Jalandoni), Aldeguer, Zamora,
Delgado, Rizal (from Zamora to Iznart), Marina, Sto. Nino, Arsenal,
Ortiz and Cotta Drive, which this municipal council considers as public
nuisance, are given six (6) months to move, from the date this ordinance
takes effect;

“SEC. 2. Violation of this ordinance shall be
punished with a line not to exceed two hundred pesos (F200), or
imprisonment not to exceed six (6) months or both penalties in the
discretion of the court;

“SEC. 3. This ordinance shall take effect on
January 1, 1932.

“Approved by the Municipal Council in its special
session held on December 14, 1931.—Adopted unanimously.”

The plaintiffs, merchants residing in said city,
instituted an action in the Court of First Instance of the province for
the purpose of annulling said ordinance, alleging that the same is
illegal and in violation of their rights. Upon a bond duly filed by them
a writ of preliminary injunction was issued which continues in force up
to this time.

In its answer the defendant interposed the following
special defenses:

“3. That the streets named in ordinance No. 10,
series of 1931, referred to in the fourth paragraph of the complaint
constitute the most important commercial and residential zone and the
most thickly populated section of the downtown district of this
municipality of Iloilo, capital of this Province of Iloilo; and
particularly Iznart Street is of the greatest importance because on said
street are located numerous and important commercial establishments and
beautiful and costly commercial and residential buildings, besides
being the principal thoroughfare used by the residents of the downtown
district of Iloilo in going to various public offices, centers of
learning and charitable institutions, and to many of the municipalities
of this province and vice versa.

“4. That in its ordinances No. 1, series of 1911;
No. 14 (15), series of 1913; No. 9, series of 1914; and No. 6, series of
1920, the defendant following a plan of expansion, urbanization,
beautification and the public safety of its inhabitants, has declared
the streets enumerated in ordinance No. 10, series of 1931, referred to
in paragraph 4 of the complaint, as zones for strong material and
fire-proof buildings.

“5. That in violation of the ordinances mentioned
in the preceding paragraph, the plaintiffs residing on Iznart Street and
other persons and entities residing on the other streets referred to in
the ordinance mentioned in paragraph 4 of the complaint, have
constructed ugly and unsightly buildings, without protection against
fire and the spread thereof, wherein they have operated and are
operating sawmills and have piled and are piling large quantities of
lumber and sawdust, thus marring the beauty of said streets and creating
a public nuisance and a source of fire which constantly threatens with
destruction and loss of valuable business and individual properties,
particularly, as far as this case is concerned, those properties
mentioned in paragraph 3 of this answer.

“6. That in accordance with the plan of
urbanization and public safety mentioned in paragraph 4 of this answer,
and in order to abate the public nuisance caused by the plaintiffs and
others as described in the preceding paragraph, and in pursuance of the
powers conferred by sections 2238, 2242 (h), and 2243 (c),
of the Administrative Code, Act 2711, this last section as amended by
Act 3259, the municipal council of Iloilo has passed ordinance No. 10,
series of 1931, referred to in paragraph 4 of the complaint and
consequently said ordinance is legal and valid.

“7. That the defendant has given the plaintiffs
ample and reasonable time to enable them to remove and transfer their
lumber stores and sawmills above mentioned, to some other place not
prohibited by the ordinance, but they refused and still refuse to do so
without legal excuse or justification.”

The defendant appealed from the judgment rendered
holding null, illegal and unconstitutional said ordinance, and declaring
final and perpetual the preliminary injunction theretofore issued, with
costs.

It appears from the evidence that the plaintiffs are
lumber merchants with their place of business on Iznart Street, some of
them having opened their business previous to the year 1931, and
consttucted their buildings of strong material with galvanized iron
roofing, some of them built on their own land and others on leased land.
Inside said buildings sawed lumber is stored and on the premises blocks
and big pieces of lumber are deposited, which are sawed by means of a
small sawmill run by petroleum belonging to the plaintiff Benito Tan
Chat. The loading of sawed lumber sold by these merchants is usually
done within said buildings without annoyance to the neighbors nor to
passers-by.

The defendant alleges that the following errors were
committed in the judgment:

“I. The lower court erred in holding that
ordinance No. 10, series of 1931, of the municipality of Iloilo is null
and void.

“II. The lower court committed error in holding
that defendant-appellant was not empowered to regulate and prohibit
plaintiff-appellees’ lumber business and yards, and by not declaring
them as a nuisance within a certain area of the townsite of Iloilo.

“III. The lower court erred in denying
defendant-appellant to establish the fact that on both sides of Iznart
Street of the municipality of Iloilo there are costly and beautiful
large buildings for commercial or store and residential purposes
immediately adjoining the saw-mills, lumber business and yards belonging
to plaintiff-appellees.”

In our opinion the only question to be determined is
whether or not the ordinance in question was enacted by the defendant
in the exercise of the powers conferred upon it by the Legislature, in
other words, in the exercise of its police power including the power to
abate public nuisances and to divide its territory into commercial and
residential zones.

Such powers are enumerated in sections 2238, 2242,
and 2243 of the Revised Administrative Code. The provisions applicable
to the instant case are 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.”

“SEC. 2242. Certain legislative powers of
mandatory character.—It shall be the duty of the municipal council,
comformably with law:

* * * * * * *

“(h) To declare and abate nuisances.”

“SEC. 2243. Certain legislative powers of
discretionary diameter.—The municipal council shall have authority
to exercise the following discretionary powers:

* * * * * * *

“(c)’To establish fire limits in populous centers,
prescribe the kinds of buildings that may be constructed or repaired
within them, and issue permits for the erection or repair thereof,
charging a fee which shall be determined by the municipal council and
which shall not be less than two pesos for each building permit and one
peso for each repair permit issued. The fees collected under the
provisions of this subsection shall accrue to the municipal school
fund.”

By virtue of the police power and the express
provisions of section 2242 (h) of the Revised Administrative
Code, there is no question that the municipalities have power to enact
ordinances for the purpose of abating public nuisances. (Switzer vs.
Municipality of Cebu, 20 Phil., Ill; Iloilo Ice & Cold Storage Co. vs.
Municipal Council of Iloilo, 24 Phil., 471.)

The question which now arises in connection herewith
is whether or not the sawmill and lumber stores of the plaintiffs
constitute nuisances per se or per accidens. Bearing
in mind the nature of such business and the indisputable fact that the
conduct thereof necessarily disturbs and annoys passers-by and the
neighbors, we do not hesitate to declare that said business constitutes
nuisance per accidens or per se.

In the case of State vs. Rosenstein (181 N.
W., 107), the Supreme Court of Minnesota said:

“It cannot seriously be doubted that the matter of
the location, and to an extent the condition and care of lumber yards,
where large quantities of lumber and building material are accumulated
in piles and tiers of piles are matters proper for appropriate police
regulation and control. The location of such yards may, even though
properly cared for by the owner, become a fire menace and a source of
danger to and destruction of surrounding property, a rendezvous for
thieves and other violators of the law, and their location at least
should be within control of the proper municipal authorities of every
city and village having a population and built-up district sufficiently
large to render them or their use a menace to public order and safety.
The Legislature could itself by appropriate statutory provisions
regulate the subject, and may delegate the authority to local
municipalities. That the authority is fully vested in the city of
Minneapolis by the quoted provisions of its charter is clear. It is
there granted in clear terms and is in no way restricted by the proviso
added thereto, as above quoted, except perhaps that regulations imposed
by city ordinances existing at the time the present charter power was
granted may not be changed. But whether the earlier regulations may be
changed or modified is not here involved. The authority thus conferred
upon the city is full and complete and sustains the ordinance in
question.”

The ordinance clearly states that the sawmill and
the sale of lumber by the plaintiffs on Iznart Street constitute public
nuisances; and although the question of fact herein involved may
properly be reviewed by the courts, the evidence of record sufficiently
justifies such conclusion. The power of the municipalities, in the
exercise of their police power, to regulate and abate public nuisances
is indisputable, when the measure taken to that end is sound and
reasonable, and redounds to the benefit of the locality. Such power has
been expressly delegated by the Legislature according to the section
above cited.

“One of the most usual powers enjoyed by municipal
corporations is that of suppressing nuisances. The abatement of
nuisances by municipal corporations is a governmental function. The
legislature may, and often does, confer such power upon them. The power
may arise by express grant or by necessary implication. It usually is
enjoyed as part of the police power, especially that part of the police
power dealing with the protection of the health of the inhabitants of
the municipal corporation. And the exercise of the power is generally
considered as a proper municipal function which it is the duty of
municipal corporations to exercise. The power to abate nuisances may
extend to abate nuisances created by public utilities.

“Primarily .it is within the power of municipal
authorities to determine and declare what shall constitute a nuisance. A
large discretion rests with the municipal governing body in determining
what constitutes nuisances. But the power must be exercised reasonably
and not arbitrarily. The declaration by municipal authorities that a
thing is a nuisance is not a final determination of the question; it is
subject to review by the courts both as to its reasonableness and as to
the thing inveighed against being in fact a nuisance. A municipal
corporation cannot make a thing a nuisance by merely declaring it to be
such. Even though the corporation is empowered to declare what shall
constitute a nuisance, it cannot declare that to be a nuisance which is
not so in fact; it cannot arbitrarily and without support of reason or
fact declare that which is harmless a nuisance. The power is limited to
such things as the common law or statute declares to be nuisances. But
the power may extend to those things which in their nature may be
nuisances but as to which there may be honest differences of opinion in
impartial minds. Things which are not in their nature nuisances but
which may become so by reason of their locality, surroundings, or the
manner in which they may be conducted, managed, etc., may, and can only,
be declared nuisances by municipal corporations when they are such in
fact. The power does not extend to include the power to suppress acts
merely vicious or immoral. But the power of a municipal corporation over
nuisances may tend to authorize it to prevent a condition likely to
become detrimental to the public health as much as it is to abate such
conditions after the evil consequences appear. In so far as the
legislature may declare nuisances, a municipal corporation nra*y be
empowered to declare by ordinance or by-law things or acts nuisances,
although they may not be such in the absence of such ordinance or
by-law. The power to regulate does not authorize entire prohibition.”
(43 C. J., pp. 401-404.)

The next question relates to the establishment of
industrial, commercial, and residential zones. This power of municipal
corporations is recognized in almost all jurisdictions. It is derived
from the police power itself and it is exercised for the protection and
benefit of the residents of a locality.

“The power of municipal corporations to enact
zonin regulations may be derived from constitutional or statutory
provisions. Within its constitutional limitations the legislature may
authorize such enactment. The power may also be derived directly from
the constitution of the state; and state constitutional provisions
conferring the power have been upheld as against the objection that they
violated the federal constitution as a denial of the equal protection
of the law, or discrimination. Also, the statutes conferring the power
have been upheld as against the objection that they were violative of
the federal constitution.” (43 C. J., pp. 333, 334.)

“It has been suggested that the police power
residing in the state legislature is sufficient to authorize the
enactment of zoning statutes, if done wisely; that zoning under the
power of eminent domain is unwise; and that there is no necessity for
constitutional amendment to provide for zoning.” (Ibid., p. 334.)

“As a general rule, subject to the limitations to
be noted hereinafter, municipal corporations may enjoy the right or
power to enact reasonable zoning regulations. Regulations to that effect
have been upheld as against the objection that they were
unconstitutional, as denial of due process or equal protection of the
law, and that they were discriminatory. The power is not an inherent
one; it can be exercised only when it is expressly conferred on the
municipal corporation or rises by necessary implication. While it has
been held that the power to enact certain zoning regulations cannot be
exercised as an incident of the municipal police power, the weight of
authority is to the effect that reasonable zoning regulations may be
proper exercise of the municipal police power. * * ?” (Ibid., pp. 334,
335.)

In the case of People vs. Cruz (54 Phil.,
24), this court said:

“It has been definitely settled by both Philippine
and American cases that in the exercise of their police power,
municipal corporations may enact ordinances and regulations on
zonification, (43 Corpus Juris, 334.) Within the powers granted to
municipal councils by section 2238 of the Revised Administrative Code,
the municipal council of Cabanatuan was authorized to enact the
zonification ordinance here in question.

“If the municipal council of Cabanatuan was
authorized to establish said zone, it was likewise authorized to
determine the kinds of machinery that might be installed therein. In
prohibiting the installation within the zone of all kinds of machinery
save those excepted in the ordinance, the municipal council has done no
more than regulate their installation.”

In the case of Seng Kee & Co. vs.
Earnshaw and Piatt (56 Phil., 204), in discussing the power of the City
of Manila to enact ordinances establishing industrial and residential
zones, this court said:

“There can be no doubt that the City of Manila has
the power to divide its territory into residential and industrial
zones, and to prescribe that offensive and unwholesome trades and
occupations are to be established exclusively in the latter zone.

” ‘The benefits to be derived by cities adopting
such regulations (zoning) may be summarized as follows: They attract a
desirable and assure a permanent citizenship; they foster pride in and
attachment to the city; they promote happiness and contentment; they
stabilize the use and value of property and promote the peace,
tranquillity, and good order of the city. We do not hesitate to say that
the attainment of these objects affords a legitimate field for the
exercise of the police power. He who owns property in such a district is
not deprived of its use by such regulations. He may use it for the
purposes to which the section in which it is located is dedicated. That
he shall not be permitted to use it to the desecration of the community
constitutes no unreasonable or permanent hardship and results in no
unjust burden.’ (State ex rel. Carter vs. Harper, 182 Wis.,
148.)

” ‘It is a matter definitely settled by both
Philippine and American cases, and the defendant-appellant so admits,
that municipal corporations may, in the exercise of their police power,
enact ordinances or regulations on zonification (43 Corpus Juris, 334).
Within the powers granted to municipal councils in section 2238 of the
Revised Administrative Code, the municipal council of Cabanatuan was
authorized to enact the zonification ordinance with which we are now
concerned.’ (People vs. Cruz, 54 Phil., 24, 27.)

“Likewise, it cannot be denied that the City of
Manila has the authority, derived from the police power, of forbidding
the appellant to continue the manufacture of toyo in the zone where it
is now situated, which has been declared residential, without providing
for any compensation; these provisions of the Revised Ordinances do not
in fact deprive Manila residents of their property without just
compensation, for it deprives them neither of the ownership nor of the
possession thereof, but simply restricts them from the use of such
property at certain places for the good of the majority of inhabitants.

” ‘The 14th Amendment protects the citizen in his
right to engage in any lawful business, but it does not prevent
legislation intended to regulate useful occupations which, because of
their nature or location, may prove injurious or offensive to the
public’ (Murphy vs. California, 225 U. S., 623.)

” ‘Police regulations are not a taking under the
right of eminent domain or a deprivation of property without due process
of law. Thus, a prohibition on the use of property, for purposes that
are declared by valid legislation to be injurious to the health, morals,
or safety of the community cannot, in any sense, be deemed a taking or
an appropriation of property for the public benefit, as such legislation
does not disturb the owner in the control or use of his property for
lawful purposes, nor restrict his right to dispose of it. It is only a
declaration by the state that its use by any one for certain forbidden
purposes is prejudicial to the public interests, the exercise of the
police power by the destruction of the property, which is itself a
public nuisance, or the prohibition of its use in a particular way,
whereby its value becomes depreciated, is very different from taking
property for public use, or from depriving a person of his property
without due process of law.’ (Mugler vs. Kansas, 123 U. S.,
623; 8 Sup. Ct, 273; 31 L. ed., 205.)”

In the case of Euclid vs. Ambler Realty
Co., 71 Law. ed., 303, 310 et seq., the Supreme Court of the United
States said:

“Building zone laws are of modern origin. They
began in this country about twenty-five years ago. Until recent years,
urban life was comparatively simple; but with the great increase and
concentration of population, problems have developed, and constantly are
developing, which require, and will continue to require, additional
restrictions in respect of the use and occupation of private lands in
urban communities. Regulations, the wisdom, necessity and validity of
which, as applied to existing conditions, are so apparent that they are
now uniformly sustained, a century ago, or even half a century ago,
probably would have been rejected as arbitrary and oppressive. Such
regulations are sustained, under the complex conditions of our day, for
reasons analogous to those which justify traffic regulations, which,
before the advent of automobiles and rapid transit street railways,
would have been condemned as fatally arbitrary and unreasonable. And in
this there is no inconsistency, for while the meaning of constitutional
guaranties never varies, the scope of their application must expand or
contract to meet the new and different conditions which are constantly
coming within the field of their operation. In a changing world, it is
impossible that it should be otherwise. But although a degree of
elasticity is thus imparted, not to the meaning, but to the application
of constitutional principles, statutes and ordinances, which, after
giving due weight to the new conditions, are found clearly not to
conform to the Constitution, of course, must fall.

“The ordinance now under review and all similar
laws and regulations must find their justification in some aspect of the
police power, asserted for the public welfare. The line which in this
field separates the legitimate from the illegitimate assumption of power
is not capable of precise delimitation. It varies with the
circumstances and conditions. A regulatory zoning ordinance, which would
be clearly valid as applied to the great cities, might be clearly
invalid as applied to rural communities. In solving doubts, the maxim
‘sic utere tuo ut alienum non laedas,’ which lies at the foundation of
so much of the common law of nuisances, ordinarily will furnish a fairly
helpful clew. And the law of nuisances, likewise, may be consulted, not
for the purpose of controlling, but for the helpful aid of its
analogies in the process of ascertaining the scope of, the power. Thus
the question whether the power exists to forbid the erection of a
building of a particular kind or for a partic ular use, like the
question whether a particular thing is a nuisance, is to be determined,
not by an abstract consideration of the building or of the thing
considered apart, but by considering it in connection with the
circumstances and the locality. Sturges vs. Bridgman, L. R. 11
Ch. Div., 852, 865—C. A. nuisance may be merely a right thing in the
wrong place,—like a pig in the parlor instead of the barnyard. If the
validity of the legislative classification for zoning purposes be fairly
debatable, the legislative judgment must be allowed to control. (Radice
vs. New York, 264 U. S., 292, 294; 68 L, ed., 690, 694; 44
Sup. Ct. Rep., 325.)

“There is no serious difference of opinion in
respect of the validity of laws and regulations fixing the height of
buildings within reasonable limits, the character of materials and
methods of construction, and the adjoining area which must be left open,
in order to minimize the danger of fire or collapse, the evils of
overcrowding, and the like, and excluding from residential sections
offensive trades, industries and structures likely to create nuisances.
(See Welch vs. Swasey, 214 U. S., 91; 53 L. ed., 923; 29 Sup.
Ct. Rep., 567; Hadacheck vs. Sebastian, 239 U. S., 394; 60 L.
ed., 348; 36 Sup. Ct. Rep., 143; Ann. Cas. 1917 B, 927; Reinman vs.
Little Rock, 237 U. S., 171; 59 L. ed., 900; 35 Sup. Ct. Rep., 511;
Thomas Cusack Co. vs. Chicago, 242 U. S., 526, 529, 530; 61 L.
ed., 472, 475; L. R. A., 1918 A, 136; 37 Sup. Ct. Rep., 190; Ann. Cas.
1917 C, 594.)

“Here, however, the exclusion is in general terms
of all industrial establishments, and it may thereby happen that not
only offensive or dangerous industries will be excluded, but those which
are neither offensive nor dangerous will share the same fate. But this
is no more than happens in respect of many practice-forbidding laws
which this court has upheld, although drawn in general terms so as to
include individual cases that may turn out to be innocuous in
themselves. (Hebe Co. vs. Shaw, 248 U. S., 297, 303; 63 L. ed.,
255, 258; 39 Sup. Ct. Rep., 125; Pierce Oil Corp. vs. Hope,
248 U. S., 498, 500; 63 L. ed., 381, 382; 39 Sup. Ct. Rep., 172.) The
inclusion of a reasonable margin to insure effective enforcement will
not put upon a law, otherwise valid, the stamp of invalidity. Such laws
may also find their justification in the fact that, in some fields, the
bad fades into the good by such insensible degrees that the two are not
capable of being readily distinguished and separated in terms of
legislation. In the light of these considerations, we are not prepared
to say that the end in view was not sufficient to justify the general
rule of the ordinance, although some industries of an innocent character
might fall within the prescribed class. It cannot be said that the
ordinance in this respect ‘passes the bounds of reason and assumes the
character of merely arbitrary fiat.’ (Purity Extract & Tonic Co. vs.
Lynch, 226 U. S., 192, 204; 57 L. ed., 184, 188; 33 Sup. Ct. Rep., 44.)
Moreover, the restrictive provisions of the ordinance in this
particular may be sustained upon the principles applicable to the
broader exclusion from residential districts of all business and trade
structures, presently to be discussed.”

In the case of In re Montgomery (163 Cal., 457), the
Supreme Court of California said:

“An ordinance of the City of Los Angeles, dividing
the territory included in the municipality into industrial and
residential districts, and prohibiting the maintenance or conduct within
the residential district of ‘any stone-crusher, rolling-mill,
machine-shop, planing-mill, carpet-beating establishment, hay-barn,
woodyard, lumber-yard, public laundry or wash-house,’ is a legitimate
and constitutional exercise of the police power of the city.”

And in the case of State vs. McDonald (121
So. R., 613, 614), the Supreme Court of Louisiana said:

“Provision of zoning ordinance requiring that
businesses in affected area must liquidate within one year and remove
from area held not harsh, arbitrary or unreasonable.

“Discretion of municipal authorities in enacting
zoning ordinances under Const. 1921, art. 14, sec. 29, and Act No. 27 of
1918, and Act No. 240 of 1926, to order removal of business
establishments from residential districts, and to fix time limits, will
not be interfered with by courts, unless its exercise is found to be
manifestly and palpably hostile and unreasonable.”

The argument that the provision of ordinance givin
the plaintiffs a fixed period, to move their sawmill and lumber stores
to some other adequate place is unconstitutional, on the ground that
said measure is confiscatory and does not provide adequate compensation,
is untenable, for the reason that in this case the city of Iloilo does
not take over the ownership of said business but simply prohibits the
conduct of said industry or business within the limits established in
the ordinance, and said prohibition is within the powers conferred upon
the municipality. In enacting the ordinance in question the city of
Iloilo has done nothing but to safeguard the health, safety, and welfare
of its inhabitants, and it is perfectly fair that the herein plaintiffs
should abide by the provisions thereof which are in accordance with the
old and well-known maxim: salus populi suprema, lex.

In view of the foregoing, the above quoted ordinance
is hereby declared valid and the judgment appealed from is reversed,
with costs of both instances against the plaintiffappellees. The
preliminary injunction heretofore issued is set aside. So ordered.

Avancena, C. J., Malcolm, Abad Santos, Vickers, and
Diaz, JJ., concur.

---

VILLA-REAL, J., :

The ordinance which the majority opinion declares to
be constitutional and valid, and by virtue of which the municipality of
Iloilo seeks to prohibit, through force, the herein plaintiffs from
selling in their own establishments and buildings erected on both sides
of Iznart Street of the municipality of Iloilo sawed lumber therein
stored, and to compel them to remove and transfer said lumber and lumber
stores to other places reads as follows:

“Section 1. The storing and sale of lumber and the
keeping of lumber stores are prohibited on the following streets: Jose
Ma. Basa, Andres Bonifacio, Iznart, Ledesma (from Gay Square to Mabini
Street), P. Arroyo, General Hughes, General Blanco, Rosario, Progreso,
General Luna (from Iznart to Jalandoni), Aldeguer, Zamora, Delgado,
Rizal (from Zamora to Iznart), Marina, Sto. Nino, Arsenal, Ortiz and
Cotta Drive: Provided, That the lumber stores on said streets Jose Ma.
Basa, Andres Bonifacio, Iznart, Ledesma (from Gay Square to Mabini
Street), P. Arroyo, General Hughes, General Blanco, Rosario, Progreso,
General Luna (from Iznart to Jalandoni), Aldeguer, Zamora, Delgado,
Rizal (from Zamora to Iznart), Marina, Sto. Nino, Arsenal, Ortiz and
Cotta Drive, which this municipal council considers as public nuisance,
are given six (6) months to move from the date this ordinance takes
effect.”

The facts to which the defendant municipality
attempts to apply the provisions of the above-quoted ordinance and which
the trial court found proven in its decision are as follows:

“That prior to the year 1931, some of the
plaintiffs opened their lumber business on both sides of Iznart Street,
of this city of Iloilo, Province of Iloilo, and for that purpose
constructed buildings of strong material with galvanized iron roofing,
suitable to the business, some on their own land and others on leased
land, with the defendant municipality’s permit, each plaintiff having
paid the corresponding license tax on business; and in said buildings
classified by the ordinance as ‘lumber stores’ there were kept for sale
by the plaintiffs blocks and pieces of lumber, sawed and planed, coming
from various parts of the archipelago;

“That the work of loading and unloading of both
the lumber received for storing as well as that sold to customers, is
done within the building of each plaintiff without molesting, annoying
or otherwise prejudicing either the neighbors or passers-by in said
Iznart Street, the only lumber store on said street having a small motor
for sawing lumber run by crude petroleum being that of the plaintiff
Benito Tan Chat who used it for cutting sawed and planed lumber in order
to meet the customers’ demand.”

The ordinance under consideration does not state for
what purpose of public interest it prohibits the “storing and sale of
lumber” on certain streets,of the municipality of Iloilo; it simply says
that said lumber stores constitute a public nuisance without explaining
how or why.

In the case of Iloilo Ice & Cold Storage Co. vs.
Municipal Council of Iloilo (24 Phil., 471), this court laid down the
following doctrine:

“2. Municipal Corporations ; Abatement op
Nuisances in Emergencies.—A nuisance which affects the immediate safety
of persons or property, or which constitutes an obstruction to the
streets and highways under circumstances presenting an emergency, may be
summarily abated under the undefined law of necessity. But, in any
case, the declaration of the municipal council that the thing or act is a
nuisance is not conclusive. The owner of the alleged nuisance has the
right to test the validity of the action of the council in a court of
law.”

And in the case of Yates vs. Milwaukee (77
U. S., 497), the Supreme Court of the United States laid down the
following doctrine:

“Facts: In the 1856 a wharf was constructed by
plaintiff on a lot owned by him near the Milwaukee River in order to
reach the navigable part of said river. In 1865 the City of Milwaukee
passed an ordinance declaring this wharf an obstruction to navigation
and a nuisance and ordered it to be abated. Hence this action:

“”Held: * * * the mere declaration by the City
Council of Milwaukee, that a certain structure was an encroachment or
obstruction,did not make it so, nor could such declaration make it a
nuisance unless it in fact had that character. It is a doctrine not to
be tolerated in this country, that a municipal corporation, without any
general laws either of the city or of the State, within which a given
structure can be shown to be a nuisance, can, by its mere declaration
that it is one, subject it to removal by any person supposed to be
aggrieved, or even by the city itself. This would place every house,
every business, and all the property of the city, at the uncontrolled
will of the temporary local authorities. Yet this seems to have been the
view taken by counsel who defended this case in the Circuit Court; for
that single ordinance of the city, declaring the wharf of Yates a
nuisance, and ordering its abatement, is the only evidence in the record
that it is a nuisance or an obstruction to navigation, or in any manner
injurious to the public.”

According to the doctrines above quoted, it is not
enough that a municipality declare that a certain business is a nuisance
or public annoyance in order to be so. but it is necessary that said
business be really so.

In volume 5, third series, p. 499 of Words &
Phrases, a comprehensive judicial definition of the word “nuisance” is
given, to wit:

“A ^nuisance’ is anything that works an injury,
harm, or prejudice to an individual or the public, and will embrace
everything that endangers life or health, offends the human senses,
transgresses laws of decency, or obstructs, impairs, or destroys the
reasonable, peaceful, and comfortable use of property.”

There is no proof showing that the lumber stores in
question affect the immediate safety of persons or property or that they
constitute an obstruction on Iznart Street of Iloilo, and therefore
there exists no compelling necessity for their summary abatement in
accordance with the doctrine laid down in the case of Iloilo Ice &
Cold Storage Co. vs. Municipal Council of Iloilo, above cited.

There is no question that in the exercise of its
police power the municipality of Iloilo may enact ordinances
establishing residential, commercial and industrial zones etc., for the
beautification of the municipality, the protection of the health of its
inhabitants, the value of real property and the safety of the buildings
from fire. But such ordinances cannot be given retroactive effect by
ordering the destruction of buildings already erected which do not
measure up to the standard therein prescribed unless they constitute a
danger to public health and morals and to the safety of the inhabitants
and their property. The right of ownership and the use and enjoyment of
property is a natural and constitutional right, of which nobody shall be
deprived without due process of law and adequate compensation, even
through the exercise of the eminent domain of the State. In accordance
with these principles a municipality can only deprive a person of the
use and enjoyment of his property when public necessity so demands as in
the case of expropriation ; or when the use and enjoyment thereof
constitute a menace to public health, morals and comfort, in which case
summary and drastic measures may be taken; or when a city is divided
into zones for the welfare of the community. It is only in the second
case, to wit, when a real “nuisance” or.public inconvenience exists,
that a summary exercise of the police power of a municipality is
authorized, and this is so because the right of ownership and the right
to use and enjoy property implies a social obligation on the part of the
owner to exercise such right without causing injury to others, and
looking to the attainment of the common good. In the first case a
complaint for expropriation is necessary and in the third case there
must be a zoning ordinance or law with prospective operation regulating
the erection of buildings and the repair of those already erected in the
residential zone, as well as the conduct of commerce and industry in
the commercial and industrial zones, but not the destruction of
buildings already erected, the removal of the business or industries
already established, unless they be a menace to public health and morals
and to the safety of persons and property.

Therefore, the ordinance under consideration is
unconstitutional and void because it is arbitrary and does not
constitute a reasonable exercise of police power.

Butte, J., with whom concur Street, Hull, and
Goddard, JJ., dissenting:

The majority sustain the validity of ordinance No.
10 of the municipality of Iloilo on two grounds: first, because the
tablerias of the appellees are a nuisance in fact, and second, because
the ordinance, being a zoning ordinance, lies within the statutory power
of the municipality.

The plaintiffs-appellees are Chinese who are
operating their tablerias under licenses from the municipality of
Iloilo. They made their investments and developed their establishments
under licenses issued by the municipality of Iloilo several years ago,
one of them as far back as the year 1918, since which time they have
regularly paid their license fees including the current year. Their
business is therefore lawful in every sense of the word. They may
properly invoke section 3 of the Organic Act of these Islands (Act of
Congress of August 29, 1916) commonly known as the Jones Law, which
provides as follows:

“SEC. 3. That no law shall be enacted in said
Islands which shall deprive any person of life, liberty, or property
without due process of law, or deny to any person therein the equal
protection of the laws. Private property shall not be taken for public
use without just compensation.”

It seems to me illogical to say that a business,
especially licensed by law, may be abated as a nuisance. The licenses
granted to the plaintiffs by the municipality of Iloilo have not been
revoked nor has the municipality tendered the plaintiffs any refund of
any portion of the license fees paid by them for the unexpired term of
their licenses. It follows that the municipality should be equitably
estopped to abate the establishments of the plaintiffs during the term
of their licenses.

It is assumed that the power granted municipalities
under section 2242, paragraph (k) of the Revised Administrative Code “To
declare and abate nuisances” authorizes a municipality to declare a
legitimate business like that of the plaintiffs to be a nuisance per
se. I am constrained to register my emphatic dissent to such a
proposition. It is a proposition so fraught with danger that I cannot
believe it was the intention of the Legislature to confer such an
unlimited power. Only such businesses as are nuisances in fact may be
declared to be nuisances per se.

It is stated in the majority opinion: “Bearing in
mind the nature of such business and the indisputable fact that the
conduct thereof necessarily disturbs and annoys passers-by, and the
neighbors, we do not hesitate to declare that said business constitutes
nuisances per accidens or per se” In support of the
aforesaid statement, the majority rely upon the case of State vs.
Rosenstein (181 N. W., 107). The passage quoted from said decision
clearly discloses that the lumber yards therein referred to are very
different in nature from the tablerias of the appellees. Lumber yards’
as they are commonly known in the States are not covered buildings like
those of the petitioners but usually consist of many piles or stacks of
lumber graded according to size which are placed out in open spaces
usually without any enclosure. It would be absurd to say of the
tdblerias of these petitioners, as is said in the case of State vs.
Rosenstein, that they are “a rendezvous for thieves and other violators
of the law” and that they may become “a menace to public order and
safety.”

Moreover, it is not correct to assume that lumber
yards in the United States are nuisances per se. I have found
no decision so holding. The following decision is directly to the
contrary: Shamburger vs. Scheurrer (198 S. W., 1069).

An examination of the decision in the case of State vs.
Rosenstein, supra, will disclose how dissimilar and inapplicable that
decision is to the case before us.

The charter of the City of Minneapolis granted by
the State expressly authorizes the city:

” ‘To regulate the piling of lumber, shingles, or
laths in said city, and to require any person maintaining any lumber,
shingle and lath pile or mill woodyard to rem6ve the same when the same
is or may become dangerous to any building, buildings or other property
near the same * * *. Provided, however, that nothing herein contained
shall interfere with the limits within which such lumber, shingles, lath
and mill wood may not be piled as now established by ordinance of said
city, or within the fire limits of said city, as now existing or which
may hereafter be established by ordinance of said city/ ” Pursuant to
this express authority, the City of Minneapolis enacted an ordinance on
March 14, 1916, the material portion of which is as follows:

” ‘Section 1. No person shall hereafter install or
open any lumber yard or erect any building for the sale or storage of
lumber within the City of Minneapolis without the consent of the city
council.” (Special attention is called to the word hereafter occurring
in section 1, supra.)

On August 6, 1919, the defendant Rosenstein applied
to the city council for a license to operate a lumber yard on premises
on which no buildings were erected. In fact he had already installed
thereon piles of lumber and other material for use in his business. The
city refused to issue a license. Notwithstanding this fact, he continued
to operate his lumber yard and was prosecuted and convicted. His
conviction was affirmed, not on the ground that his business was a
nuisance or that the ordinance in question was a zoning ordinance, but
solely on the ground that the ordinance was a police measure expresssly
authorized by the Legislature. The word “nuisance” occurs nowhere in the
opinion. The basis of the decision is summarized in the following
paragraph:

“It (the ordinance in question) follows the lines
of most police regulations, declaring that no person shall install or
conduct a lumber yard within the city without the consent or permission
of the city council. The dance halls, the peddlers, the hawkers, hackmen
and other trades, professions, and occupations are thus regulated. The
only thing required of one desiring to enter into the particular
occupation is an application to the city council for a license or permit
There is nothing unreasonable or unfair in that, and the conclusion
must be therefore that the ordinance is valid.”

The majority are not willing to rest their decision
upon the proposition that the tablerias of the appellees are a nuisance per
se, for it is stated:

“The ordinance clearly states that the sawmill and
the sale of lumber by the plaintiffs on Iznart Street constitute public
nuisances; and although the question of fact herein involved may
properly be reviewed by the courts, the evidence of record sufficiently
justifies such conclusion.”

The majority do not cite or summarize the evidence
in the record which they hold proves sufficiently that the tablerias of
the appellees constitute a nuisance in fact, and no reason is given for
rejecting the clear findings of fact of the trial court.

Upon the trial of the case in the court below the
municipality of Iloilo, in support of the ordinance, offered the
following witnesses: Victoriano Honesto, Jose Villanueva Mapa, Manuel
Zerrudo, Jose Locsin Sian and Apolonio Elegio besides Exhibits 1 to 52.
We shall now examine this evidence in detail.

Victoriano Honesto is a photographer whose testimony
is confined to the identification of Exhibits 1 to 41 which are
photographs taken by him of various buildings situated on some of the
streets mentioned in ordinance No. 10, including the establishments of
the plaintiffs. He stated that he photographed only such buildings as
were pointed out to him by the fiscal, and admitted that there were many
other buildings on the same streets which were very different from
those shown on the photographs. Apparently, the purpose of the fiscal in
selecting the most handsome buildings on the various streets covered by
the ordinance was to show that the beauty and harmony of the streets
was marred by the buildings of the plaintiffs. Apart from the fact that
the photographs are partial and misleading, they are entirely irrelevant
upon the fundamental proposition that the establishments of the
plaintiffs are a nuisance.

The second witness, Jose Villanueva Mapa, is the
secretary of the municipality of lloilo and his testimony is confined to
the identification of the ordinances and the service of copies thereof
upon the plaintiffs (Exhibits 42 to 46).

Manuel Zerrudo, the next witness, is the “maestro de
obras municipal de Iloflo” and city architect. He identified Exhibit 47
which is a plan of the city of lloilo and marked thereon the locations
of the establishments of the plaintiffs. In the course of his testimony
the fiscal stated:

“Juzgado. iQue dice usted, senor Fiscal?

“Sr. Fiscal. Con la venia del juzgado. Una de las
eontenciones del demandado es que al aprobarse esa ordenanza ha sido con
el objeto de urbanizar la Ciudad de lloilo obedeciendo al piano’ de
embellecimiento y urbanizacion; y ahora vamos a probar, senor Juez, que
en la calle Iznart hay edificios hermosos y costosos al lado de los
cuales estan esas tablerias de los demandantes que constituyen un
peligro para la comunidad y afea inclusive el sitio. Ese es el objetivo
talmente de esta serie de preguntas al testigo.”

Questions along this line were objected to and the
objections were sustained on the ground that they were impertinent,
immaterial and irrelevant.

The next witness, Jose Locsin Sian, is one of the
members of the municipal council of lloilo. Practically the entire
testimony of the witness is confined to the identification of the
various buildings shown on the photographs and an attempt to make a
comparison between Iznart Street in the City of lloilo and Avenida Rizal
in the City of Manila, beginning at Plaza de Goiti and extending to
Calle Azcarraga. The only pertinent part of his testimony that favors
the municipality of lloilo is as follows:

“P. £De que material estan hechas esas tablerias?
de los demandantes?—R. * * * este * * * por de pronto, la tableria que
esta al lado del City Hall, actualmente en la calle Iznart, y que es del
senor Ong Kim * * * pues * * * esta casi en los jardines del edificio
ese del City Hall que es de Dona Maria Gay * * • este * * * las maderas
se exponen casi al borde de la calle, se amontonan, aunque dentro hay un
poco de camino * * *.

“Sr. Zulueta. Creo que no es responsiva la
contestacidn del testigo, señor Juez.

“Juzgado. Consta en los records lo que ha
contestado el testigo. Otra pregunta, seiior Fiscal.” He admitted that
he had not been in Manila since the year 1921.

Apolonio Elegio, the municipal treasurer, was
offered to identify Exhibits 48 to 52 which are tax declarations of
Ramon Campos, Teodoro Benedicto, Manuel Ledesma, Maria Gay and Julio
Ledesma. Upon objection to this line of examination, the court asked the
fiscal the purpose of this testimony. He replied: “Probar nuestra
contenci6n de que existen edificios costosos en la calle Iznart.” The
first exhibit covers improvements in Iznart Street valued at P56,lS5;
the second, improvements in Iznart Street valued at P51,346; the third,
improvements in Iznart Street valued at P37,755; the fourth,
improvements in Iznart Street valued at P15,000; the fifth, improvements
in Bonifacio Street valued at P23,310.

It is upon this evidence—and ignoring the evidence
of the six witnesses on behalf of the plaintiffs—that we are asked to
reverse the findings of the trial court. The trial judge, who had the
witnesses before him, made the following findings:

“De los hechos probados durante el juicio nada hay
que indique alguna Iesi6n, inconveniencia, per juicio o estorbo al
ptiblico causados por las tablerias de los demandantes abiertas en ambos
lados de la calle Iznart, Iloflo, ni tampoco hay algd que pueda
estorbar, molestar, lesionar o perjudicar al ptiblico con el almacenaje,
dep6sito y expendio de maderas en propiedades privadas que bordean la
citada calle; y siendo el caso asi, una tableria en la que se deposita,
se almacena y se expende maderas, que no es nuisance per se ni
nuisance per accidens, pero declarada, calificada y considerada
por el Consejo Municipal de un municipio en una ordenanza como
nuisance, nada mas porque le ha venido en gana calificarlo asi, £se
convierte acaso en nuisance y puede ser suprimida ? El Juzgado con vista
de todas las pruebas aporiadas en el juicio no lo cree asi, porque la
mera declaracidn de que cierta construction no la convierte en tal cosa
ni puede semejante declaracidn transformarla en nuisance a menos de que
en realidad tuviera tal caracter; y tampoco concurre con la pretension
de la entidad demandada de que un concejo municipal, sin leyes generates
ya de la ciudad o del Estado segun las cuales una determinada
construccio”n pueda resultar peligrosa, pueda por el mero hecho de
declarar que lo es hacerla susceptible de remocidn por parte de
cualquiera que se considere agraviado, o aun por la misma ciudad, porque
ello vendrfa a colocar a todas las casas, a todos los negocios y a
todas las propiedades de la Ciudad de Iloilo a la merced ilimitada del
Concejo Municipal de Iloilo.

* * * * * * *

“Resulta, sin embargo, de las mismas fotograffas
aportadas como pruebas por el demandado en la vista de esta causa, que
los edificios o tablerfas contra los cuales se dirige expresamente la
ordenanza Exhibit B estan construidos de madera y techados de hierro
galvanizado, del mismo material, por tanto, que las otras casas
residenciales levantadas en ambos lados de la citada calle Iznart. En
otros te”rminos, tanto las tablerfas de los demandantes como las casas
residenciales, todas en la calle Iznart, son del mismo material, esto
es, de madera y con techado de hierro galvanizado.

* * * * * * *

“El Juzgado, despues del examen de las pruebas
aportadas en el juicio, no encuentra nada en autos que indique que las
tablerfas de los demandantes, objeto de la ordenanza Exhibit B, pueden
en algun modo ser perjudiciales a la salud y seguridad publica, o la paz
o al buen orden dentro del Mumcipio de Iloilo, o que vaya en pugna con
la comodidad o conveniencia de sus habitantes.” (Bill of Exceptions, pp.
19-22.)

Above, we have summarized all of the evidence
offered by the city of Iloilo to prove that the establishments of the
plaintiffs are nuisances in fact and we have quoted the findings of fact
of the trial court which support its conclusion that the record
signally fails to indicate that the tablerias of the plaintiffs in any
wise are injurious to the health, order, safety or convenience of the
public. But that is not all. The findings set out in the majority
opinion likewise conclusively establish the harmless nature of plainr
tiffs’ business. These findings are thus stated:

“It appears from the evidence that the plaintiffs
are lumber merchants with their place of business on Iznart Street, some
of them having opened their business previous to the year 1931, and
constructed their buildings of strong material with galvanized, iron
roofing, some of them built on their own land and others on leased land.
Inside said buildings sawed lumber is stored and on the premises blocks
and big pieces of lumber are deposited, which are sawed by means of a
small sawmill run by petroleum belonging to the plaintiff Benito Tan
Ghat. The loading of sawed lumber sold by these merchants is usually
done with said buildings without annoyance to the neighbors nor to
passers-by.”

It is probably a purely accidental circumstance that
all the plaintiffs are Chinese, but no legitimate business, not even of
a resident citizen, is safe and secure if any municipality may declare
any business to be a public nuisance upon no better proof than was
presented in this case. It is probably because he was conscious of his
utter failure to prove that the establishments of the plaintiffs were
nuisances that the fiscal resorted to the theory that ordinance No. 10
is a zoning ordinance.

Examining now this aspect of the case, we are at
once confronted by the deficiencies of the ordinance itself. Nowhere in
the ordinance is any reference made to zoning. It does not appear
whether it creates a residential zone, an industrial zone, a fire
district or any other kind of zone. On the contrary, an examination of
the map of the city of Iloilo discloses that the streets named in the
ordinance form no sort of a zone. The ordinance simply recites certain
streets for their partial or entire lengths without reference to other
streets. The establishments of the plaintiffs on Calle Iznart are not
embraced within any zone. AH of the establishments of the plaintiffs
could be moved just round the corner and continue operating without
violating the ordinance. There is no rational basis for ordinance No. 10
as a zoning ordinance and the conclusion is irresistible that the
object of the ordinance was simply to drive the plaintiffs out of calle
Iznart.

Without discussing the correct meaning of the maxim
sains populi supremo, lex, it suffices to say here that there is no
evidence in this record that the salus populi has ever been or is now in
any way jeopardized by the business establishments of the plaintiffs.
May not the salus populi be jeopardized when the rights of a humble
citizen are trampled upon by the arbitrary use of political power? When
that happens the courts are his last bulwark of defense. And it is the
glory of our judicature that here the poorest and humblest subject—be he
citizen or alien—may ask for justice, not cringingly as a beggar
soliciting alms but boldly as a creditor claiming what is due him.

Because no lawful business carried on in a lawful
manner is a nuisance per se and because the evidence in this
case miserably fails to establish that the plaintiffs’ tablerias are a
nuisance in fact, and because ordinance No. 10 of the municipality of
Iloilo does not even pretend to be a zoning ordinance, I think that the
decision of the trial court declaring this ordinance null and void as an
arbitrary, illegal and unconstitutional abuse of power is correct and
should be affirmed.