Ermita Malate v City of Manila 20 SCRA 849 (1967)

Facts:
Ermita-Malate Hotel and Motel Operators Association, and one of its members Hotel
del Mar Inc. petitioned for the prohibition of Ordinance 4670 on June 14, 1963 to be
applicable in the city of Manila.

They claimed that the ordinance was beyond the powers of the Manila City Board to
regulate due to the fact that hotels were not part of its regulatory powers. They also
asserted that Section 1 of the challenged ordinance was unconstitutional and void for
being unreasonable and violative of due process insofar because it would impose
P6,000.00 license fee per annum for first class motels and P4,500.00 for second class
motels; there was also the requirement that the guests would fill up a form
specifying their personal information.

There was also a provision that the premises and facilities of such hotels, motels and
lodging houses would be open for inspection from city authorites. They claimed this
to be violative of due process for being vague.

The law also classified motels into two classes and required the maintenance of
certain minimum facilities in first class motels such as a telephone in each room, a
dining room or, restaurant and laundry. The petitioners also invoked the lack of due
process on this for being arbitrary.

It was also unlawful for the owner to lease any room or portion thereof more than
twice every 24 hours.

There was also a prohibition for persons below 18 in the hotel.

The challenged ordinance also caused the automatic cancellation of the license of the
hotels that violated the ordinance.

The lower court declared the ordinance unconstitutional.

Hence, this appeal by the city of Manila.

Issue:
Whether Ordinance No. 4760 of the City of Manila is violative of the due process
clause?

Held:
No. Judgment reversed.

Ratio:
"The presumption is towards the validity of a law.” However, 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.

O'Gorman & Young v. Hartford Fire Insurance Co- Case was in the scope of police
power. As underlying questions of fact may condition the constitutionality of
legislation of this character, the resumption 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.”

There is no question but that the challenged ordinance was precisely enacted to
minimize certain practices hurtful to public morals, particularly fornication and
prostitution. Moreover, the increase in the licensed 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."

Police power is the power to prescribe regulations to promote the health, morals,
peace, good order, safety and general welfare of the people. In view of
the requirements of due process, equal protection and other applicable constitutional
guaranties, however, the power must not be unreasonable or violative of due
process.

There is no controlling and precise definition of due process. It has a standard to

which the governmental action should conform in order that deprivation of life,
liberty or property, in each appropriate case, be valid. What then is the standard of
due process which must exist both as a procedural and a substantive requisite to free
the challenged ordinance from legal infirmity? It is responsiveness to the supremacy
of reason, obedience to the dictates of justice. Negatively put, arbitrariness is ruled
out and unfairness avoided.
Due process is not a narrow or "technical conception with fixed content unrelated to
time, place and circumstances," decisions based on such a clause requiring a "close
and perceptive inquiry into fundamental principles of our society." Questions of due
process are not to be treated narrowly or pedantically in slavery to form or phrase.

Nothing in the petition is sufficient to prove the ordinance’s nullity for an alleged
failure to meet the due process requirement.

Cu Unjieng case: Licenses for non-useful occupations are also incidental to the police
power and the right to exact a fee may be implied from the power to license and
regulate, but in fixing amount of the license fees the municipal corporations are
allowed a much wider discretion in this class of cases than in the former, and aside
from applying the well-known legal principle that municipal ordinances must not be
unreasonable, oppressive, or tyrannical, courts have, as a general rule, declined to
interfere with such discretion. Eg. Sale of liquors.
Lutz v. Araneta- Taxation may be made to supplement the state’s police power.

In one case- “much discretion is given to municipal corporations in determining the

amount," here the license fee of the operator of a massage clinic, even if it were
viewed purely as a police power measure.
On the impairment of freedom to contract by limiting duration of use to twice every
24 hours- It was not violative of due process. 'Liberty' as understood in democracies,
is not license; it is 'liberty regulated by law.' Implied in the term is restraint by law
for the good of the individual and for the greater good of the peace and order of
society and the general well-being.
Laurel- The citizen should achieve the required balance of liberty and authority in
his mind through education and personal discipline, so that there may be established
the resultant equilibrium, which means peace and order and happiness for all.

The freedom to contract no longer "retains its virtuality as a living principle, unlike
in the sole case of People v Pomar. 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.

What may be stressed sufficiently is that if the liberty involved were freedom of the
mind or the person, the standard for the validity of governmental acts is much more
rigorous and exacting, but where the liberty curtailed affects at the most rights of
property, the permissible scope of regulatory measure is wider.
On the law being vague on the issue of personal information, the maintenance of
establishments, and the “full rate of payment”- Holmes- “We agree to all the
generalities about not supplying criminal laws with what they omit but there is no
canon against using common sense in construing laws as saying what they
obviously mean."
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-24693 July 31, 1967

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.
VICTOR ALABANZA, intervenor-appellee.

Panganiban, Abad and Associates Law Office for respondent-appellant.

J. M. Aruego, Tenchavez and Associates for intervenor-appellee.

FERNANDO, J.:

The principal question in this appeal from a judgment of the lower court in an action
for prohibition is whether Ordinance No. 4760 of the City of Manila is violative of
the due process clause. The lower court held that it is and adjudged it
"unconstitutional, and, therefore, null and void." For reasons to be more specifically
set forth, such judgment must be reversed, there being a failure of the requisite
showing to sustain an attack against its validity.

The petition for prohibition against Ordinance No. 4760 was filed on July 5, 1963 by
the petitioners, Ermita-Malate Hotel and Motel Operators Association, one of its
members, Hotel del Mar Inc., and a certain Go Chiu, who is "the president and
general manager of the second petitioner" against the respondent Mayor of the City
of Manila who was sued in his capacity as such "charged with the general power and
duty to enforce ordinances of the City of Manila and to give the necessary orders for
the faithful execution and enforcement of such ordinances." (par. 1). It was alleged
that the petitioner non-stock corporation is dedicated to the promotion and
protection of the interest of its eighteen (18) members "operating hotels and motels,
characterized as legitimate businesses duly licensed by both national and city
authorities, regularly paying taxes, employing and giving livelihood to not less than
2,500 person and representing an investment of more than P3 million."1 (par. 2). It
was then alleged that on June 13, 1963, the Municipal Board of the City of Manila
enacted Ordinance No. 4760, approved on June 14, 1963 by the then Vice-Mayor
Herminio Astorga, who was at the time acting as Mayor of the City of Manila. (par.
3).

After which the alleged grievances against the ordinance were set forth in detail.
There was the assertion of its being beyond the powers of the Municipal Board of the
City of Manila to enact insofar as it would regulate motels, on the ground that in the
revised charter of the City of Manila or in any other law, no reference is made to
motels; that Section 1 of the challenged ordinance is unconstitutional and void for
being unreasonable and violative of due process insofar as it would impose
P6,000.00 fee per annum for first class motels and P4,500.00 for second class motels;
that the provision in the same section which would require the owner, manager,
keeper or duly authorized representative of a hotel, motel, or lodging house to
refrain from entertaining or accepting any guest or customer or letting any room or
other quarter to any person or persons without his filling up the prescribed form in a
lobby open to public view at all times and in his presence, wherein the surname,
given name and middle name, the date of birth, the address, the occupation, the sex,
the nationality, the length of stay and the number of companions in the room, if any,
with the name, relationship, age and sex would be specified, with data furnished as
to his residence certificate as well as his passport number, if any, coupled with a
certification that a person signing such form has personally filled it up and affixed
his signature in the presence of such owner, manager, keeper or duly authorized
representative, with such registration forms and records kept and bound together, it
also being provided that the premises and facilities of such hotels, motels and
lodging houses would be open for inspection either by the City Mayor, or the Chief
of Police, or their duly authorized representatives is unconstitutional and void again
on due process grounds, not only for being arbitrary, unreasonable or oppressive but
also for being vague, indefinite and uncertain, and likewise for the alleged invasion
of the right to privacy and the guaranty against self-incrimination; that Section 2 of
the challenged ordinance classifying motels into two classes and requiring the
maintenance of certain minimum facilities in first class motels such as a telephone in
each room, a dining room or, restaurant and laundry similarly offends against the
due process clause for being arbitrary, unreasonable and oppressive, a conclusion
which applies to the portion of the ordinance requiring second class motels to have a
dining room; that the provision of Section 2 of the challenged ordinance prohibiting
a person less than 18 years old from being accepted in such hotels, motels, lodging
houses, tavern or common inn unless accompanied by parents or a lawful guardian
and making it unlawful for the owner, manager, keeper or duly authorized
representative of such establishments to lease any room or portion thereof more than
twice every 24 hours, runs counter to the due process guaranty for lack of certainty
and for its unreasonable, arbitrary and oppressive character; and that insofar as the
penalty provided for in Section 4 of the challenged ordinance for a subsequent
conviction would, cause the automatic cancellation of the license of the offended
party, in effect causing the destruction of the business and loss of its investments,
there is once again a transgression of the due process clause.

There was a plea for the issuance of preliminary injunction and for a final judgment
declaring the above ordinance null and void and unenforceable. The lower court on
July 6, 1963 issued a writ of preliminary injunction ordering respondent Mayor to
refrain from enforcing said Ordinance No. 4760 from and after July 8, 1963.

In the a answer filed on August 3, 1963, there was an admission of the personal
circumstances regarding the respondent Mayor and of the fact that petitioners are
licensed to engage in the hotel or motel business in the City of Manila, of the
provisions of the cited Ordinance but a denial of its alleged nullity, whether on
statutory or constitutional grounds. After setting forth that the petition did fail to
state a cause of action and that the challenged ordinance bears a reasonable relation,
to a proper purpose, which is to curb immorality, a valid and proper exercise of the
police power and that only the guests or customers not before the court could
complain of the alleged invasion of the right to privacy and the guaranty against self
incrimination, with the assertion that the issuance of the preliminary injunction ex
parte was contrary to law, respondent Mayor prayed for, its dissolution and the
dismissal of the petition.
Instead of evidence being offered by both parties, there was submitted a stipulation
of facts dated September 28, 1964, which reads:

1. That the petitioners Ermita-Malate Hotel and Motel Operators Association,

Inc. and Hotel del Mar Inc. are duly organized and existing under the laws of
the Philippines, both with offices in the City of Manila, while the petitioner
Go Chin is the president and general manager of Hotel del Mar Inc., and the
intervenor Victor Alabanza is a resident of Baguio City, all having the
capacity to sue and be sued;

2. That the respondent Mayor is the duly elected and incumbent City Mayor
and chief executive of the City of Manila charged with the general power and
duty to enforce ordinances of the City of Manila and to give the necessary
orders for the faithful execution and enforcement of such ordinances;

3. That the petitioners are duly licensed to engage in the business of operating
hotels and motels in Malate and Ermita districts in Manila;

4. That on June 13, 1963, the Municipal Board of the City of Manila enacted
Ordinance No. 4760, which was approved on June 14, 1963, by Vice-Mayor
Herminio Astorga, then the acting City Mayor of Manila, in the absence of the
respondent regular City Mayor, amending sections 661, 662, 668-a, 668-b and
669 of the compilation of the ordinances of the City of Manila besides
inserting therein three new sections. This ordinance is similar to the one
vetoed by the respondent Mayor (Annex A) for the reasons stated in its 4th
Indorsement dated February 15, 1963 (Annex B);

5. That the explanatory note signed by then Councilor Herminio Astorga was
submitted with the proposed ordinance (now Ordinance 4760) to the
Municipal Board, copy of which is attached hereto as Annex C;

6. That the City of Manila derived in 1963 an annual income of P101,904.05

from license fees paid by the 105 hotels and motels (including herein
petitioners) operating in the City of Manila.1äwphï1.ñët

Thereafter came a memorandum for respondent on January 22, 1965, wherein stress
was laid on the presumption of the validity of the challenged ordinance, the burden
of showing its lack of conformity to the Constitution resting on the party who assails
it, citing not only U.S. v. Salaveria, but likewise applicable American authorities. Such
a memorandum likewise refuted point by point the arguments advanced by
petitioners against its validity. Then barely two weeks later, on February 4, 1965, the
memorandum for petitioners was filed reiterating in detail what was set forth in the
petition, with citations of what they considered to be applicable American
authorities and praying for a judgment declaring the challenged ordinance "null and
void and unenforceable" and making permanent the writ of preliminary injunction
issued.

After referring to the motels and hotels, which are members of the petitioners
association, and referring to the alleged constitutional questions raised by the party,
the lower court observed: "The only remaining issue here being purely a question of
law, the parties, with the nod of the Court, agreed to file memoranda and thereafter,
to submit the case for decision of the Court." It does appear obvious then that
without any evidence submitted by the parties, the decision passed upon the alleged
infirmity on constitutional grounds of the challenged ordinance, dismissing as is
undoubtedly right and proper the untenable objection on the alleged lack of
authority of the City of Manila to regulate motels, and came to the conclusion that
"the challenged Ordinance No. 4760 of the City of Manila, would be unconstitutional
and, therefore, null and void." It made permanent the preliminary injunction issued
against respondent Mayor and his agents "to restrain him from enforcing the
ordinance in question." Hence this appeal.

As noted at the outset, the judgment must be reversed. A decent regard for
constitutional doctrines of a 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 of constitutional adjudication, in both procedural and
substantive aspects.

Primarily what calls 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 x x x . The action of the elected representatives of the people
cannot be lightly set aside. The councilors must, in the very nature of things, be
familiar with the necessities of their particular municipality and with all the facts
and circumstances which surround the subject and necessitate action. The local
legislative body, by enacting the ordinance, has in effect given notice that the
regulations are essential to the well being of the people x x x . 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.2

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.,3 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 resumption 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.

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,4 extending as it does "to all the great public needs."5 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 genera welfare.6 Negatively put,
police power is "that inherent and plenary power in the State which enables it to
prohibit all that is hurt full to the comfort, safety, and welfare of society.7

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
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 licensed 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.

It is a fact worth noting that this Court has invariably stamped with the seal of its
approval, ordinances punishing vagrancy and classifying a pimp or procurer as a
vagrant;8 provide a license tax for and regulating the maintenance or operation of
public dance halls;9 prohibiting gambling;10 prohibiting jueteng;11 and
monte; prohibiting playing of panguingui on days other than Sundays or legal
12

holidays;13 prohibiting the operation of pinball machines;14 and prohibiting any

person from keeping, conducting or maintaining an opium joint or visiting a place
where opium is smoked or otherwise used,15 all of which are intended to protect
public morals.

On the legislative organs of the government, whether national or local, primarily rest
the exercise of the police power, which, it cannot be too often emphasized, is the
power to prescribe regulations to promote the health, morals, peace, good order,
safety and general welfare of the people. In view of the requirements of due process,
equal protection and other applicable constitutional guaranties however, the exercise
of such police power insofar as it may affect the life, liberty or property of any
person is subject to judicial inquiry. Where such exercise of police power may be
considered as either capricious, whimsical, unjust or unreasonable, a denial of due
process or a violation of any other applicable constitutional guaranty may call for
correction by the courts.

We are thus led to considering the insistent, almost shrill tone, in which the objection
is raised to the question of due process.16 There is no controlling and precise
definition of due process. It furnishes though a standard to which the governmental
action should conform in order that deprivation of life, liberty or property, in each
appropriate case, be valid. What then is the standard of due process which must
exist both as a procedural and a substantive requisite to free the challenged
ordinance, or any governmental action for that matter, from the imputation of legal
infirmity sufficient to spell its doom? It is responsiveness to the supremacy of reason,
obedience to the dictates of justice. Negatively put, arbitrariness is ruled out and
unfairness avoided. To satisfy the due process requirement, official action, to
paraphrase Cardozo, must not outrun the bounds of reason and result in sheer
oppression. Due process is thus hostile to any official action marred by lack of
reasonableness. Correctly it has been identified as freedom from arbitrariness. It is
the embodiment of the sporting idea of fair play.17 It exacts fealty "to those strivings
for justice" and judges the act of officialdom of whatever branch "in the light of
reason drawn from considerations of fairness that reflect [democratic] traditions of
legal and political thought."18 It is not a narrow or "technical conception with fixed
content unrelated to time, place and circumstances,"19 decisions based on such a
clause requiring a "close and perceptive inquiry into fundamental principles of our
society."20 Questions of due process are not to be treated narrowly or pedantically in
slavery to form or phrases.21

It would thus be an affront to reason to stigmatize an ordinance enacted precisely to

meet what a municipal lawmaking body considers an evil of rather serious
proportion an arbitrary and capricious exercise of authority. It would seem that what
should be deemed unreasonable and what would amount to an abdication of the
power to govern is inaction in the face of an admitted deterioration of the state of
public morals. To be more specific, the Municipal Board of the City of Manila felt the
need for a remedial measure. It provided it with the enactment of the challenged
ordinance. A strong case must be found in the records, and, as has been set forth,
none is even attempted here to attach to an ordinance of such character the taint of
nullity for an alleged failure to meet the due process requirement. Nor does it lend
any semblance even of deceptive plausibility to petitioners' indictment of Ordinance
No. 4760 on due process grounds to single out such features as the increased fees for
motels and hotels, the curtailment of the area of freedom to contract, and, in certain
particulars, its alleged vagueness.

Admittedly there was a decided increase of the annual license fees provided for by
the challenged ordinance for hotels and motels, 150% for the former and over 200%
for the latter, first-class motels being required to pay a P6,000 annual fee and second-
class motels, P4,500 yearly. It has been the settled law however, as far back as 1922
that municipal license fees could be classified into those imposed for regulating
occupations or regular enterprises, for the regulation or restriction of non-useful
occupations or enterprises and for revenue purposes only.22 As was explained more
in detail in the above Cu Unjieng case: (2) Licenses for non-useful occupations are
also incidental to the police power and the right to exact a fee may be implied from
the power to license and regulate, but in fixing amount of the license fees the
municipal corporations are allowed a much wider discretion in this class of cases
than in the former, and aside from applying the well-known legal principle that
municipal ordinances must not be unreasonable, oppressive, or tyrannical, courts
have, as a general rule, declined to interfere with such discretion. The desirability of
imposing restraint upon the number of persons who might otherwise engage in non-
useful enterprises is, of course, generally an important factor in the determination of
the amount of this kind of license fee. Hence license fees clearly in the nature of
privilege taxes for revenue have frequently been upheld, especially in of licenses for
the sale of liquors. In fact, in the latter cases the fees have rarely been declared
unreasonable.23

Moreover in the equally leading case of Lutz v. Araneta24 this Court affirmed the
doctrine earlier announced by the American Supreme Court that taxation may be
made to implement the state's police power. Only the other day, this Court had
occasion to affirm that the broad taxing authority conferred by the Local Autonomy
Act of 1959 to cities and municipalities is sufficiently plenary to cover a wide range
of subjects with the only limitation that the tax so levied is for public purposes, just
and uniform.25

As a matter of fact, even without reference to the wide latitude enjoyed by the City
of Manila in imposing licenses for revenue, it has been explicitly held in one case
that "much discretion is given to municipal corporations in determining the
amount," here the license fee of the operator of a massage clinic, even if it were
viewed purely as a police power measure.26 The discussion of this particular matter
may fitly close with this pertinent citation from another decision of significance: "It is
urged on behalf of the plaintiffs-appellees that the enforcement of the ordinance
could deprive them of their lawful occupation and means of livelihood because they
can not rent stalls in the public markets. But it appears that plaintiffs are also dealers
in refrigerated or cold storage meat, the sale of which outside the city markets under
certain conditions is permitted x x x . 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 cannot 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
these occupations subject to the disadvantages which may result from the legal
exercise of that power."27

Nor does the restriction on the freedom to contract, insofar as the challenged
ordinance makes it unlawful for the owner, manager, keeper or duly authorized
representative of any hotel, motel, lodging house, tavern, common inn or the like, to
lease or rent room or portion thereof more than twice every 24 hours, with a proviso
that in all cases full payment shall be charged, call for a different conclusion. Again,
such a limitation cannot be viewed as a transgression against the command of due
process. It is neither unreasonable nor arbitrary. Precisely it was intended to curb the
opportunity for the immoral or illegitimate use to which such premises could be,
and, according to the explanatory note, are being devoted. How could it then be
arbitrary or oppressive when there appears a correspondence between the
undeniable existence of an undesirable situation and the legislative attempt at
correction. Moreover, petitioners cannot be unaware that every regulation of
conduct amounts to curtailment of liberty which as pointed out by Justice Malcolm
cannot be absolute. Thus: "One thought which runs through all these different
conceptions of liberty is plainly apparent. It is this: 'Liberty' as understood in
democracies, is not license; it is 'liberty regulated by law.' Implied in the term is
restraint by law for the good of the individual and for the greater good of the peace
and order of society and the general well-being. No man can do exactly as he
pleases. Every man must renounce unbridled license. The right of the individual is
necessarily subject to reasonable restraint by general law for the common good x x x
The liberty of the citizen may be restrained in the interest of the public health, or of
the public order and safety, or otherwise within the proper scope of the police
power."28

A similar observation was made by Justice Laurel: "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 x
x x To this fundamental aim of our Government the rights of the individual are
subordinated. Liberty is a blessing without which life is a misery, but liberty should
not be made to prevail over authority because then society will fall into anarchy.
Neither should authority be made to prevail over liberty because then the individual
will fall into slavery. The citizen should achieve the required balance of liberty and
authority in his mind through education and personal discipline, so that there may
be established the resultant equilibrium, which means peace and order and
happiness for all.29

It is noteworthy that the only decision of this Court nullifying legislation because of
undue deprivation of freedom to contract, People v. Pomar,30 no longer "retains its
virtuality as a living principle. 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.31 What may be stressed sufficiently is that if
the liberty involved were freedom of the mind or the person, the standard for the
validity of governmental acts is much more rigorous and exacting, but where the
liberty curtailed affects at the most rights of property, the permissible scope of
regulatory measure is wider.32 How justify then the allegation of a denial of due
process?

Lastly, there is the attempt to impugn the ordinance on another due process ground
by invoking the principles of vagueness or uncertainty. It would appear from a
recital in the petition itself that what seems to be the gravamen of the alleged
grievance is that the provisions are too detailed and specific rather than vague or
uncertain. Petitioners, however, point to the requirement that a guest should give the
name, relationship, age and sex of the companion or companions as indefinite and
uncertain in view of the necessity for determining whether the companion or
companions referred to are those arriving with the customer or guest at the time of
the registry or entering the room With him at about the same time or coming at any
indefinite time later to join him; a proviso in one of its sections which cast doubt as
to whether the maintenance of a restaurant in a motel is dependent upon the
discretion of its owners or operators; another proviso which from their standpoint
would require a guess as to whether the "full rate of payment" to be charged for
every such lease thereof means a full day's or merely a half-day's rate. It may be
asked, do these allegations suffice to render the ordinance void on its face for alleged
vagueness or uncertainty? To ask the question is to answer it. From Connally v.
General Construction Co.33 to Adderley v. Florida,34 the principle has been consistently
upheld that what makes a statute susceptible to such a charge is an enactment either
forbidding or requiring the doing of an act that men of common intelligence must
necessarily guess at its meaning and differ as to its application. Is this the situation
before us? A citation from Justice Holmes would prove illuminating: "We agree to all
the generalities about not supplying criminal laws with what they omit but there is
no canon against using common sense in construing laws as saying what they
obviously mean."35

That is all then that this case presents. As it stands, with all due allowance for the
arguments pressed with such vigor and determination, the attack against the validity
of the challenged ordinance cannot be considered a success. Far from it. Respect for
constitutional law principles so uniformly held and so uninterruptedly adhered to
by this Court compels a reversal of the appealed decision.

Wherefore, the judgment of the lower court is reversed and the injunction issued
lifted forthwith. With costs.

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

Footnotes
1The eighteen members are Waldorf Hotel, Hotel Monte Carlo, Golden Gate Motel, Miami Hotel, Palm

Spring Hotel, Flamingo Motel, Holiday Motel, Rainbow Motel, Palo Alto Hotel, Paradise Hotel, Mayfair
Hotel, Siesta Court, Sun Valley Hotel, Springfield Hotel, New Palace Hotel, Hotel del Mar Longbeach
Hotel and Ritz Motel.
2U.S. V. Salaveria (1918), 39 Phil. 102, at p. 111. There was an affirmation of the presumption of validity

of municipal ordinance as announced in the leading Salaveria decision in Eboña v. Daet, (1950) 85 Phil.
369.
3282 US 251, 328, January 5, 1931.
4Cf. Ichong v. Hernandez, (1957) 101 Phil. 1155, at p. 1163. Also: "To Frankfurter the police power, true

to its etymology is the power to shape policy. It defies legal definition; as a response to the dynamic
aspects of society, it cannot be reduced to a constitutional formula. The law must be sensitive to life; in
resolving cases, it must not fall back upon sterile claims; its judgments are not derived from an abstract
duel between liberty and the police power. Instead, in a world of trusts and unions and large-scale
industry, it must meet the challenge of drastic social change. For him as for Holmes, 'society is more
than bargain and business' and the jurist's art rises to no higher peak than in vindicating interests not
represented by the items in a balance-sheet. In a progressive society, new interests emerge, new
attitudes appeal, social consciousness quickens. In the face of the unknown one cannot choose with
certainty. Nor as yet, has the whole of truth been brought up from its bottomless well and how fragile in
scientific proof is the ultimate validity of any particular economic adjustment. Social development is a
process of trial and error; in the making of policy the fullest possible opportunity must be given for the
play of the human mind. If Congress or legislature does not regulate, laissez faire — not the individual —
must be the regulator. (Hamilton, Preview of a Justice (1939) 48 Yale Law Journal, 819).
5Noble state Bank v. Haskell, 219 U.S. 412.
6U.S. v. Gomez-Jesus, (1915) 31 Phil. 218.
7Rubi v. Provincial Board, (1918) 39 Phil. 660.
8U.S. vs. Giner Cruz, (1918) 38 Phil. 677.
9U.S. vs. Rodriguez, (1918) 38 Phil. 759. See also Sarmiento v. Belderol, L-15719, May 31, 1961; Lapera v.

Vicente, L-18102, June 30, 1962.

10U.S. v. Pacis, (1915) 31 Phil. 524.
11U.S. vs. Espiritu-Santo, (1912) 23 Phil. 610; U.S. vs. Joson, (1913) 26 Phil. 1; People vs. Chan Hong,

(1938) 65 Phil. 625.

12U.S. v. Tamparong, (1915) 31 Phil. 321.
13U.S. v. Salaveria, (1918) 39 Phil. 102.
14Uy Ha v. The City Mayor, L-14149, May 30, 1969; Miranda v. City of Manila, L-17252, May 31, 1961.
15U.S. v. Ten Yu, (1912) 24 Phil. 1.
16There is no occasion to consider even cursorily the alleged invasion of the right of privacy or the

prohibition against self-incrimination. Petitioners obviously are not the proper parties to do so. Nor may
such an incurable defect be remedied by an accommodating intervenor "who has always taken
advantage of as he exclusively relies on, the facilities, services and accommodations offered by
petitioner-motels. A general merchant, doing business not only in Baguio City but in the City of Manila,
has no legitimate cause for complaint. At least, not according to the case as it has been developed.
17Frankfurter, Mr. Justice Holmes and the Supreme Court, (1938) pp. 32- 33.
18Frankfurter, Hannah v. Larche, (1960) 363 U.S. 420, at 487.
19Cafeteria Workers v. McElroy, (1961) 367 U.S. 1230.
20Bartkus v. Illinois, (1959) 359 U.S. 121.
21Pearson v. McGraw, (1939) 308 U.S. 313.
22Cu Unjieng v. Postpone, (1922) 42 Phil. 818, 828.
23Citing Swarth v. People, 109 Ill. 621; Dennehy v. City of Chicago, 120 Ill. 627; 12 N.E., 227; United
States Distilling Co. v. City of Chicago, 112 Ill. 19: Drew County v. Bennet, 43 Ark. 364; Merced County
v. Fleming, Ill Cal. 46; 43 Pac. 392; Williams v. City Council of West Point, 68 Ga. 816; Cheny v.
Shellbyville, 19 Ind. 84; Wiley y. Owens, 39 Ind. 429; Sweet v. City of Wabash, 41 Ind. 7; Jones v. Grady,
25 La. Ann. 586; Goldsmith v. City of New Orleans, 31 La. Ann. 646; People ex rel., Cramer v. Medberry,
39 N.Y.S. 207; 17 Misc. Rep., 8 ; McGuigan v. Town of Belmont, 89 Wis. 637; 62 N.W., 421; Ex
parte Burnett 30 Ala. 461; Craig v. Burnett 32 Ala., 728, and Muhlenbrinck v. Long Branch
Commissioner, 42 N.J.L. 364; 36 Am. Rep., 518. At pp. 829-830.
2498 Phil. 148 (1955), citing Great Atl & Pac. Tea Co. v Grosjean, 301 U.S. 412, 81 L. Ed. 1193; U.S. v.

Butler, 297 US 1, 80 L. Ed 477; M'Culloch v. Maryland, 4 Wheat 316, 4 L. Ed 579. The Lutz decision was
followed in Republic v. Bacolod Murcia Milling, L-19824, July 9, 1966.
25Ormoc Sugar Co. v. Municipal Board of Ormoc City, L-24322, July 21, 1967.
26Physical Therapy Organization v. Municipal Board, (1957) 101 Phil. 1142.
27Co Kian & Lee Ban v. City of Manila, (1955) 96 Phil. 649, 654, citing City of New Orleans v. Stafford, 27

L. Ann. 417.
28Rubi v. Provincial Board, (1919) 39 Phil. 660, at 706, citing Hall v. Geiger-Jones (1916), 242 U.S. 539;

Hardie-Tynes Manufacturing Co. vs. Cruz (1914), 189 Ala. 66.

29Calalang v. Williams (1940), 70 Phil. 726, at 733-734.
3046 Phil. 440 (1924). The Philippines was then under American sovereignty, American Supreme Court

decisions having thus an obligatory effect. No alternative was left to this Court except to follow the then
controlling decision in Adkins v. Children's Hospital (1924), 261 U.S. 525, which subsequently was
overruled in West Coast Hotel v. Parrish (1937), 300 U.S. 379.
31Antamok Goldfields Mining Co. v. Court (1940), 70 Phil. 340, at 360, quoting a concurring opinion of

Justice Laurel in Ang Tibay v. Court, G.R. No. 46496.

32Cf. "In weighing arguments of the parties it is important to distinguish between the due process clause

of the Fourteenth Amendment as an instrument for transmitting the principles of the First Amendment
and those cases in which it is applied for its own sake. The test of legislation which collides with the
Fourteenth Amendment because it also collides with the principles of the First, is much more definite
than the test when only the Fourteen is involved. Much of the vagueness of the due process clause
disappears when the specific prohibition of the First become its standard. The right of a State to
regulate, for example, a public utility may well include, so far as the due process test is concerned,
power to impose all of the restrictions which a legislature may have a 'rational basis' for adopting. But
freedoms of speech and of press, of assembly, and of worship may well be infringed on such slender
grounds. They are susceptible of restriction only to prevent an immediate danger to interests which the
state may lawfully protect." (West Virginia State Bd. of Edu v. Barnette, (1942), 319 U.S. 624, at 639).
33269 U.S. 385 (1926).
3417 L. ed. 2d 149, Nov. 14, 1966.
35Roschen v. Ward (1929), 279 U. S. 337,339.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-14078 March 7, 1919

RUBI, ET AL. (manguianes), plaintiffs,

vs.
THE PROVINCIAL BOARD OF MINDORO, defendant.

D. R. Williams & Filemon Sotto for plaintiff.

Office of the Solicitor-General Paredes for defendant.

MALCOLM, J.:

In one of the cases which denote a landmark in American Constitutional History

(Worcester vs. Georgia [1832], 6 Pet., 515), Chief Justice Marshall, the first luminary
of American jurisprudence, began his opinion (relating to the status of an Indian)
with words which, with a slight change in phraseology, can be made to introduce
the present opinion — This cause, in every point of view in which it can be placed, is
of the deepest interest. The legislative power of state, the controlling power of the
constitution and laws, the rights if they have any, the political existence of a people,
the personal liberty of a citizen, are all involved in the subject now to be considered.

To imitate still further the opinion of the Chief Justice, we adopt his outline and
proceed first, to introduce the facts and the issues, next to give a history of the so
called "non-Christians," next to compare the status of the "non-Christians" with that
of the American Indians, and, lastly, to resolve the constitutional questions
presented.

I. INTRODUCTION.

This is an application for habeas corpus in favor of Rubi and other Manguianes of the
Province of Mindoro. It is alleged that the Maguianes are being illegally deprived of
their liberty by the provincial officials of that province. Rubi and his companions are
said to be held on the reservation established at Tigbao, Mindoro, against their will,
and one Dabalos is said to be held under the custody of the provincial sheriff in the
prison at Calapan for having run away form the reservation.

The return of the Solicitor-General alleges:

1. That on February 1, 1917, the provincial board of Mindoro adopted

resolution No. 25 which is as follows:

The provincial governor, Hon. Juan Morente, Jr., presented the following
resolution:

"Whereas several attempts and schemes have been made for the
advancement of the non-Christian people of Mindoro, which were all a
failure,
 "Whereas it has been found out and proved that unless some other
measure is taken for the Mangyan work of this province, no successful
result will be obtained toward educating these people.

"Whereas it is deemed necessary to obliged them to live in one place in

order to make a permanent settlement,

"Whereas the provincial governor of any province in which non-

Christian inhabitants are found is authorized, when such a course is
deemed necessary in the interest of law and order, to direct such
inhabitants to take up their habitation on sites on unoccupied public
lands to be selected by him and approved by the provincial board.

"Whereas the provincial governor is of the opinion that the sitio of

Tigbao on Lake Naujan is a place most convenient for the Mangyanes
to live on, Now, therefore be it

"Resolved, that under section 2077 of the Administrative Code, 800 hectares of
public land in the sitio of Tigbao on Naujan Lake be selected as a site for the
permanent settlement of Mangyanes in Mindoro subject to the approval of the
Honorable Secretary of the Interior, and

"Resolved further, That Mangyans may only solicit homesteads on this

reservation providing that said homestead applications are previously
recommended by the provincial governor."

2. That said resolution No. 25 (series 1917) of the provincial board of Mindoro
was approved by the Secretary of the Interior of February 21, 1917.

3. That on December 4, 1917, the provincial governor of Mindoro issued

executive order No. 2 which says:

"Whereas the provincial board, by Resolution No. 25, current series,

has selected a site in the sitio of Tigbao on Naujan Lake for the
permanent settlement of Mangyanes in Mindoro.

"Whereas said resolution has been duly approve by the Honorable, the
Secretary of the Interior, on February 21, 1917.

"Now, therefore, I, Juan Morente, jr., provincial governor of Mindoro,

pursuant to the provisions of section 2145 of the revised
Administrative Code, do hereby direct that all the Mangyans in the
townships of Naujan and Pola and the Mangyans east of the Baco River
including those in the districts of Dulangan and Rubi's place in
Calapan, to take up their habitation on the site of Tigbao, Naujan Lake,
not later than December 31, 1917.

"Any Mangyan who shall refuse to comply with this order shall upon
conviction be imprisoned not exceed in sixty days, in accordance with
section 2759 of the revised Administrative Code."
 4. That the resolution of the provincial board of Mindoro copied in paragraph
1 and the executive order of the governor of the same province copied in
paragraph 3, were necessary measures for the protection of the Mangyanes of
Mindoro as well as the protection of public forests in which they roam, and to
introduce civilized customs among them.

5. That Rubi and those living in his rancheria have not fixed their dwelling
within the reservation of Tigbao and are liable to be punished in accordance
with section 2759 of Act No. 2711.

6. That the undersigned has not information that Doroteo Dabalos is being
detained by the sheriff of Mindoro but if he is so detained it must be by virtue
of the provisions of articles Nos. 2145 and 2759 of Act No. 2711.

It thus appears that the provincial governor of Mindoro and the provincial board
thereof directed the Manguianes in question to take up their habitation in Tigbao, a
site on the shore of Lake Naujan, selected by the provincial governor and approved
by the provincial board. The action was taken in accordance with section 2145 of the
Administrative Code of 1917, and was duly approved by the Secretary of the Interior
as required by said action. Petitioners, however, challenge the validity of this section
of the Administrative Code. This, therefore, becomes the paramount question which
the court is called upon the decide.

Section 2145 of the Administrative Code of 1917 reads as follows:

SEC. 2145. Establishment of non-Christina upon sites selected by provincial

governor. — With the prior approval of the Department Head, the provincial
governor of any province in which non-Christian inhabitants are found is
authorized, when such a course is deemed necessary in the interest of law and
order, to direct such inhabitants to take up their habitation on sites on
unoccupied public lands to be selected by him an approved by the provincial
board.

In connection with the above-quoted provisions, there should be noted section 2759
of the same Code, which read as follows:

SEC. 2759. Refusal of a non-Christian to take up appointed habitation. — Any non-

Christian who shall refuse to comply with the directions lawfully given by a
provincial governor, pursuant to section two thousand one hundred and
forty-five of this Code, to take up habitation upon a site designated by said
governor shall upon conviction be imprisonment for a period not exceeding
sixty days.

The substance of what is now found in said section 2145 is not new to Philippine
law. The genealogical tree of this section, if we may be permitted to use such
terminology, would read: Section 2077, Administrative Code of 1916; section 62, Act
No. 1397; section 2 of various special provincial laws, notably of Act No. 547,
specifically relating to the Manguianes; section 69, Act No. 387.

Section 2145 and its antecedent laws make use of the term "non-Christians." This
word, as will later be disclosed, is also found in varying forms in other laws of the
Philippine Islands. In order to put the phrase in its proper category, and in order to
understand the policy of the Government of the Philippine Islands with reference to
the uncivilized elements of the Islands, it is well first of all to set down a skeleton
history of the attitude assumed by the authorities towards these "non-Christians,"
with particular regard for the legislation on the subject.

II. HISTORY.

A. BEFORE ACQUISITION OF THE PHILIPPINE BY THE UNITED STATES.

The most important of the laws of the Indies having reference to the subject at hand
are compiled in Book VI, Title III, in the following language.

LAW I.

The Emperor Charles and the Prince, the governor, at Cigales, on March 21,
1551. Philip II at Toledo, on February 19, 1560. In the forest of Segovia on
September 13, 1565. In the Escorial on November 10, 1568. Ordinance 149 of
the poblaciones of 1573. In San Lorenzo, on May 20, 1578,

THAT THE "INDIOS" BE REDUCED INTO "POBLACIONES" COMMUNITIES).

In order that the indios may be instructed in the Sacred Catholic Faith and the
evangelical law, and in order that they may forget the blunders of their
ancient rites and ceremonies to the end that they may live in harmony and in
a civilized manner, it has always been endeavored, with great care and special
attention, to use all the means most convenient to the attainment of these
purposes. To carry out this work with success, our Council of the Indies and
other religious persons met at various times; the prelates of new Spain
assembled by order of Emperor Charles V of glorious memory in the year one
thousand five hundred and forty-six — all of which meetings were actuated
with a desire to serve God an our Kingdom. At these meetings it was resolved
that indios be made to live in communities, and not to live in places divided
and separated from one another by sierras and mountains, wherein they are
deprived of all spiritual and temporal benefits and wherein they cannot profit
from the aid of our ministers and from that which gives rise to those human
necessities which men are obliged to give one another. Having realized that
convenience of this resolution, our kings, our predecessors, by different
orders, have entrusted and ordered the viceroys, presidents, and governors to
execute with great care and moderation the concentration of
the indios into reducciones; and to deal with their doctrine with such
forbearance and gentleness, without causing inconveniences, so that those
who would not presently settle and who would see the good treatment and
the protection of those already in settlements would, of their own accord,
present themselves, and it is ordained that they be not required to pay taxes
more than what is ordered. Because the above has been executed in the
greater part of our Indies, we hereby order and decree that the same be
complied with in all the remaining parts of the Indies, and
the encomederos shall entreat compliance thereof in the manner and form
prescribed by the laws of this title.

xxx xxx xxx

LAW VIII.

Philip II at the Pardo, on December 1, 1573. Philip III at Madrid, October 10,
1618.

THE "REDUCCTIONES" BE MADE IN ACCORDANCE WITH THE CONDITIONS

OF THIS LAW.

The places wherein the pueblos and reducciones shall be formed should have
the facilities of waters. lands, and mountains, ingress and egress, husbandry
and passageway of one league long, wherein the indios can have their live
stock that they may not be mixed with those of the Spaniards.

LAW IX.

Philip II at Toledo, on February 19, 1956.

THAT THE "INDIOS" IN "REDUCCIONES" BE NOT DEPRIVED OF THE LANDS

PREVIOUSLY HELD BY THEM.

With more good-will and promptness, the indios shall be concentrated

in reducciones. Provided they shall not be deprived of the lands and granaries
which they may have in the places left by them. We hereby order that no
change shall be made in this respect, and that they be allowed to retain the
lands held by them previously so that they may cultivate them and profit
therefrom.

xxx xxx xxx

LAW XIII.

THE SAME AS ABOVE.

THAT THE "REDUCCIONES" BE NOT REMOVED WITHOUT ORDER OF THE

KING, VICEROY, OR COURT.

No governor, or magistrate, or alcalde mayor, or any other court, has the right
to alter or to remove thepueblos or the reducciones once constituted and
founded, without our express order or that of the viceroy, president, or the
royal district court, provided, however, that the encomenderos, priests,
or indios request such a change or consent to it by offering or giving
information to that en. And, because these claims are often made for private
interests and not for those of the indios, we hereby order that this law be
always complied with, otherwise the change will be considered fraudulently
obtained. The penalty of one thousand pesos shall be imposed upon the judge
or encomendero who should violate this law.

LAW XV.

Philip III at Madrid, on October 10, 1618.

THAT THERE BE MAYORS AND ALDERMEN IN THE "REDUCTIONES," WHO
SHALL BE "INDIOS."

We order that in each town and reduccion there be a mayor, who should be
an indio of the same reduccion; if there be more than eighty houses, there
should be two mayors and two aldermen, also indios; and, even if the town be
a big one, there should, nevertheless, be more than two mayors and four
aldermen, If there be less than eighty indios but not less than forty, there
should be not more than one mayor and one alderman, who should annually
elect nine others, in the presence of the priests , as is the practice in town
inhabited by Spaniards and indios.

LAW XXI.

Philip II, in Madrid, On May 2, 1563, and on November 25, 1578. At Tomar,
on May 8, 1581. At Madrid, on January 10, 1589. Philip III, at Todesillas, on
July 12, 1600. Philip IV, at Madrid, on October 1 and December 17, 1646. For
this law and the one following, see Law I, Tit. 4, Book 7.

THAT IN THE TOWNS OF THE "INDIOS," THERE SHALL LIVE NO SPANIARDS,

NEGROES, "MESTIZOS," AND MULATTOES.

We hereby prohibit and forbid Spaniards, negroes, mulattores, or mestizos to

live to live in the reduccionesand towns and towns of the indios, because it has
been found that some Spaniards who deal, trade, live, and associate with the
indios are men of troublesome nature, of dirty ways of living; robbers,
gamblers, and vicious and useless men; and, to avoid the wrongs done them,
the indios would leave their towns and provinces; and the negroes, mestizos,
and mulattoes, besides maltreating them and utilizing their services,
contaminate them with their bad customs, idleness, and also some of their
blunders and vices which may corrupt and pervert the goal which we desire
to reach with regard to their salvation, increase, and tranquillity. We hereby
order the imposition of grave penalties upon the commission of the acts
above-mentioned which should not be tolerated in the towns, and that the
viceroys, presidents, governors, and courts take great care in executing the
law within their powers and avail themselves of the cooperation of the
ministers who are truly honest. As regards the mestizos and Indian and
Chinese half-breeds (zambaigos), who are children of indiasand born among
them, and who are to inherit their houses and haciendas, they all not be
affected by this law, it appearing to be a harsh thing to separate them from
their parents. (Law of the Indies, vol. 2, pp. 228, 229, 230, 231.)

A clear exposition of the purposes of the Spanish government, in its efforts to

improve the condition of the less advanced inhabitants of the Islands by
concentrating them in "reducciones," is found in the Decree of the Governor-General
of the Philippine Islands of January 14, 1881, reading as follows:

It is a legal principle as well as a national right that every inhabitant of a

territory recognized as an integral part of a nation should respect and obey
the laws in force therein; while, on other hand, it is the duty to conscience and
to humanity for all governments to civilize those backward races that might
exist in the nation, and which living in the obscurity of ignorance, lack of all
 the nations which enable them to grasp the moral and material advantages
that may be acquired in those towns under the protection and vigilance
afforded them by the same laws.

It is equally highly depressive to our national honor to tolerate any longer the
separation and isolation of the non-Christian races from the social life of the
civilized and Christian towns; to allow any longer the commission of
depredations, precisely in the Island of Luzon wherein is located the seat of
the representative of the Government of the, metropolis.

It is but just to admit the fact that all the governments have occupied
themselves with this most important question, and that much has been
heretofore accomplished with the help and self-denial of the missionary
fathers who have even sacrificed their lives to the end that those degenerate
races might be brought to the principles of Christianity, but the means and the
preaching employed to allure them have been insufficient to complete the
work undertaken. Neither have the punishments imposed been sufficient in
certain cases and in those which have not been guarded against, thus giving
and customs of isolation.

As it is impossible to consent to the continuation of such a lamentable state of

things, taking into account the prestige which the country demands and the
inevitable duty which every government has in enforcing respect and
obedience to the national laws on the part of all who reside within the
territory under its control, I have proceeded in the premises by giving the
most careful study of this serious question which involves important interests
for civilization, from the moral and material as well as the political
standpoints. After hearing the illustrious opinions of all the local authorities,
ecclesiastics, and missionaries of the provinces of Northern Luzon, and also
after finding the unanimous conformity of the meeting held with the
Archbishop of Manila, the Bishops of Jaro and Cebu, and the provincial
prelates of the orders of the Dominicans, Agustinians, Recoletos, Franciscans,
and Jesuits as also of the meeting of the Council of Authorities, held for the
object so indicated, I have arrived at an intimate conviction of the inevitable
necessity of proceeding in a practical manner for the submission of the said
pagan and isolated races, as well as of the manner and the only form of
accomplishing such a task.

For the reasons above stated and for the purpose of carrying out these objects,
I hereby promulgate the following:

DECREE.

1. All the indian inhabitants (indios) of the Islands of Luzon are, from this
date, to be governed by the common law, save those exceptions prescribed in
this decree which are bases upon the differences of instructions, of the
customs, and of the necessities of the different pagan races which occupy a
part of its territory.

2. The diverse rules which should be promulgated for each of these races —
which may be divided into three classes; one, which comprises those which
live isolated and roaming about without forming a town nor a home; another,
made up of those subdued pagans who have not as yet entered completely
the social life; and the third, of those mountain and rebellious pagans — shall
be published in their respective dialects, and the officials, priests, and
missionaries of the provinces wherein they are found are hereby entrusted in
the work of having these races learn these rules. These rules shall have
executive character, beginning with the first day of next April, and, as to their
compliance, they must be observed in the manner prescribed below.

3. The provincial authorities in conjunction with the priests shall proceed,

from now on, with all the means which their zeal may suggest to them, to the
taking of the census of the inhabitants of the towns or settlement already
subdued, and shall adopt the necessary regulations for the appointment of
local authorities, if there be none as yet; for the construction of courts and
schools, and for the opening or fixing up of means of communication,
endeavoring, as regards the administrative organization of the said towns or
settlements, that this be finished before the first day of next July, so that at the
beginning of the fiscal year they shall have the same rights and obligations
which affect the remaining towns of the archipelago, with the only exception
that in the first two years they shall not be obliged to render personal services
other than those previously indicated.

4. So long as these subdued towns or settlements are located infertile lands

appropriate for cultivation, the inhabitants thereof shall not be obliged to
move their dwelling-houses; and only in case of absolute necessity shall a new
residence be fixed for them, choosing for this purpose the place most
convenient for them and which prejudices the least their interest; and, in
either of these cases, an effort must be made to establish their homes with the
reach of the sound of the bell.

5. For the protection and defense of these new towns, there shall be
established an armed force composed precisely of native Christian, the
organization and service of which shall be determined in a regulations based
upon that of the abolished Tercios de Policia (division of the Guardia Civil).

6. The authorities shall see to it that the inhabitants of the new towns
understand all the rights and duties affecting them and the liberty which they
have as to where and now they shall till their lands and sell the products
thereof, with the only exception of the tobacco which shall be bought by
the Hacienda at the same price and conditions allowed other producers, and
with the prohibition against these new towns as well as the others from
engaging in commerce of any other transaction with the rebellious indios, the
violation of which shall be punished with deportation.

7. In order to properly carry out this express prohibition, the limits of the
territory of the rebellious indios shall be fixed; and whoever should go beyond
the said limits shall be detained and assigned governmentally wherever
convenient.

8. For the purpose of assisting in the conversion of the pagans into the
fraternity of the Catholic Church, all by this fact along be exempt for eight
years from rendering personal labor.
9. The authorities shall offer in the name of the State to the races not subdued
(aetas and mountains igorrots the following advantages in returns for their
voluntary submission: to live in towns; unity among their families; concession
of good lands and the right to cultivate them in the manner they wish and in
the way them deem most productive; support during a year, and clothes upon
effecting submission; respect for their habits and customs in so far as the same
are not opposed to natural law; freedom to decide of their own accord as to
whether they want to be Christians or not; the establishment of missions and
families of recognized honesty who shall teach, direct, protect, and give them
security and trust them; the purchase or facility of the sale of their harvests;
the exemption from contributions and tributes for ten years and from
the quintas (a kind of tax) for twenty years; and lastly, that those who are
governed by the local authorities as the ones who elect such officials under
the direct charge of the authorities of the province or district.

10. The races indicated in the preceding article, who voluntarily admit the
advantages offered, shall, in return, have the obligation of constituting their
new towns, of constructing their town hall, schools, and country roads which
place them in communication with one another and with the Christians;
provided, the location of these towns be distant from their actual residences,
when the latter do not have the good conditions of location and cultivations,
and provided further the putting of families in a place so selected by them be
authorized in the towns already constituted.

11. The armed force shall proceed to the prosecution and punishment of the
tribes, that, disregarding the peace, protection, and advantages offered them,
continue in their rebellious attitude on the first of next April, committing from
now on the crimes and vexations against the Christian towns; and for the this
purposes, the Captain General's Office shall proceed with the organization of
the divisions of the Army which, in conjunction with the rural guards
(cuadrilleros), shall have to enter the territory of such tribes. On the expiration
of the term, they shall destroy their dwelling-houses, labors, and implements,
and confiscate their products and cattle. Such a punishment shall necessarily
be repeated twice a year, and for this purpose the military headquarters shall
immediately order a detachment of the military staff to study the zones where
such operations shall take place and everything conducive to the successful
accomplishment of the same.

12. The chiefs of provinces, priests, and missioners, local authorities, and
other subordinates to my authorities, local authorities, and other subordinates
to may authority, civil as well as military authorities, shall give the most
effective aid and cooperation to the said forces in all that is within the
attributes and the scope of the authority of each.

13. With respect to the reduccion of the pagan races found in some of the
provinces in the southern part of the Archipelago, which I intend to visit, the
preceding provisions shall conveniently be applied to them.

14. There shall be created, under my presidency as Governor-General, Vice-

Royal Patron, a council or permanent commission which shall attend to and
decide all the questions relative to the application of the foregoing regulations
 that may be brought to it for consultations by the chiefs of provinces and
priests and missionaries.

15. The secondary provisions which may be necessary, as a complement to the

foregoing, in brining about due compliance with this decree, shall be
promulgated by the respective official centers within their respective
jurisdictions. (Gaceta de Manila, No. 15) (Diccionario de la Administracion, vol. 7,
pp. 128-134.)

B. AFTER ACQUISITON OF THE PHILIPPINES BY THE UNITED STATES.

Ever since the acquisition of the Philippine Islands by the United States, the question
as to the best method for dealing with the primitive inhabitants has been a
perplexing one.

1. Organic law.

The first order of an organic character after the inauguration of the American
Government in the Philippines was President McKinley's Instructions to the
Commission of April 7, 1900, later expressly approved and ratified by section 1 of
the Philippine Bill, the Act of Congress of July 1, 1902. Portions of these instructions
have remained undisturbed by subsequent congressional legislation. One paragraph
of particular interest should here be quoted, namely:

In dealing with the uncivilized tribes of the Islands, the Commission should
adopt the same course followed by Congress in permitting the tribes of our
North American Indians to maintain their tribal organization and government
and under which many of these tribes are now living in peace and
contentment, surrounded by civilization to which they are unable or
unwilling to conform. Such tribal governments should, however, be subjected
to wise and firm regulation; and, without undue or petty interference,
constant and active effort should be exercised to prevent barbarous practices
and introduce civilized customs.

Next comes the Philippine Bill, the Act of Congress of July 1, 1902, in the nature of an
Organic Act for the Philippines. The purpose of section 7 of the Philippine Bill was to
provide for a legislative body and, with this end in view, to name the prerequisites
for the organization of the Philippine Assembly. The Philippine Legislature,
composed of the Philippine Commission and the Philippine Assembly, was to have
jurisdiction over the Christian portion of the Islands. The Philippine Commission
was to retain exclusive jurisdiction of that part of said Islands inhabited by Moros or
other non-Christian tribes.

The latest Act of Congress, nearest to a Constitution for the Philippines, is the Act of
Congress of August 29, 1916, commonly known as the Jones Law. This transferred
the exclusive legislative jurisdiction and authority theretofore exercised by the
Philippine Commission, to the Philippine Legislature (sec. 12). It divided the
Philippine Islands into twelve senatorial districts, the twelfth district to be composed
of the Mountain Province, Baguio, Nueva Vizcaya, and the Department of Mindanao
and Sulu. The Governor-General of the Philippine Islands was authorized to appoint
senators and representatives for the territory which, at the time of the passage of the
Jones Law, was not represented in the Philippine Assembly, that is, for the twelfth
district (sec. 16). The law establish a bureau to be known as the "Bureau of non-
Christian Tribes" which shall have general supervision over the public affairs of the
inhabitants which are represented in the Legislature by appointed senators and
representatives( sec. 22).

Philippine organic law may, therefore, be said to recognized a dividing line between
the territory not inhabited by Moros or other non-Christian tribes, and the territory
which Moros or other non-Christian tribes, and the territory which is inhabited by
Moros or other non-Christian tribes.

2. Statute law.

Local governments in the Philippines have been provided for by various acts of the
Philippine Commission and Legislature. The most notable are Acts Nos. 48 and 49
concerning the Province of Benguet and the Igorots; Act NO. 82, the Municipal Code;
;Act no. 83, the Provincial Government Act; Act No. 183, the Character of the city of
Manila; Act No. 7887, providing for the organization and government of the Moro
Province; Act No. 1396, the Special Provincial Government Act; Act No. 1397, the
Township Government Act; Act No. 1667, relating to the organization of settlements;
Act No. 1963, the Baguio charger; and Act No. 2408, the Organic Act of the
Department of Mindanao and Sulu. The major portion of these laws have been
carried forward into the Administrative Codes of 1916 an d1917.

Of more particular interest are certain special laws concerning the government of the
primitive peoples. Beginning with Act No. 387, sections 68-71, enacted on April 9,
1902, by the United States Philippine Commission, having reference to the Province of
Nueva Vizcaya, Acts Nos. 4111, 422, 445, 500, 547, 548, 549, 550, 579, 753, 855, 1113,
1145, 4568, 1306 were enacted for the provinces of Abra, Antique, Bataan, Ilocos
Norte, Ilocos Sur, Isabela. Lepanto-Bontoc, Mindoro, Misamis, Nueva Vizcaya,
Pangasinan, Paragua (Palawan), Tarlac, Tayabas, and Zambales. As an example of
these laws, because referring to the Manguianes, we insert Act No. 547:

No. 547. — AN ACT PROVIDING FOR THE ESTABLISHMENT OF

LOCAL CIVIL GOVERNMENTS FOR THE MANGUIANES IN THE
PROVINCE OF MINDORO.

By authority of the United States, be it enacted by the Philippine Commission, that:

SECTION 1. Whereas the Manguianes of the Provinces of Mindoro have not

progressed sufficiently in civilization to make it practicable to bring them
under any form of municipal government, the provincial governor is
authorized, subject to the approval of the Secretary of the Interior, in dealing
with these Manguianes to appoint officers from among them, to fix their
designations and badges of office, and to prescribe their powers and duties:
Provided, That the powers and duties thus prescribed shall not be in excess of
those conferred upon township officers by Act Numbered Three hundred and
eighty-seven entitled "An Act providing for the establishment of local civil
Governments in the townships and settlements of Nueva Vizcaya."

SEC. 2. Subject to the approval of the Secretary of the Interior, the provincial
governor is further authorized, when he deems such a course necessary in the
interest of law and order, to direct such Manguianes to take up their
 habitation on sites on unoccupied public lands to be selected by him and
approved by the provincial board. Manguianes who refuse to comply with
such directions shall upon conviction be imprisonment for a period not
exceeding sixty days.

SEC. 3. The constant aim of the governor shall be to aid the Manguianes of his
province to acquire the knowledge and experience necessary for successful
local popular government, and his supervision and control over them shall be
exercised to this end, an to the end that law and order and individual freedom
shall be maintained.

SEC. 4. When in the opinion of the provincial board of Mindoro any

settlement of Manguianes has advanced sufficiently to make such a course
practicable, it may be organized under the provisions of sections one to sixty-
seven, inclusive, of Act Numbered three hundred and eighty-seven, as a
township, and the geographical limits of such township shall be fixed by the
provincial board.

SEC. 5. The public good requiring the speedy enactment of this bill, the
passage of the same is hereby expedited in accordance with section two of 'An
Act prescribing the order of procedure by the Commission in the enactment of
laws,' passed September twenty-sixth, nineteen hundred.

SEC. 6. This Act shall take effect on its passage.

Enacted, December 4, 1902.

All of these special laws, with the exception of Act No. 1306, were repealed by Act
No. 1396 and 1397. The last named Act incorporated and embodied the provisions in
general language. In turn, Act No. 1397 was repealed by the Administrative Code of
1916. The two Administrative Codes retained the provisions in questions.

These different laws, if they of the non-Christian inhabitants of the Philippines and a
settled and consistent practice with reference to the methods to be followed for their
advancement.

C. TERMINOLOGY.

The terms made use of by these laws, organic and statutory, are found in varying
forms.

"Uncivilized tribes" is the denomination in President McKinley's instruction to the

Commission.

The most commonly accepted usage has sanctioned the term "non-Christian tribes."
These words are to be found in section 7 of the Philippine Bill and in section 22 of the
Jones Law. They are also to be found in Act No. 253 of the Philippines Commission,
establishing a Bureau of non-Christian Tribes and in Act No. 2674 of the Philippine
Legislature, carried forward into sections 701-705 of the Administrative Code of
1917, reestablishing this Bureau. Among other laws which contain the phrase, there
can be mentioned Acts Nos. 127, 128, 387, 547, 548, 549, 550, 1397, 1639, and 2551.
"Non-Christian people," "non-Christian inhabitants," and "non-Christian Filipinos"
have been the favorite nomenclature, in lieu of the unpopular word "tribes," since
the coming into being of a Filipinized legislature. These terms can be found in
sections 2076, 2077, 2390, 2394, Administrative Code of 1916; sections 701-705, 2145,
2422, 2426, Administrative Code of 1917; and in Acts Nos. 2404, 2435, 2444, 2674 of
the Philippine Legislatures, as well as in Act No. 1667 of the Philippine Commission.

The Administrative Code specifically provides that the term "non-Christian" shall
include Mohammedans and pagans. (Sec. 2576, Administrative Code of 1917; sec.
2561, Administrative Code of 1916, taken from Act No. 2408, sec. 3.)

D. MEANING OF TERM "NON-CHRISTIAN."

If we were to follow the literal meaning of the word "non-Christian," it would of

course result in giving to it a religious signification. Obviously, Christian would be
those who profess the Christian religion, and non-Christians, would be those who do
not profess the Christian religion. In partial corroboration of this view, there could
also be cited section 2576 of the last Administrative Code and certain well-known
authorities, as Zuñiga, "Estadismo de las Islas Filipinas," Professor Ferdinand
Blumentritt, "Philippine Tribes and Languages," and Dr. N. M. Saleeby, "The Origin
of Malayan Filipinos." (See Blair & Robertson, "The Philippine Islands," 1493-1898,
vol. III, p. 300, note; Craig-Benitez, "Philippine Progress prior to 1898," vol. I. p. 107.)

Not content with the apparent definition of the word, we shall investigate further to
ascertain what is its true meaning.

In one sense, the word can have a geographical signification. This is plainly to be
seen by the provisions of many laws. Thus, according to the Philippine Bill, the
authority of the Philippine Assembly was recognized in the "territory" of the Islands
not inhabited by Moros or other non-Christian tribes. Again, the Jones Law confers
similar recognition in the authorization of the twelfth senatorial district for the
"territory not now represented in the Philippine Assembly." The Philippines
Legislature has, time and again, adopted acts making certain other acts applicable to
that "part" of the Philippine Islands inhabited by Moros or other non-Christian
tribes.

Section 2145, is found in article XII of the Provincial Law of the Administrative Code.
The first section of this article, preceding section 2145, makes the provisions of the
article applicable only in specially organized provinces. The specially organized
provinces are the Mountain Province, Nueva Vizcaya, Mindoro, Batanes, and
Palawan. These are the provinces to which the Philippine Legislature has never seen
fit to give all the powers of local self-government. They do not, however, exactly
coincide with the portion of the Philippines which is not granted popular
representation. Nevertheless, it is still a geographical description.

It is well-known that within the specially organized provinces, there live persons
some of who are Christians and some of whom are not Christians. In fact, the law
specifically recognizes this. ( Sec. 2422, Administrative Code of 1917, etc.)

If the religious conception is not satisfactory, so against the geographical conception

is likewise inadquate. The reason it that the motive of the law relates not to a
particular people, because of their religion, or to a particular province because of its
location, but the whole intent of the law is predicated n the civilization or lack of
civilization of the inhabitants.

At most, "non-Christian" is an awkward and unsatisfactory word. Apologetic words

usually introduce the term. "The so-called non-Christian" is a favorite expression.
The Secretary of the Interior who for so many years had these people under his
jurisdiction, recognizing the difficulty of selecting an exact designation, speaks of the
"backward Philippine peoples, commonly known as the 'non-Christian tribes."' (See
Hearings before the Committee on the Philippines, United States Senate, Sixty-third
Congress, third session on H.R. 18459, An Act to declare the purpose of the People of
the United States as to the future political status of the Philippine Islands and to
provide a more autonomous government for the Islands, pp. 346, 351; letter of the
Secretary of the Interior of June 30, 1906, circulated by the Executive Secretary.)

The idea that the term "non-Christian" is intended to relate to degree of civilization,
is substantiated by reference to legislative, judicial, and executive authority.

The legislative intent is borne out by Acts Nos. 48, 253, 387, 1667, and 2674, and
sections 701 et seq, and sections 2422 et seq, of the Administrative Code of 1917. For
instance, Act No. 253 charged the Bureau of non-Christian tribes to conduct
"systematic investigations with reference to non-Christian tribes . . . with special
view to determining the most practicable means for bringing about their
advancement in civilization and material property prosperity."

As authority of a judicial nature is the decision of the Supreme Court in the case of
United States vs. Tubban [Kalinga] ([1915], 29, Phil., 434). The question here arose as
to the effect of a tribal marriage in connection with article 423 of the Penal code
concerning the husband who surprises his wife in the act of adultery. In discussing
the point, the court makes use of the following language:

. . . we are not advised of any provision of law which recognizes as legal a

tribal marriage of so-called non-Christians or members of uncivilized tribes,
celebrated within that province without compliance with the requisites
prescribed by General Orders no. 68. . . . We hold also that the fact that the
accused is shown to be a member of an uncivilized tribe, of a low order of
intelligence, uncultured and uneducated, should be taken into consideration as a
second marked extenuating circumstance.

Of much more moment is the uniform construction of execution officials who have
been called upon to interpret and enforce the law. The official who, as a member of
the Philippine Commission, drafted much of the legislation relating to the so-called
Christians and who had these people under his authority, was the former Secretary
of the Interior. Under date of June 30, 1906, this official addressed a letter to all
governor of provinces, organized under the Special Provincial Government Act, a
letter which later received recognition by the Governor-General and was circulated
by the Executive Secretary, reading as follows:

Sir: Within the past few months, the question has arisen as to whether people
who were originally non-Christian but have recently been baptized or who
are children of persons who have been recently baptized are, for the purposes
of Act 1396 and 1397, to be considered Christian or non-Christians.
 It has been extremely difficult, in framing legislation for the tribes in these islands
which are not advanced far in civilization, to hit upon any suitable designation which
will fit all cases. The number of individual tribes is so great that it is almost out of the
question to enumerate all of them in an Act. It was finally decided to adopt the
designation 'non-Christians' as the one most satisfactory, but the real purpose of the
Commission was not so much to legislate for people having any particular religious
belief as for those lacking sufficient advancement so that they could, to their own
advantage, be brought under the Provincial Government Act and the Municipal
Code.

The mere act of baptism does not, of course, in itself change the degree of
civilization to which the person baptized has attained at the time the act of
baptism is performed. For practical purposes, therefore, you will give the
member of so-called "wild tribes" of your province the benefit of the doubt
even though they may recently have embraced Christianity.

The determining factor in deciding whether they are to be allowed to remain

under the jurisdiction of regularly organized municipalities or what form of
government shall be afforded to them should be the degree of civilization to
which they have attained and you are requested to govern yourself
accordingly.

I have discussed this matter with the Honorable, the Governor-General, who
concurs in the opinion above expressed and who will have the necessary
instructions given to the governors of the provinces organized under the
Provincial Government Act. (Internal Revenue Manual, p. 214.)

The present Secretary of the Interior, in a memorandum furnished a member of this

court, has the following to say on the subject:

As far as names are concerned the classification is indeed unfortunate, but

while no other better classification has as yet been made the present
classification should be allowed to stand . . . I believe the term carries the
same meaning as the expressed in the letter of the Secretary of the Interior (of
June 30, 1906, herein quoted). It is indicative of the degree of civilization
rather than of religious denomination, for the hold that it is indicative of
religious denomination will make the law invalid as against that
Constitutional guaranty of religious freedom.

Another official who was concerned with the status of the non-Christians, was the
Collector of Internal Revenue. The question arose for ruling relatives to the cedula
taxation of the Manobos and the Aetas. Thereupon, the view of the Secretary of the
Interior was requested on the point, who, by return indorsement, agreed with the
interpretation of the Collector of Internal Revenue. This Construction of the Collector
of Internal Revenue can be found in circular letter No. 188 of the Bureau of Internal
Revenue, dated June 11, 1907, reading as follows (Internal Revenue Manual, p. 214):

The internal revenue law exempts "members of non-Christian tribes" from the
payment of cedula taxes. The Collector of Internal Revenue has interpreted
this provision of law to mean not that persons who profess some form of
Christian worship are alone subject to the cedula tax, and that all other person
are exempt; he has interpreted it to mean that all persons preserving tribal
 relations with the so-called non-Christian tribes are exempt from the cedula
tax, and that all others, including Jews, Mohammedans, Confucians, Buddists,
etc., are subject to said tax so long as they live in cities or towns, or in the
country in a civilized condition. In other words, it is not so much a matter of a
man's form of religious worship or profession that decides whether or not he
is subject to the cedula tax; it is more dependent on whether he is living in a
civilized manner or is associated with the mountain tribes, either as a member
thereof or as a recruit. So far, this question has not come up as to whether a
Christian, maintaining his religious belief, but throwing his lot and living
with a non-Christian tribe, would or would not be subject to the cedula tax.
On one occasion a prominent Hebrew of Manila claimed to this office that he
was exempt from the cedula tax, inasmuch as he was not a Christian. This
Office, however, continued to collect cedula taxes from all the Jews, East
Indians, Arabs, Chinamen, etc., residing in Manila. Quite a large proportion of
the cedula taxes paid in this city are paid by men belonging to the
nationalities mentioned. Chinamen, Arabs and other s are quite widely
scattered throughout the Islands, and a condition similar to that which exist in
Manila also exists in most of the large provincial towns. Cedula taxes are
therefore being collected by this Office in all parts of these Islands on the
broad ground that civilized people are subject to such taxes, and non-civilized
people preserving their tribal relations are not subject thereto.

(Sgd.) JNO. S. HORD,

Collector of Internal Revenue.

On September 17, 1910, the Collector of Internal Revenue addressed circular letter
No. 327, approved by the Secretary of Finance and Justice, to all provincial
treasurers. This letter in part reads:

In view of the many questions that have been raised by provincial treasurers
regarding cedula taxes due from members of non-Christian tribes when they
come in from the hills for the purposes of settling down and becoming
members of the body politic of the Philippine Islands, the following
clarification of the laws governing such questions and digest of rulings
thereunder is hereby published for the information of all concerned:

Non-Christian inhabitants of the Philippine Islands are so classed, not by

reason of the fact that they do not profess Christianity, but because of their
uncivilized mode of life and low state of development. All inhabitants of the
Philippine Islands classed as members of non-Christian tribes may be divided
into three classes in so far as the cedula tax law is concerned . . .

Whenever any member of an non-Christian tribe leaves his wild and

uncivilized mode of life, severs whatever tribal relations he may have had and
attaches himself civilized community, belonging a member of the body
politic, he thereby makes himself subject to precisely the same law that
governs the other members of that community and from and after the date
when he so attaches himself to the community the same cedula and other
taxes are due from him as from other members thereof. If he comes in after
the expiration of the delinquency period the same rule should apply to him as
to persons arriving from foreign countries or reaching the age of eighteen
 subsequent to the expiration of such period, and a regular class A, D, F, or H
cedula, as the case may be, should be furnished him without penalty and
without requiring him to pay the tax for former years.

In conclusion, it should be borne in mind that the prime factors in

determining whether or not a man is subject to the regular cedula tax is not
the circumstance that he does or does not profess Christianity, nor even his
maintenance of or failure to maintain tribal relations with some of the well
known wild tribes, but his mode of life, degree of advancement in civilization
and connection or lack of connection with some civilized community. For this
reason so called "Remontados" and "Montescos" will be classed by this office
as members of non-Christian tribes in so far as the application of the Internal
Revenue Law is concerned, since, even though they belong to no well
recognized tribe, their mode of life, degree of advancement and so forth are
practically the same as those of the Igorrots and members of other recognized
non-Christina tribes.

Very respectfully,

(Sgd.) ELLIS CROMWELL,

Collector of Internal Revenue,

Approved:
(Sgd.) GREGORIO ARANETA,
Secretary of Finance and Justice.

The two circular above quoted have since been repealed by Bureau of Internal
Revenue Regulations No. 1, promulgated by Venancio Concepcion, Acting Collector
of Internal Revenue, and approved on April 16, 1915, by Honorable Victorino Mapa,
Secretary of Finance and Justice. Section 30 of the regulations is practically a
transcript of Circular Letter No. 327.

The subject has come before the Attorney-General for consideration. The Chief of
Constabulary request the opinion of the Attorney-General as to the status of a non-
Christian who has been baptized by a minister of the Gospel. The precise questions
were these: "Does he remain non-Christian or is he entitled to the privileges of a
Christian? By purchasing intoxicating liquors, does he commit an infraction of the
law and does the person selling same lay himself liable under the provision of Act
No. 1639?" The opinion of Attorney-General Avanceña, after quoting the same
authorities hereinbefore set out, concludes:

In conformity with the above quoted constructions, it is probable that is

probable that the person in question remains a non-Christian, so that, in
purchasing intoxicating liquors both he and the person selling the same make
themselves liable to prosecution under the provisions of Act No. 1639. At
least, I advise you that these should be the constructions place upon the law
until a court shall hold otherwise.

Solicitor-General Paredes in his brief in this case says:

With respect to the meaning which the phrase non-Christian inhabitants has
in the provisions of the Administrative code which we are studying, we
 submit that said phrase does not have its natural meaning which would
include all non-Christian inhabitants of the Islands, whether Filipino or
strangers, civilized or uncivilized, but simply refers to those uncivilized
members of the non-Christian tribes of the Philippines who, living without
home or fixed residence, roam in the mountains, beyond the reach of law and
order . . .

The Philippine Commission in denominating in its laws that portion of the

inhabitants of the Philippines which live in tribes as non-Christian tribes, as
distinguished from the common Filipinos which carry on a social and
civilized life, did not intended to establish a distinction based on the religious
beliefs of the individual, but, without dwelling on the difficulties which later
would be occasioned by the phrase, adopted the expression which the
Spanish legislation employed to designate the uncivilized portion of the
inhabitants of the Philippines.

The phrase 'non-Christian inhabitants' used in the provisions of articles 2077

and 2741 of Act No. 2657 (articles 2145 and 2759) should be understood as
equivalent to members of uncivilized tribes of the Philippines, not only
because this is the evident intention of the law, but because to give it its lateral
meaning would make the law null and unconstitutional as making
distinctions base the religion of the individual.

The Official Census of 1903, in the portion written by no less an authority than De.
David P. Barrows, then "Chief of the Bureau of non-Christian Tribes," divides the
population in the Christian or Civilized Tribes, and non-Christian or Wild Tribes.
(Census of the Philippine Islands [1903], vol. 1, pp. 411 et seq). The present Director
of the Census, Hon. Ignacio Villamor, writes that the classification likely to be used
in the Census now being taken is: "Filipinos and Primitive Filipinos." In a
Pronouncing Gazetteer and Geographical Dictionary of the Philippine Islands,
prepared in the Bureau of Insular Affairs, War Department, a sub-division under the
title non-Christian tribes is, "Physical and Political Characteristics of the non-
Christian Tribes," which sufficiently shows that the terms refers to culture and not to
religion.

In resume, therefore, the Legislature and the Judiciary, inferentially, and different
executive officials, specifically, join in the proposition that the term "non-Christian"
refers, not to religious belief, but, in a way , to geographical area, and, more directly,
to natives of the Philippine Islands of a law grade of civilization, usually living in
tribal relationship apart from settled communities.

E. THE MANGUIANES.

The so-called non-Christians are in various state approaching civilization. The

Philippine Census of 1903 divided them into four classes. Of the third class, are the
Manguianes (or Mangyans) of Mindoro.

Of the derivation of the name "Manguian" Dr. T. H. Pardo de Tavera in his Etimilogia
de los nombres de Rozas de Filipinas, says:

In Tagalog, Bicol, and Visaya, Manguian signifies "savage," "mountainer,"

"pagan," "negro." It may be that the use of this word is applicable to a great
 number of Filipinos, but nevertheless it has been applied only to certain
inhabitants of Mindoro. Even in primitive times without doubt this name was
given to those of that island who bear it to-day, but its employed in three
Filipino languages shows that the radical ngian had in all these languages a
sense to-day forgotten. In Pampango this ending still exists and signifies
"ancient," from which we can deduce that the name was applied to men
considered to be the ancient inhabitants, and that these men were pushed
back into the interior by the modern invaders, in whose language they were
called the "ancients."

The Manguianes are very low in culture. They have considerable Negrito blood and
have not advanced beyond the Negritos in civilization. They are a peaceful, timid,
primitive, semi-nomadic people. They number approximately 15,000. The
manguianes have shown no desire for community life, and, as indicated in the
preamble to Act No. 547, have not progressed sufficiently in civilization to make it
practicable to bring them under any form of municipal government. (See Census of
the Philippine (Islands [1903], vol. I, pp. 22, 23, 460.)

III. COMPARATIVE — THE AMERICAN INDIANS.

Reference was made in the Presidents' instructions to the Commission to the policy
adopted by the United States for the Indian Tribes. The methods followed by the
Government of the Philippines Islands in its dealings with the so-called non-
Christian people is said, on argument, to be practically identical with that followed
by the United States Government in its dealings with the Indian tribes. Valuable
lessons, it is insisted, can be derived by an investigation of the American-Indian
policy.

From the beginning of the United States, and even before, the Indians have been
treated as "in a state of pupilage." The recognized relation between the Government
of the United States and the Indians may be described as that of guardian and ward.
It is for the Congress to determine when and how the guardianship shall be
terminated. The Indians are always subject to the plenary authority of the United
States.

Chief Justice Marshall in his opinion in Worcester vs. Georgia, hereinbefore

mentioned, tells how the Congress passed an Act in 1819 "for promoting those
humane designs of civilizing the neighboring Indians." After quoting the Act, the
opinion goes on — "This act avowedly contemplates the preservation of the Indian
nations as an object sought by the United States, and proposes to effect this object by
civilizing and converting them from hunters into agriculturists."

A leading case which discusses the status of the Indians is that of the United
States vs. Kagama ([1886], 118 U.S., 375). Reference is herein made to the clause of the
United States Constitution which gives Congress "power to regulate commerce with
foreign nations, and among the several States, and with the Indian tribes." The court
then proceeds to indicate a brief history of the position of the Indians in the United
States (a more extended account of which can be found in Marshall's opinion in
Worcester vs. Georgia, supra), as follows:
 The relation of the Indian tribes living within the borders of the United States,
both before and since the Revolution, to the people of the United States, has
always been an anomalous one and of a complex character.

Following the policy of the European Governments in the discovery of

American towards the Indians who were found here, the colonies before the
Revolution and the States and the United States since, have recognized in the
Indians a possessory right to the soil over which they roamed and hunted and
established occasional villages. But they asserted an ultimate title in the land
itself, by which the Indian tribes were forbidden to sell or transfer it to other
nations or peoples without the consent of this paramount authority. When a
tribe wished to dispose of its lands, or any part of it, or the State or the United
States wished to purchase it, a treaty with the tribe was the only mode in
which this could be done. The United States recognized no right in private
persons, or in other nations, to make such a purchase by treaty or otherwise.
With the Indians themselves these relation are equally difficult to define. They
were, and always have been, regarded as having a semi-independent position
when they preserved their tribal relations; not as States, not as nation not a
possessed of the fall attributes of sovereignty, but as a separate people, with
the power of regulating their internal and social relations, and thus far not
brought under the laws of the Union or of the State within whose limits they
resided.

The opinion then continues:

It seems to us that this (effect of the law) is within the competency of

Congress. These Indian tribes are the wards of the nation. The are
communities dependent on the United States. dependent largely for their daily
food. Dependent for their political rights. They owe no allegiance to the
States, and receive from the no protection. Because of the local ill feeling, the
people of the States where they are found are often their deadliest enemies.
From their very weakness and helplessness, so largely due to the course of
dealing of the Federal Government with them and the treaties in which it has
been promised, there arise the duty of protection, and with it the power. This
has always been recognized by the Executive and by Congress, and by this
court, whenever the question has arisen . . . The power of the General
Government over these remnants of race once powerful, now weak and
diminished in numbers, is necessary to their protection, as well as to the
safety of those among whom they dwell. it must exist in that government,
because it never has existed anywhere else, because the theater of its exercise
is within the geographical limits of the United States, because it has never
been denied, and because it alone can enforce its laws on all the tribes.

In the later case of United States vs. Sandoval ([1913], 231 U.S., 28) the question to be
considered was whether the status of the Pueblo Indians and their lands was such
that Congress could prohibit the introduction of intoxicating liquor into those lands
notwithstanding the admission of New Mexico to statehood. The court looked to the
reports of the different superintendent charged with guarding their interests and
founds that these Indians are dependent upon the fostering care and protection of
the government "like reservation Indians in general." Continuing, the court said "that
during the Spanish dominion, the Indians of the pueblos were treated as wards
requiring special protection, where subjected to restraints and official supervisions
in the alienation of their property." And finally, we not the following: "Not only does
the Constitution expressly authorize Congress to regulate commerce with the
Indians tribes, but long-continued legislative and executive usage and an unbroken
current of judicial decisions have attributed to the United States as a superior and
civilized nation the power and the duty of exercising a fostering care and protection
over all dependent Indian communities within its borders, whether within its
original territory or territory subsequently acquired, and whether within or without
the limits of a state."

With reference to laws affecting the Indians, it has been held that it is not within the
power of the courts to overrule the judgment of Congress. For very good reason, the
subject has always been deemed political in nature, not subject to the jurisdiction of
the judicial department of the government. (Matter of Heff [1905], 197 U.S., 488;
U.S. vs. Celestine [1909], 215 U.S., 278; U.S. vs. Sandoval, supra;
Worcester vs. Georgia, supra; U.S. vs. Rogers [1846], 4 How., 567; the Cherokee
Tobacco [1871], 11 Wall, 616; Roff vs. Burney [1897], 168 U.S., 218; Thomas vs.Gay
[1898], 169 U.S.., 264; Lone Wolf vs. Hitchcock[1903], 187 U.S., 553;
Wallace vs. Adams [1907], 204 U.S., 415; Conley vs. Bollinger [1910], 216 U.S., 84;
Tiger vs. Western Invest. Co. [1911], 221 U.S., 286; U.S. vs. Lane [1913], 232 U.S.., 598;
Cyr vs. Walker (1911], 29 Okla, 281; 35 L.R.A. [N. S.], 795.) Whenever, therefore, the
United States sets apart any public land as an Indian reservation, it has full authority
to pass such laws and authorize such measures as may be necessary to give to the
Indians thereon full protection in their persons and property. (U.S. vs.Thomas [1894],
151 U.S., 577.)

All this borne out by long-continued legislative and executive usage, and an
unbroken line of judicial decisions.

The only case which is even remotely in point and which, if followed literally, might
result in the issuance of habeas corpus, is that of United States vs. Crook ([1879], Fed.
Cas. No. 14891). This was a hearing upon return to a writ of habeas corpus issued
against Brigadier General George Crook at the relation of Standing Bear and other
Indians, formerly belonging to the Ponca Tribe of Indians. The petition alleged in
substance that the relators are Indians who have formerly belonged to the Ponca
tribe of Indians, now located in the Indian Territory; that they had some time
previously withdrawn from the tribe, and completely severed their tribal relations
therewith, and had adopted the general habits of the whites, and were then
endeavoring to maintain themselves by their own exertions, and without aid or
assistance from the general government; that whilst they were thus engaged, and
without being guilty of violating any of the laws of the United States, they were
arrested and restrained of their liberty by order of the respondent, George Crook.
The substance of the return to the writ was that the relators are individual members
of, and connected with, the Ponca tribe of Indians; that they had fled or escaped
form a reservation situated some place within the limits of the Indian Territory —
had departed therefrom without permission from the Government; and, at the
request of the Secretary of the Interior, the General of the Army had issued an order
which required the respondent to arrest and return the relators to their tribe in the
Indian Territory, and that, pursuant to the said order, he had caused the relators to
be arrested on the Omaha Indian Territory.
The first question was whether an Indian can test the validity of an illegal
imprisonment by habeas corpus. The second question, of much greater importance,
related to the right of the Government to arrest and hold the relators for a time, for
the purpose of being returned to the Indian Territory from which it was alleged the
Indian escaped. In discussing this question, the court reviewed the policy the
Government had adopted in its dealing with the friendly tribe of Poncase. Then,
continuing, the court said: "Laws passed for the government of the Indian country,
and for the purpose of regulating trade and intercourse with the Indian tribes, confer
upon certain officers of the Government almost unlimited power over the persons
who go upon the reservations without lawful authority . . . Whether such an
extensive discretionary power is wisely vested in the commissioner of Indian affairs
or not , need not be questioned. It is enough to know that the power rightfully exists,
and, where existing, the exercise of the power must be upheld." The decision
concluded as follows:

The reasoning advanced in support of my views, leads me to conclude:

1. that an Indian is a 'person' within the meaning of the laws of the United
States, and has, therefore, the right to sue out a writ of habeas corpus in a
federal court, or before a federal judge, in all cases where he may be confined
or in custody under color of authority of the United States or where he is
restrained of liberty in violation of the constitution or laws of the United
States.

2. That General George Crook, the respondent, being commander of the

military department of the Platte, has the custody of the relators, under color
of authority of the United States, and in violation of the laws therefore.

3. That n rightful authority exists for removing by force any of the relators to
the Indian Territory, as the respondent has been directed to do.

4. that the Indians possess the inherent right of expatriation, as well as the
more fortunate white race, and have the inalienable right to "life, liberty, and
the pursuit of happiness," so long as they obey the laws and do not trespass
on forbidden ground. And,

5. Being restrained of liberty under color of authority of the United States, and
in violation of the laws thereof, the relators must be discharged from custody,
and it is so ordered.

As far as the first point is concerned, the decision just quoted could be used as
authority to determine that Rubi, the Manguian petitioner, a Filipino, and a citizen of
the Philippine Islands, is a "person" within the meaning of the Habeas Corpus Act,
and as such, entitled to sue out a writ in the Philippine courts. (See also In re Race
Horse [1895], 70 Fed., 598.) We so decide.

As to the second point the facts in the Standing Bear case an the Rubi case are not
exactly identical. But even admitting similarity of facts, yet it is known to all that
Indian reservations do exist in the United States, that Indians have been taken from
different parts of the country and placed on these reservation, without any previous
consultation as to their own wishes, and that, when once so located, they have been
made to remain on the reservation for their own good and for the general good of
the country. If any lesson can be drawn form the Indian policy of the United States, it
is that the determination of this policy is for the legislative and executive branches of
the government and that when once so decided upon, the courts should not interfere
to upset a carefully planned governmental system. Perhaps, just as may forceful
reasons exists for the segregation as existed for the segregation of the different
Indian tribes in the United States.

IV. CONSTITUTIONAL QUESTIONS.

A. DELEGATION OF LEGISLATIVE POWER.

The first constitutional objection which confronts us is that the Legislature could not
delegate this power to provincial authorities. In so attempting, it is contended, the
Philippine Legislature has abdicated its authority and avoided its full responsibility.

That the maxim of Constitutional Law forbidding the delegation of legislative power
should be zealously protected, we agree. An understanding of the rule will,
however, disclose that it has not bee violated in his instance.

The rule has nowhere been better stated than in the early Ohio case decided by
Judge Ranney, and since followed in a multitude of case, namely: "The true
distinction therefore is between the delegation of power to make the law, which
necessarily involves a discretion as to what it shall be, and conferring an authority or
discretion as to its execution, to be exercised under and in pursuance of the law. The
first cannot be done; to the later no valid objection can be made." (Cincinnati, W. &
Z. R. Co. vs. Comm'rs. Clinton County [1852], 1 Ohio S.t, 88.) Discretion, as held by
Chief Justice Marshall in Wayman vs. Southard ([1825], 10 Wheat., 1) may be
committed by the Legislature to an executive department or official. The Legislature
may make decisions of executive departments of subordinate official thereof, to
whom t has committed the execution of certain acts, final on questions of fact.
(U.S. vs. Kinkead [1918], 248 Fed., 141.) The growing tendency in the decision is to
give prominence to the "necessity" of the case.

Is not all this exactly what the Legislature has attempted to accomplish by the
enactment of section 21454 of the Administrative Code? Has not the Legislature
merely conferred upon the provincial governor, with the approval of the provincial
board and the Department Head, discretionary authority as to the execution of the
law? Is not this "necessary"?

The case of West vs. Hitchock, ([1906], 205 U.S., 80) was a petition for mandamus to
require the Secretary of the Interior to approve the selection and taking of one
hundred and sixty acres by the relator out of the lands ceded to the United States by
the Wichita and affiliated bands of Indians. Section 463 of the United States Revised
Statutes provided: "The Commissioner of Indian Affairs shall, under the direction of
the Secretary of the Interior, and agreeably to such regulations as the President may
prescribe, have the management of all Indian affairs, and of all matters arising out to
the Indian relations." Justice Holmes said: "We should hesitate a good deal,
especially in view of the long established practice of the Department, before saying
that this language was not broad enough to warrant a regulation obviously made for
the welfare of the rather helpless people concerned. The power of Congress is not
doubted. The Indians have been treated as wards of the nation. Some such
supervision was necessary, and has been exercised. In the absence of special
provisions naturally it would be exercised by the Indian Department." (See also as
corroborative authority, it any is needed, Union Bridge Co. vs. U.S. [1907], 204 U.S..,
364, reviewing the previous decisions of the United States Supreme Court:
U.S. vs. Lane [1914], 232 U.S., 598.)

There is another aspect of the question, which once accepted, is decisive. An

exception to the general rule. sanctioned by immemorial practice, permits the central
legislative body to delegate legislative powers to local authorities. The Philippine
Legislature has here conferred authority upon the Province of Mindoro, to be
exercised by the provincial governor and the provincial board.

Who but the provincial governor and the provincial board, as the official
representatives of the province, are better qualified to judge "when such as course is
deemed necessary in the interest of law and order?" As officials charged with the
administration of the province and the protection of its inhabitants, who but they are
better fitted to select sites which have the conditions most favorable for improving
the people who have the misfortune of being in a backward state?

Section 2145 of the Administrative Code of 1917 is not an unlawful delegation of

legislative power by the Philippine Legislature to provincial official and a
department head.

B. RELIGIOUS DISCRIMINATION

The attorney de officio, for petitioners, in a truly remarkable brief, submitted on

behalf of his unknown clients, says that — "The statute is perfectly clear and
unambiguous. In limpid English, and in words as plain and unequivocal as language
can express, it provides for the segregation of 'non-Christians' and none other." The
inevitable result, them, is that the law "constitutes an attempt by the Legislature to
discriminate between individuals because of their religious beliefs, and is,
consequently, unconstitutional."

Counsel's premise once being conceded, his arguments is answerable — the

Legislature must be understood to mean what it has plainly expressed; judicial
construction is then excluded; religious equality is demanded by the Organic Law;
the statute has violated this constitutional guaranty, and Q. E. D. is invalid. But, as
hereinbefore stated, we do not feel free to discard the long continued meaning given
to a common expression, especially as classification of inhabitants according to
religious belief leads the court to what it should avoid, the nullification of legislative
action. We hold that the term "non-Christian" refers to natives of the Philippines
Islands of a low grade of civilization, and that section 2145 of the Administrative
Code of 1917, does not discriminate between individuals an account of religious
differences.

C. LIBERTY; DUE PROCESS OF LAW; EQUAL PROTECTION OF THE LAWS.

The third constitutional argument is grounded on those portions of the President's

instructions of to the Commission, the Philippine Bill, and the Jones Law, providing
"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." This constitutional limitation is derived from the
Fourteenth Amendment to the United States Constitution — and these provisions, it
has been said "are universal in their application, to all persons within the territorial
jurisdiction, without regard to any differences of race, of color, or of nationality."
(Yick Wo vs. Hopkins [1886], 118 U.S., 356.) The protection afforded the individual is
then as much for the non-Christian as for the Christian.

The conception of civil liberty has been variously expressed thus:

Every man may claim the fullest liberty to exercise his faculties, compatible
with the possession of like liberty by every other. (Spencer, Social Statistics, p.
94.)

Liberty is the creature of law, essentially different from that authorized

licentiousness that trespasses on right. That authorized licentiousness that
trespasses on right. It is a legal and a refined idea, the offspring of high civilization,
which the savage never understood, and never can understand. Liberty exists
in proportion to wholesome restraint; the more restraint on others to keep off
from us, the more liberty we have . . . that man is free who is protected from
injury. (II Webster's Works, p. 393.)

Liberty consists in the ability to do what one caught to desire and in not being
forced to do what one ought not do desire. (Montesque, spirit of the Laws.)

Even liberty itself, the greatest of all rights, is no unrestricted license to ac

according to one's own will. It is only freedom from restraint under
conditions essential to the equal enjoyment of the same right by others. (Field,
J., in Crowley vs. Christensen [1890], 137 U.S., 86.)

Liberty does not import "an absolute right in each person to be, at all times
and in all circumstances, wholly freed from restraint. There are manifold
restraints to which every person is necessarily subject for the common good.
On any other basis, organized society could not exist with safety to its
members. Society based on the rule that each one is a law unto himself would
soon be confronted with disorder and anarchy. Real liberty for all could not
exist under the operation of a principle which recognizes the right of each
individual person to use his own, whether in respect of his person or his
property, regardless of the injury that may be done to others . . . There is, of
course, a sphere with which the individual may asserts the supremacy of his
own will, and rightfully dispute the authority of any human government —
especially of any free government existing under a written Constitution — to
interfere with the exercise of that will. But it is equally true that in very well-
ordered society charged with the duty of conserving the safety of its
members, the rights of the individual in respect of his liberty may at times,
under the pressure of great dangers, be subjected to such restraint to be
enforced by reasonable regulations, as the safety of the general public may
demand." (Harlan, J., In Jacobson vs. Massachusetts [1905] 197 U.S., 11.)

Liberty is freedom to do right and never wrong; it is ever guided by reason

and the upright and honorable conscience of the individual. (Apolinario
Mabini.)

Civil Liberty may be said to mean that measure of freedom which may be enjoyed in
a civilized community, consistently with the peaceful enjoyment of like freedom in
others. The right to Liberty guaranteed by the Constitution includes the right to exist
and the right to be free from arbitrary personal restraint or servitude. The term
cannot be dwarfed into mere freedom from physical restraint of the person of the
citizen, but is deemed to embrace the right of man to enjoy the faculties with which
he has been endowed by this Creator, subject only to such restraints as are necessary
for the common welfare. As enunciated in a long array of authorities including
epoch-making decisions of the United States Supreme Court, Liberty includes the
right of the citizens to be free to use his faculties in all lawful ways; to live an work
where he will; to earn his livelihood by an lawful calling; to pursue any avocations,
an for that purpose. to enter into all contracts which may be proper, necessary, and
essential to his carrying out these purposes to a successful conclusion. The chief
elements of the guaranty are the right to contract, the right to choose one's
employment, the right to labor, and the right of locomotion.

In general, it may be said that Liberty means the opportunity to do those things
which are ordinarily done by free men. (There can be noted Cummings vs. Missouri
[1866], 4 Wall, 277; Wilkinson vs. Leland [1829], 2 Pet., 627; Williams vs. Fears [1900],
179 U.S., 274; Allgeyer vs. Louisiana [1896], 165, U.S., 578; State vs. Kreutzberg [1902],
114 Wis., 530. See 6 R.C.L., 258, 261.)

One thought which runs through all these different conceptions of Liberty is plainly
apparent. It is this: "Liberty" as understood in democracies, is not license; it is
"Liberty regulated by law." Implied in the term is restraint by law for the good of the
individual and for the greater good of the peace and order of society and the general
well-being. No man can do exactly as he pleases. Every man must renounce
unbridled license. The right of the individual is necessarily subject to reasonable
restraint by general law for the common good. Whenever and wherever the natural
rights of citizen would, if exercises without restraint, deprive other citizens of rights
which are also and equally natural, such assumed rights must yield to the regulation
of law. The Liberty of the citizens may be restrained in the interest of the public
health, or of the public order and safety, or otherwise within the proper scope of the
police power. (See Hall vs. Geiger-Jones [1916], 242 U.S., 539; Hardie-Tynes
Manufacturing Co. vs. Cruz [1914], 189 Al., 66.)

None of the rights of the citizen can be taken away except by due process of law.
Daniel Webster, in the course of the argument in the Dartmouth College Case before
the United States Supreme Court, since a classic in forensic literature, said that the
meaning of "due process of law" is, that "every citizen shall hold his life, liberty,
property, an immunities under the protection of the general rules which govern
society." To constitute "due process of law," as has been often held, a judicial
proceeding is not always necessary. In some instances, even a hearing and notice are
not requisite a rule which is especially true where much must be left to the discretion
of the administrative officers in applying a law to particular cases. (See McGehee,
Due Process of Law, p. 371.) Neither is due process a stationary and blind sentinel of
liberty. "Any legal proceeding enforced by public authority, whether sanctioned by
age and customs, or newly devised in the discretion of the legislative power, in
furtherance of the public good, which regards and preserves these principles of
liberty and justice, must be held to be due process of law." (Hurtado vs.California
[1883], 110, U.S., 516.) "Due process of law" means simply . . . "first, that there shall
be a law prescribed in harmony with the general powers of the legislative
department of the Government; second, that this law shall be reasonable in its
operation; third, that it shall be enforced according to the regular methods of
procedure prescribed; and fourth, that it shall be applicable alike to all the citizens of
the state or to all of a class." (U.S. vs. Ling Su Fan [1908], 10 Phil., 104, affirmed on
appeal to the United States Supreme Court. 1) "What is due process of law depends
on circumstances. It varies with the subject-matter and necessities of the situation."
(Moyer vs. Peablody [1909], 212 U. S., 82.)

The pledge that no person shall be denied the equal protection of the laws is not
infringed by a statute which is applicable to all of a class. The classification must
have a reasonable basis and cannot be purely arbitrary in nature.

We break off with the foregoing statement, leaving the logical deductions to be made
later on.

D. SLAVERY AND INVOLUNTARY SERVITUDE.

The fourth constitutional contention of petitioner relates to the Thirteen Amendment

to the United States Constitution particularly as found in those portions of
Philippine Organic Law providing "That slavery shall not exist in said Islands; nor
shall involuntary servitude exist except as a punishment for crime whereof the party
shall have been duly convicted." It is quite possible that the Thirteenth Amendment,
since reaching to "any place subject to" the "jurisdiction" of the United States, has
force in the Philippine. However this may be, the Philippine Legislature has, by
adoption, with necessary modifications, of sections 268 to 271 inclusive of the United
States Criminal Code, prescribed the punishment for these crimes. Slavery and
involuntary servitude, together wit their corollary, peonage, all denote "a condition
of enforced, compulsory service of one to another." (Hodges vs. U.S. [1906], 203 U.S.,
1.) The term of broadest scope is possibly involuntary servitude. It has been applied
to any servitude in fact involuntary, no matter under what form such servitude may
have been disguised. (Bailey vs. Alabama [1910], 219 U.S., 219.)

So much for an analysis of those constitutional provisions on which petitioners rely

for their freedom. Next must come a description of the police power under which the
State must act if section 2145 is to be held valid.

E. THE POLICE POWER.

Not attempting to phrase a definition of police power, all that it is necessary to note
at this moment is the farreaching scope of the power, that it has become almost
possible to limit its weep, and that among its purposes is the power to prescribe
regulations to promote the health, peace, morals, education, and good order of the
people, and to legislate so as to increase the industries of the State, develop its
resources and add to is wealth and prosperity. (See Barbier vs. Connolly [1884], 113
U.S., 27.) What we are not interested in is the right of the government to restrain
liberty by the exercise of the police power.

"The police power of the State," one court has said, . . . "is a power coextensive with
self-protection, and is not inaptly termed the 'law of overruling necessity.' It may be
said to be that inherent and plenary power in the State which enables it to prohibit
all things hurtful to the comfort, safety and welfare of society." (Lake View vs. Rose
Hill Cemetery Co. [1873], 70 Ill., 191.) Carried onward by the current of legislation,
the judiciary rarely attempt to dam the on rushing power of legislative discretion,
provided the purposes of the law do not go beyond the great principles that mean
security for the public welfare or do not arbitrarily interfere with the right of the
individual.

The Government of the Philippine Islands has both on reason and authority the right
to exercise the sovereign police power in the promotion of the general welfare and
the public interest. "There can be not doubt that the exercise of the police power of
the Philippine Government belongs to the Legislature and that this power is limited
only by the Acts of Congress and those fundamental principles which lie at the
foundation of all republican forms of government." (Churchill and Tait vs. Rafferty
[1915], 32 Phil., 580; U.S. vs. Pompeya [1915], 31 Phil., 245.)

With the foregoing approximation of the applicable basic principles before us, before
finally deciding whether any constitutional provision has indeed been violated by
section 2145 of the Administrative Code, we should endeavor to ascertain the
intention of the Legislature in enacting this section. If legally possible, such
legislative intention should be effectuated.

F. LEGISLATIVE INTENT.

The preamble of the resolution of the provincial board of Mindoro which set apart
the Tigbao reservation, it will be remembered, assigned as reasons fort the action,
the following: (1) The failure of former attempts for the advancement of the non-
Christian people of the province; and (2) the only successfully method for educating
the Manguianes was to oblige them to live in a permanent settlement. The Solicitor-
General adds the following; (3) The protection of the Manguianes; (4) the protection
of the public forests in which they roam; (5) the necessity of introducing civilized
customs among the Manguianes.

The present Secretary of the Interior says of the Tigbao reservation and of the
motives for its selection, the following:

To inform himself of the conditions of those Manguianes who were taken

together to Tigbao, the Secretary of the Interior on June 10 to 13, 1918, made a
trip to the place. There he found that the site selected is a good one; that
creditable progress has been made in the clearing of forests, construction of
buildings, etc., that there appears to be encouraging reaction by the boys to
the work of the school the requirements of which they appear to meet with
enthusiastic interest after the first weeks which are necessarily a somewhat
trying period for children wholly unaccustomed to orderly behaviour and
habit of life. He also gathered the impression that the results obtained during
the period of less than one year since the beginning of the institution
definitely justify its continuance and development.

Of course, there were many who were protesting against that segregation.
Such was naturally to be expected. But the Secretary of the Interior, upon his
return to Manila, made the following statement to the press:

"It is not deemed wise to abandon the present policy over those who
prefer to live a nomadic life and evade the influence of civilization. The
Government will follow its policy to organize them into political
communities and to educate their children with the object of making
 them useful citizens of this country. To permit them to live a wayfaring
life will ultimately result in a burden to the state and on account of
their ignorance, they will commit crimes and make depredation, or if
not they will be subject to involuntary servitude by those who may
want to abuse them."

The Secretary of the Interior, who is the official charged with the supervision of all
the non-Christian people, has adopted as the polaris of his administration — "the
advancement of the non-Christian elements of our population to equality and
unification with the highly civilized Christian inhabitants." This is carried on by the
adoption of the following measures:

(a) Pursuance of the closer settlement policy whereby people of seminomadic

race are induced to leave their wild habitat and settle in organized
communities.

(b) The extension of the public school system and the system of public health
throughout the regions inhabited by the non-Christian people.

(c) The extention of public works throughout the Mohammedan regions to

facilitate their development and the extention of government control.

(d) Construction of roads and trials between one place and another among
non-Christians, to promote social and commercial intercourse and maintain
amicable relations among them and with the Christian people.

(e) Pursuance of the development of natural economic resources, especially

agriculture.

( f ) The encouragement of immigration into, and of the investment of private

capital in, the fertile regions of Mindanao and Sulu.

The Secretary adds:

To attain the end desired, work of a civilizing influence have been continued
among the non-Christian people. These people are being taught and guided to
improve their living conditions in order that they may fully appreciate the
benefits of civilization. Those of them who are still given to nomadic habits
are being persuaded to abandon their wild habitat and settle in organized
settlements. They are being made to understand that it is the purpose of the
Government to organize them politically into fixed and per manent
communities, thus bringing them under the control of the Government, to aid
them to live and work, protect them from involuntary servitude and abuse,
educate their children, and show them the advantages of leading a civilized
life with their civilized brothers. In short, they are being impressed with the
purposes and objectives of the Government of leading them to economic,
social, and political equality, and unification with the more highly civilized
inhabitants of the country. (See Report of the Department for 1917.)

The fundamental objective of governmental policy is to establish friendly relations

with the so-called non-Christians, and to promote their educational, agricultural,
industrial, and economic development and advancement in civilization. (Note Acts
Nos. 2208, 2404, 2444.) Act No. 2674 in reestablishing the Bureau of non-Christian
Tribes, defines the aim of the Government towards the non-Christian people in the
following unequivocal terms:

It shall be the duty of the Bureau of non-Christian Tribes to continue the work
for advancement and liberty in favor of the region inhabited by non-Christian
Filipinos and foster by all adequate means and in a systematical, rapid, and
complete manner the moral, material, economic, social, and political
development of those regions, always having in view the aim of rendering
permanent the mutual intelligence between, and complete fusion of, all the
Christian and non-Christian elements populating the provinces of the
Archipelago. (Sec. 3.)

May the Manguianes not be considered, as are the Indians in the United States,
proper wards of the Filipino people? By the fostering care of a wise Government,
may not these unfortunates advance in the "habits and arts of civilization?" Would it
be advisable for the courts to intrude upon a plan, carefully formulated, and
apparently working out for the ultimate good of these people?

In so far as the Manguianes themselves are concerned, the purpose of the

Government is evident. Here, we have on the Island of Mindoro, the Manguianes,
leading a nomadic life, making depredations on their more fortunate neighbors,
uneducated in the ways of civilization, and doing nothing for the advancement of
the Philippine Islands. What the Government wished to do by bringing than into a
reservation was to gather together the children for educational purposes, and to
improve the health and morals — was in fine, to begin the process of civilization.
this method was termed in Spanish times, "bringing under the bells." The same idea
adapted to the existing situation, has been followed with reference to the
Manguianes and other peoples of the same class, because it required, if they are to be
improved, that they be gathered together. On these few reservations there live under
restraint in some cases, and in other instances voluntarily, a few thousands of the
uncivilized people. Segregation really constitutes protection for the manguianes.

Theoretically, one may assert that all men are created free and equal. Practically, we
know that the axiom is not precisely accurate. The Manguianes, for instance, are not
free, as civilized men are free, and they are not the equals of their more fortunate
brothers. True, indeed, they are citizens, with many but not all the rights which
citizenship implies. And true, indeed, they are Filipinos. But just as surely, the
Manguianes are citizens of a low degree of intelligence, and Filipinos who are a drag
upon the progress of the State.

In so far as the relation of the Manguianes to the State is concerned, the purposes of
the Legislature in enacting the law, and of the executive branch in enforcing it, are
again plain. Settlers in Mindoro must have their crops and persons protected from
predatory men, or they will leave the country. It is no argument to say that such
crimes are punished by the Penal Code, because these penalties are imposed after
commission of the offense and not before. If immigrants are to be encouraged to
develop the resources of the great Islands of Mindoro, and its, as yet, unproductive
regions, the Government must be in a position to guarantee peace and order.
Waste lands do not produce wealth. Waste people do not advance the interest of the
State. Illiteracy and thriftlessness are not conducive to homogeneity. The State to
protect itself from destruction must prod on the laggard and the sluggard. The great
law of overwhelming necessity is all convincing.

To quote again from the instructive memorandum of the Secretary of the Interior:

Living a nomadic and a wayfaring life and evading the influence of

civilization, they (the manguianes) are engaged in the works of destruction —
burning and destroying the forests and making illegal caiñgins thereon. Not
bringing any benefit to the State but instead injuring and damaging its
interests, what will ultimately become of these people with the sort of liberty
they wish to preserve and for which they are now fighting in court? They will
ultimately become a heavy burden to the State and on account of their
ignorance they will commit crimes and make depredations, or if not they will
be subjected to involuntary servitude by those who may want to abuse them.

There is no doubt in my mind that this people a right conception of liberty

and does not practice liberty in a rightful way. They understand liberty as the
right to do anything they will — going from one place to another in the
mountains, burning and destroying forests and making illegal caiñgins
thereon.

Not knowing what true liberty is and not practising the same rightfully, how
can they allege that they are being deprived thereof without due process of
law?

xxx xxx xxx

But does the Constitutional guaranty that 'no person shall be deprived of his
liberty without due process of law' apply to a class of persons who do not
have a correct idea of what liberty is and do not practise liberty in a rightful
way?

To say that it does will mean to sanction and defend an erroneous idea of
such class of persons as to what liberty is. It will mean, in the case at bar, that
the Government should not adopt any measures looking to the welfare and
advancement of the class of persons in question. It will mean that this people
should be let along in the mountains and in a permanent state of savagery
without even the remotest hope of coming to understand liberty in its true
and noble sense.

In dealing with the backward population, like the Manguianes, the

Government has been placed in the alternative of either letting them alone or
guiding them in the path of civilization. The latter measure was adopted as
the one more in accord with humanity and with national conscience.

xxx xxx xxx

The national legislation on the subject of non-Christian people has tended

more and more towards the education and civilization of such people and
fitting them to be citizens. The progress of those people under the tutelage of
 the Government is indeed encouraging and the signs of the times point to a
day which is not far distant when they will become useful citizens. In the light
of what has already been accomplished which has been winning the gratitude
of most of the backward people, shall we give up the noble work simply
because a certain element, believing that their personal interests would be
injured by such a measure has come forward and challenged the authority of
the Government to lead this people in the pat of civilization? Shall we, after
expending sweat, treasure, and even blood only to redeem this people from
the claws of ignorance and superstition, now willingly retire because there
has been erroneously invoked in their favor that Constitutional guaranty that
no person shall be deprived of his liberty without due process of law? To
allow them to successfully invoke that Constitutional guaranty at this time
will leave the Government without recourse to pursue the works of civilizing
them and making them useful citizens. They will thus left in a permanent
state of savagery and become a vulnerable point to attack by those who
doubt, nay challenge, the ability of the nation to deal with our backward
brothers.

The manguianes in question have been directed to live together at Tigbao.

There they are being taught and guided to improve their living conditions.
They are being made to understand that they object of the government is to
organize them politically into fixed and permanent communities. They are
being aided to live and work. Their children are being educated in a school
especially established for them. In short, everything is being done from them
in order that their advancement in civilization and material prosperity may be
assured. Certainly their living together in Tigbao does not make them slaves
or put them in a condition compelled to do services for another. They do not
work for anybody but for themselves. There is, therefore, no involuntary
servitude.

But they are compelled to live there and prohibited from emigrating to some
other places under penalty of imprisonment. Attention in this connection is
invited to the fact that this people, living a nomadic and wayfaring life, do not
have permanent individual property. They move from one place to another as
the conditions of living warrants, and the entire space where they are roving
about is the property of the nation, the greater part being lands of public
domain. Wandering from one place to another on the public lands, why can
not the government adopt a measure to concentrate them in a certain fixed
place on the public lands, instead of permitting them to roam all over the
entire territory? This measure is necessary both in the interest of the public as
owner of the lands about which they are roving and for the proper
accomplishment of the purposes and objectives of the government. For as
people accustomed to nomadic habit, they will always long to return to the
mountains and follow a wayfaring life, and unless a penalty is provinced for,
you can not make them live together and the noble intention of the
Government of organizing them politically will come to naught.

G. APPLICATION AND CONCLUSION.

Our exhaustive study should have left us in a position to answer specific objections
and to reach a general conclusion.
In the first place, it is argued that the citizen has the right, generally speaking, to go
where he pleases. Could be not, however, be kept away from certain localities ? To
furnish an example from the Indian legislation. The early Act of Congress of 1802 (2
U.S. Stat. at L., p. 141) Indian reservation. Those citizens certainly did not possess
absolute freedom of locomotion. Again the same law provided for the apprehension
of marauding Indians. Without any doubt, this law and other similar were accepted
and followed time and again without question.

It is said that, if we hold this section to be constitutional, we leave this weak and
defenseless people confined as in a prison at the mercy of unscrupulous official.
What, it is asked, would be the remedy of any oppressed Manguian? The answer
would naturally be that the official into whose hands are given the enforcement of
the law would have little or not motive to oppress these people; on the contrary, the
presumption would all be that they would endeavor to carry out the purposes of the
law intelligently and patriotically. If, indeed, they did ill-treat any person thus
confined, there always exists the power of removal in the hands of superior officers,
and the courts are always open for a redress of grievances. When, however, only the
validity of the law is generally challenged and no particular case of oppression is
called to the attention of the courts, it would seems that the Judiciary should not
unnecessarily hamper the Government in the accomplishment of its laudable
purpose.

The question is above all one of sociology. How far, consistently with freedom, may
the right and liberties of the individual members of society be subordinated to the
will of the Government? It is a question which has assailed the very existence of
government from the beginning of time. Now purely an ethical or philosophical
subject, nor now to be decided by force, it has been transferred to the peaceful forum
of the Judiciary. In resolving such an issue, the Judiciary must realize that the very
existence of government renders imperatives a power to restrain the individual to
some extent, dependent, of course, on the necessities of the class attempted to be
benefited. As to the particular degree to which the Legislature and the Executive can
go in interfering with the rights of the citizen, this is, and for a along time to come
will be, impossible for the courts to determine.

The doctrines of laissez faire and of unrestricted freedom of the individual, as axioms
of economics and political theory, are of the past. The modern period has shown as
widespread belief in the amplest possible demonstration of governmental activity.
The courts unfortunately have sometimes seemed to trial after the other two
branches of the government in this progressive march.

Considered, therefore, purely as an exercise of the police power, the courts cannot
fairly say that the Legislature has exceeded its rightful authority. it is, indeed, an
unusual exercise of that power. But a great malady requires an equally drastic
remedy.

Further, one cannot hold that the liberty of the citizen is unduly interfered without
when the degree of civilization of the Manguianes is considered. They are restrained
for their own good and the general good of the Philippines. Nor can one say that due
process of law has not been followed. To go back to our definition of due process of
law and equal protection of the law, there exists a law ; the law seems to be
reasonable; it is enforced according to the regular methods of procedure prescribed;
and it applies alike to all of a class.

As a point which has been left for the end of this decision and which, in case of
doubt, would lead to the determination that section 2145 is valid. it the attitude
which the courts should assume towards the settled policy of the Government. In a
late decision with which we are in full accord, Gambles vs. Vanderbilt University
(200 Southwestern Reporter, 510) the Chief Justice of the Supreme Court of
Tennessee writes:

We can seen objection to the application of public policy as a ratio decidendi. Every
really new question that comes before the courts is, in the last analysis, determined
on that theory, when not determined by differentiation of the principle of a prior
case or line of cases, or by the aid of analogies furnished by such prior case. In
balancing conflicting solutions, that one is perceived to tip the scales which the court
believes will best promote the public welfare in its probable operation as a general
rule or principle. But public policy is not a thing inflexible. No court is wise enough
to forecast its influence in all possible contingencies. Distinctions must be made from
time to time as sound reason and a true sense of justice may dictate."

Our attempt at giving a brief history of the Philippines with reference to the so-
called non-Christians has been in vain, if we fail to realize that a consistent
governmental policy has been effective in the Philippines from early days to the
present. The idea to unify the people of the Philippines so that they may approach
the highest conception of nationality. If all are to be equal before the law, all must be
approximately equal in intelligence. If the Philippines is to be a rich and powerful
country, Mindoro must be populated, and its fertile regions must be developed. The
public policy of the Government of the Philippine Islands is shaped with a view to
benefit the Filipino people as a whole. The Manguianes, in order to fulfill this
governmental policy, must be confined for a time, as we have said, for their own
good and the good of the country.

Most cautiously should the power of this court to overrule the judgment of the
Philippine Legislature, a coordinate branch, be exercised. The whole tendency of the
best considered case is toward non-interference on the part of the courts whenever
political ideas are the moving consideration. Justice Holmes, in one of the aphorisms
for which he is justly famous, said that "constitutional law, like other mortal
contrivances, has to take some chances." (Blinn vs.Nelson [1911], 222 U.S., 1.) If in the
final decision of the many grave questions which this case presents, the courts must
take "a chance," it should be with a view to upholding the law, with a view to the
effectuation of the general governmental policy, and with a view to the court's
performing its duty in no narrow and bigoted sense, but with that broad conception
which will make the courts as progressive and effective a force as are the other
departments of the Government.

We are of the opinion that action pursuant to section 2145 of the Administrative
Code does not deprive a person of his liberty without due process of law and does
not deny to him the equal protection of the laws, and that confinement in
reservations in accordance with said section does not constitute slavery and
involuntary servitude. We are further of the opinion that section 2145 of the
Administrative Code is a legitimate exertion of the police power, somewhat
analogous to the Indian policy of the United States. Section 2145 of the
Administrative Code of 1917 is constitutional.

Petitioners are not unlawfully imprisoned or restrained of their liberty. Habeas

corpus can, therefore, not issue. This is the true ruling of the court. Costs shall be
taxes against petitioners. So ordered.

Arellano, C.J., Torres and Avanceña, JJ., concur.

Separate Opinions

CARSON, J., concurring:

I fully concur in the reasoning and the conclusions of Justice Malcolm as set forth in
the prevailing, opinion.

The words "non-Christian' have a clear, definite and well settled signification when
used in the Philippine statute-book as a descriptive adjective, applied to "tribes,"
"people," or "inhabitants," dwelling in more or less remote districts and provinces
throughout the Islands.

Justice Malcolm, as I think, correctly finds that these words, as used in this
connection in our statute-book, denote the 'low grace of civilization" of the
individuals included in the class to which they are applied. To this I would add that
the tests for the determination of the fact that an individual or tribes is, or is not of
the "non-Christian" are, and throughout the period of American occupation always
have been, "the mode of life, the degree of advancement in civilization, and
connection or lack of connection with some civilized community." (Cf. letter of
Collector of Internal Revenue dated September 17, 1910, and set out in the principal
opinion.)

The legislative and administrative history of the Philippine Islands clearly discloses
that the standard of civilization to which a specific tribe must be found to have
advanced, to justify its removal from the class embraces with the descriptive term
"non-Christian," as that term is used in the Philippine statute-book, is that degree of
civilization which results in a mode of life within the tribe, such that it is feasible and
practicable to extend to, and enforce upon its membership the general laws and
regulations, administrative, legislative, and judicial, which control the conduct of the
admitted civilized inhabitants of the Islands; a made of life, furthermore, which does
not find expression in tribal customs or practices which tend to brutalize or debauch
the members of the tribe indulging in such customs or practices, or to expose to loss
or peril the lives or property of those who may be brought in contact with members
of the tribe.

So the standard of civilization to which any given number or group of inhabitants of

particular province in these Islands, or any individual member of such a group, must
be found to have advanced, in order to remove such group or individual from the
class embraced within the statutory description of "non-Christian," is that degree of
civilization which would naturally and normally result in the withdrawal by such
persons of permanent allegiance or adherence to a "non-Christian" tribe, had they at
any time adhered to or maintained allegiance to such a tribe; and which would
qualify them whether they reside within or beyond the habitat of a "non-Christian"
tribe, not only to maintain a mode of life independent of a apart from that maintain
by such tribe, but a mode of life as would not be inimical to the lives or property or
general welfare of the civilized inhabitants of the Islands with whom they are
brought in contact.

The contention that, in this particular case, and without challenging the validity of
the statute, the writ should issue because of the failure to give these petitioners, as
well as the rest of the fifteen thousand Manguianes affected by the reconcentration
order, an opportunity to be heard before any attempt was made to enforce it, begs
the question and is, of course, tantamount to a contention that there is no authority
in law for the issuance of such an order.

If the fifteen thousand manguianes affected by the order complained of had attained
that degree of civilization which would have made it practicable to serve notice
upon, and give an opportunity for a real hearing, to all the members of the tribe
affected by the order, it may well be doubted whether the provincial board and the
Secretary of the Interior would have been justified in its enforcement By what
proceeding known to the law, or to be specially adopted in a particular case, could
the offices of any province provide for a genuine hearing upon a proposal to issue a
reconcentration order upon a head-hunting tribe in the north of the Island of Luzon;
or upon one of the nomadic tribes whose habitat is in the mountain fastnesses of
Mindanao, and whose individual members have no fixed or known place of
residence, or upon the fifteen thousand Manguianes roaming in the wilds of
Mindoro.

Of course, friendly headmen or chief might and, as a rule, should be consulted, after
the practice in the United States when tribes or groups of American Indians have
been placed upon reservations; but since non-Christian head men and chiefs in the
Philippines have no lawful authority to bind their acts or their consent, the objection
based on lack of a hearing, would have the same force whether the issuance of a
reconcentration order was or was not preceded by a pow-wow of this kind.

The truth of the mater is that the power to provide for the issuance of such orders
rests upon analogous principles to those upon which the liberty and freedom or
action of children and persons of unsound minds is restrained, without consulting
their wishes, but for their own good and the general welfare. The power rests upon
necessity, that "great master of all things," and is properly exercised only where
certain individuals or groups of individual are found to be of such a low grade of
civilization that their own wishes cannot be permitted to determine their mode of
life or place of residence.

The status of the non-Christian inhabitants of these Islands, and the special and
necessarily paternal attitude assume toward them by the Insular Government is well
illustrated by the following provisions found in the Administrative Code of 1917:

SEC. 705. Special duties and purposes of Bureau (of non-Christian tribes). — It
shall be the duty of the Bureau of non-Christian tribes to continue the work
for advancement and liberty in favor of the regions inhabited by non-
Christian Filipinos and to foster by all adequate means and in a systematic,
rapid, and completely manner the moral, material, economic, social and
political development of those regions, always having in view the aim of
 rendering permanent the mutual intelligence between and complete fusion of
all the Christian and non-Christian elements populating the provinces of the
Archipelago.

SEC. 2116. Township and settlement fund. — There shall be maintained in the
provincial treasuries of the respective specially organized provinces a special
fund to be known as the township and settlement fund, which shall be
available, exclusively, for expenditures for the benefit of the townships and
settlements of the province, and non-Christian inhabitants of the province,
upon approval of the Secretary of the Interior.

As I understand it, the case at bar does not raise any real question as to the
jurisdiction of the courts of these Islands in habeas corpus proceedings, to review the
action of the administrative authorities in the enforcement of reconcentration orders
issued, under authority of section 2145 of the Administrative Code, against a
petitioner challenging the alleged fact that he is a "non-Christian" as that term is
used in the statute. I, therefore, express no opinion on that question at this time.

JOHNSON, J., dissenting:

I dissent. The petitioners were deprived of their liberty without a hearing. That fact
is not denied. I cannot give my consent to any act which deprives the humblest
citizen of his just liberty without a hearing, whether he be a Christian or non-
Christian. All persons in the Philippine Islands are entitled to a hearing, at least,
before they are deprived of their liberty.

MOIR, J., dissenting:

I dissent.

I realize that a dissenting opinion carries little weight, but may sense of justice will
not permit me to let this decision go on record without expressing may strong
dissent from the opinion of Justice Malcolm, concurred in by a majority of the court.
I shall not attempt to analyze the opinion or to go into the question in detail. I shall
simply state, as briefly as may be, the legal and human side of the case as it presents
itself to my mind.

The facts are that one Rubi and various other Manguianes in the Province of
Mindoro were ordered by the Provincial governor of Mindoro to remove their
residence from their native habitat and to establish themselves on a reservation at
Tigbao in the Province of Mindoro and to remain there, or be punished by
imprisonment if they escaped. This reservation, as appears from the resolution of the
provincial board, extends over an area of 800 hectares of land, which is
approximately 2,000 acres, on which about three hundred manguianes are confined.
One of the Manguianes, Dabalos, escaped from the reservation and was taken in
hand by the provincial sheriff and placed in prision at Calapan, solely because he
escaped from the reservation. The Manguianes used out a writ of habeas corpus in this
court, alleging that they are deprived of their liberty in violation of law.

The Solicitor-General of the Philippine Islands makes return to the writ copied in the
majority opinion which states that the provincial governor of Mindoro with the prior
approval of his act by the Department Secretary ordered the placing of the
petitioners and others on a reservation.

The manguianes, it is stated on page 694 of the majority opinion, "are very low in
culture. They have considerable Negrito blood and have not advanced beyond the
Negritos in civilization. They are peaceful, timid, primitive, seminomadic people.
They number approximately 15,000 (?). The manguianes have shown no desire for
community life, and, as indicated in the preamble to Act No. 547, have no
progressed sufficiently in civilization to make it practicable to bring them under any
for of municipal government."

It may be well to add that the last P.I. Census (1903) shows that the Island of
Mindoro (not including smaller islands which together make the Province of
Mindoro) has an area of 3,851 square miles and a populations of 28, 361 of which 7,
369 are wild or uncivilized tribes (Manguianes). This appears to be the
total Mangyan population of the province. The total population was less than seven
to the mile (Vol. 2, P.I. Census, pp. 30 and 407).

The Island is fertile, heavily wooded and well watered.

It has no savage population, but it is sparsely settled by Christian Filipinos along the
coast and by Manguianes.

The Manguianes roamed its mountains and valleys, fishing and hunting at will long
before Magallanes [Magellan] anchored his boats in the water of Cebu. They have
made little or no progress in the ways of civilization. "They are a peaceful, timid,
primitive, seminomadic people," whom the Government of the Philippines Islands
would bring under the beneficient influence of civilization and progress.

The law provides for it in section 2145 of the Administrative Code, and for those
who like Dadalos do not take kindly to the ways provided for civilizing them section
2759 provides the punishment.

The attorney for the petitioners has raised various constitutional questions, but only
the fundamental one will be considered by me. It is that the sections of the
Administrative Code, 2145 and 2759, quoted in the majority opinion, are in violation
of the first paragraph of section 3 of the Act of Congress of August 29, 1916, which
reads as follows:

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.

It is not necessary to argue that a Mangyan is one of the persons protected by that
provision.

The Attorney-General argues that the treatment provided for the Manguianes is
similar to that accorded the Indians in the United States, and reference is made all
through the court's decision to the decisions of the United States Supreme Court
with reference to the Indians. It is not considered necessary to go into these cases for
the simple reason that all the Indians nations in the United States were considered
as separate nations and all acts taken in regard to them were the result of separate
treaties made by the United States Government with the Indian nations, and,
incompliance with these treaties, reservations were set apart for them on which they
lived and were protected form intrusion and molestation by white men. Some these
reservations were larger than the Islands of Luzon, and they were not measured in
hectares but in thousands of square miles.

The Manguianes are not a separate state. They have no treaty with the Government
of the Philippine Islands by which they have agreed to live within a certain district
where they are accorded exclusive rights. They are citizens of the Philippine Islands.
Legally they are Filipinos. They are entitled to all the rights and privileges of any
other citizen of this country. And when the provincial governor of the Province of
Mindoro attempted to take them from their native habitat and to hold them on the
little reservation of about 800 hectares, he deprived them of their rights and their
liberty without due process of law, and they were denied the equal protection of the
law.

The majority opinion says "they are restrained for their own good and the general
good of the Philippines."

They are to be made to accept the civilization of the more advanced Filipinos
whether they want it or not. They are backward and deficient in culture and must be
moved from their homes, however humble they may be and "bought under the bells"
and made to stay on a reservation.

Are these petitioners charged with any crime? There is no mention in the return of
the Solicitor-General of the Philippine Islands of any crime having been committed
by these "peacefully, timid, primitive, semi-nomadic people."

A memorandum of the Secretary of the Interior of the Philippine Islands is copied

in extenso in the majority opinion, and from it I gather the nature of their offense
which is that —

Living a nomadic and wayfaring life and evading the influence of civilization,
they (the manguianes) are engaged in the works of destruction — burning
and destroying the forests and making illegal caiñgins thereon. No bringing
any benefit to the State but, instead, injuring and damaging its interests, what
will ultimately become of those people with the sort of liberty they wish to
preserve and for which they are not fighting in court? They will ultimately
become a heavy burden to the State and, on account of their ignorance, they
will commit crimes and make depredations, or if not they will be subjected to
involuntary servitude by those who may want to abuse them.

There is no doubt in my mind that this people has not a right conception of
liberty and does not practice liberty in a rightful way. They understand liberty
as the right to do anything they will — going from one place to another in the
mountains, burning and destroying forests and making
illegal caiñgins thereon.

Not knowing what true liberty is and not practising the same rightfully, how
can they are being deprived thereof without due process of law?

xxx xxx xxx

 But does the constitutional guaranty that "no person shall be deprived of his
liberty without due process of law" apply to a class of persons who do not
have a correct idea of what liberty is and do not practise liberty in a rightful
way?

To say that it does will mean to sanction and defend an erroneous idea of
such class of persons as to what liberty is. It will mean, in the case at bar, that
the Government should not adopt any measures looking to the welfare and
advancement of the class of persons in question. It will mean that this people
be let alone in the mountains and in a permanent state of savagery without
even the remotest hope of coming to understand liberty in its true and noble
sense.

In dealing with the backward population, like the Manguianes, the

Government has been placed in the alternative of either letting them alone or
guiding them in the path of civilization. The latter measure was adopted as
the one more in accord with humanity and with national conscience.

xxx xxx xxx

The national legislation on the subject of non-Christian people has tended

more and more towards the education and civilization of such people and
fitting them to be citizens.

There appear to be two intimations or charges in this memorandum; one is that the
Manguianes destroy the forest by making a caiñgin. What is a "caiñgin?" Simply this.
These people move their camp or place of abode frequently and when they do move
to a new place, it is necessary to clear the land in order to plant corn and camotes
(sweet potatoes) and they cut down the smaller trees and burn these around the
larger ones, killing them, so that they can plant their crops. The fires never spread in
the tropical undergrowth of an island like Mindoro, but the trees within
the caiñgin are killed and crops are planted and harvested. This land may be
abandoned later on — due to superstition, to a lack of game in the neighborhood, to
poor crops from exhausted fertility, or to a natural desire to move on.

Granting that the Manguianes do make caiñgins or clear lands in spots and then
abandon them for the more fertile lands, which every man knows to be just over the
hills, we cannot see that they are committing such a great abuse as to justify
incarcerating them on a small tract of land — for incarceration it is and nothing less.

The second intimation or charge is that "they will become a heavy burden to the state
and on account of their ignorance they will commit crimes and make depredations,
or if not they will be subjected to involuntary servitude by those who want to abuse them."
They have never been a burden to the state and never will be. They have not committed
crimes and, when they do, let the law punish them." The authorities are anticipating too
much from these "peaceful, timid, primitive, semi-nomadic people." Their history
does not demonstrate that we must expect them to commit crimes and jail them to
prevent the possibility. But the Secretary says "they will be subjected to involuntary
servitude by those want to abuse them." Are they more liable to be subjected to
involuntary servitude when left free to roam their native hills and gain a livelihood
as they have been accustomed to for hundreds of years, than they will be if closely
confined on a narrow reservation from which they may not escape without facing a
term in jail? Is not more likely that they will be glad to exchange their "freedom" on a
small reservation for the great boon of binding themselves and their children to the
more fortunate Christian Filipinos who will feed them and clothe them in return of
their services.?

It think it not only probable but almost a certainty that they will be all be subjected
to involuntary personal servitude if their freedom is limited as it has been. How will
they live? There may be persons who are willing to lend them money with which to
buy food on the promise that they will work for them. And if they accept the loan
and do not work for the lender we have another law on the statute books, Act No.
2098, into whose noose they run their necks, and they may be fined not more than
two hundred pesos or imprisonment for not exceeding six months or both, and
when the sentence expires they must again go into debt or starve, and if they do not
work will again go to jail, and this maybe repeated till they are too old to work and
are cast adrift.

The manguianes have committed no offenses and are charged with none. It does not
appear they were ever consulted about their reconcentration. It does not appear that
they had any hearing or were allowed to make any defense. It seems they were
gathered here and there whenever found by the authorities of the law and forcibly
placed upon the reservation, because they are "non-Christian," and because the
provincial governor ordered it. Let it be clear there is no discrimination because
of religion. The term "non-Christian" means one who is not a Christian Filipino, but it
also means any of the so-called "wild" or backward tribes of the Philippines. These
non-Christian tribes are Moros, Igorrotes, Bukidnons, Ifugaos, Manguianes and
various others, about one millions souls all together. Some of them, like the Moros,
Tinguianes and Ifugaos, have made great progress in civilization. The have beautiful
fields reclaimed by hard labor — they have herds of cattle and horses and some few
of them are well educated. Some of the non-Christians, like the Aetas and the
Negritos, are very low in the scale of civilization, but they are one and all "non-
Christians," as the term is used and understood in law and in fact.

All of them, according to the court's opinion under the present law, may be taken
from their homes and herded on a reservation at the instance of the provincial
governor, with the prior approval of the department head. To state such a monstrous
proposition is to show the wickedness and illegality of the section of the law under
which these people are restrained of their liberty. But it is argued that there is no
probability of the department head ever giving his approval to such a crime, but the
fact that he can do it and has done it in the present case in what makes the law
unconstitutional. The arbitrary and unrestricted power to do harm should be the
measure by which a law's legality is tested and not the probability of doing harm.

It has been said that this is a government of laws and not of men; that there is
no arbitrary body of individuals; that the constitutional principles upon
which our government and its institutions rest do not leave room for the play
and action of purely personal and arbitrary power, but that all in authority
are guided and limited by these provisions which the people have, the
through the organic law, declared shall be the measure and scope of all
control exercised over them. In particular the fourteenth amendment, and
especially the equal protection clause, thereof, forbids that the individual shall
be subjected to any arbitrary exercise of the powers of government; it was
 intended to prohibit, and does prohibit, any arbitrary deprivation of life or
liberty, or arbitrary spoliation of property.

As we have seen, a statute which makes a purely arbitrary or unreasonable

classification, or which singles out any particular individuals or class as the
subject of hostile and discriminating legislation, is clearly unconstitutional as
being opposed to the fourteenth amendment and especially to the equal
protection clause thereof. This is a plain case, and requires no further
discussion. (Vol. 4, Encyclopedia of U.S. Supreme Court Reports, p. 366.)

When we consider the nature and the theory of our institutions of

government, the principles upon which they are supposed to rest, and review
the history of their development, we are constrained to conclude that they do
not mean to leave room for the play and action of purely personal and
arbitrary power. Sovereignty itself is, of course, not subject to law, for its is
the author and source of law; but in our system, while sovereign powers are
delegated to the agencies of government, sovereignty itself remains with the
people, by whom and for whom all government exists and acts. And the law
is the definition and limitation of power. It is, indeed, quite true, that there
must always be lodged somewhere, and in some person or body, the
authority of final decision; and, in many cases of mere administration the
responsibility is purely political, no appeal lying except to the ultimate
tribunal of the public judgment, exercised either in the pressure of opinion or
by means of the suffrage. But the fundamental rights to life, liberty, and the
pursuit of happiness, considered as individual possessions, are secured by
those maxims of constitutional law which are the monuments showing the
victorious progress of the race in securing to men the blessings of civilization
under the reign of just and equal laws, so that, in the famous language of
Massachusetts Bill of Rights, the Government of Commonwealth "may be a
government of law and not of men." For the very idea that one man may be
compelled to hold his life, or the means of living, or any material right
essential to the enjoyment of life, at the mere will of another, seems to be
intolerable in any country where freedom prevails, as being the essence of
slavery itself. (Yick Wo vs. Hopkins, 118 U.S., 374.)

It is said that the present law is an old Act being substance Act No. 547 of the
Philippine Commission. But it has never been brought before this court for
determination of its constitutionality. No matter how beneficient the motives of the
lawmakers if the lawmakers if the law tends to deprive any man of life, liberty, or
property without due process law, it is void.

In may opinion the acts complained of which were taken in conformity with section
2145 of the Administrative Code not only deprive these Manguianes of their liberty,
without due process of law, but will in all probability deprive them of their life,
without due process of law. History teaches that to take a semi-nomadic tribe from
their native fastnesses and to transfer them to the narrow confines of a reservation is
to invite disease an suffering and death. From my long experience in the Islands, I
should say that it would be a crime of title less magnitude to take the Ifugaos from
their mountain homes where they have reclaimed a wilderness and made it a land of
beauty and fruitfulness and to transfer them to the more fertile, unoccupied, malaria
infested valleys which they look down upon from their fields — than it would be to
order their decapitation en masse.

There can be no denial that the Ifugaos are "non-Christians," or "wild tribes" and are
in exactly the same category as the Manguianes. If the Manguianes may be so taken
from their native habitat and reconcentrated on a reservation — in effect an open air
jail — then so may the Ifugaos, so may the Tinguianes, who have made more
progress than the Ifugaos, and so may the Moros.

There are "non-Christian" in nearly every province in the Philippine Islands. All of
the thirty-nine governors upon the prior approval of the head of the department,
have the power under this law to take the non-Christian inhabitants of their different
provinces form their homes and put them on a reservation for "their own good and
the general good of the Philippines," and the court will grant them no relief. These
unfortunate citizens of the Philippine Islands would hold their liberty, and their
lives, may be, subject to the unregulated discretion of the provincial governor.

And who would be safe?

After the reservation is once established might not a provincial governor decide that
some political enemy was a non-Christian, and that he would be safer on the
reservation. No matter what his education and culture, he could have no trial, he
could make no defense, the judge of the court might be in a distant province and not
within reach, and the provincial governor's fiat is final.

The case of the United States vs. Crook (Federal Cases 14891), cited in the majority
opinion, should be quoted at length. District Judge Dundy said:

During the fifteen years in which I have been engaged in administering the
laws of my country, I have never been called upon to hear or decide a case
that appealed so strongly to my sympathy as the one now under
consideration. On the one side, we have a few of the remnants of a once
numerous and powerful, but now weak, insignificant, unlettered, and
generally despised race; and the other, we have the representative of one of
the most powerful, most enlightened, and most christianized nations of
modern times. On the one side, we have the representatives of this wasted
race coming into this national tribunal of ours, asking for justice and liberty to
enable them to adopt our boasted civilization, and to pursue the arts of peace,
which have made us great and happy as a nation; on the other side, we have
this magnificent, if not magnanimous, government, resisting this application
with the determination of sending these people back to the country which is
to them less desirable perpetual imprisonment in their own native land. But I
think it is creditable to the heart and mind of the brave and distinguished
officer who is made respondent herein to say that he has no sort of sympathy
in the business in which he is forced by his position to bear a part so
conspicuous; and, so far as I am individually concerned, I think it not
improper to say that, if the strongest possible sympathy could give the
relators title to freedom, they would have been restored to liberty the moment
the arguments in their behalf were closed. no examination or further thought
would then have been necessary or expedient. But in a country where liberty
is regulated by law, something more satisfactory and enduring than mere
sympathy must furnish and constitute the rule and basis of judicial action. It
follows that this case must be examined and decided on principles of law, and
that unless the relators are entitled to their discharge under the constitution or
laws of the United States, or some treaty, they must be remanded to the
custody of the officer who caused their arrest, to be returned to the Indian
Territory which they left without the consent of the government.

On the 8th of April, 1879, the relators Standing Bear and twenty-five others,
during the session of the court held at that time of Lincoln, presented their
petition, duly verified, praying for the allowance of a writ of habeas corpus and
their final discharged from custody thereunder.

The petition alleges, in substance, that the relators are Indians who have
formerly belonged to the Ponca tribe of Indians now located in the Indian
Territory; that they had some time previously withdrawn from the tribe, and
completely severed their tribal relations therewith, and had adopted the
general habits of the whites, and were then endeavoring to maintain
themselves by their own exertions, and without aid or assistance from the
general government; that whilst they were thus engaged, and without being
guilty of violating any of the laws of the United States, they were arrested and
restrained of their liberty by order of the respondent, George Crook.

The writ was issued and served on the respondent on the 8th day of April,
and, the distance between the place where the writ was made returnable and
the place where the relators were confined being more than twenty miles, ten
days were alloted in which to make return.

On the 18th of April the writ was returned, and the authority for the arrest
and detention is therein shown. The substance of the return to the writ, and
the additional statement since filed, is that the relators are individual
members of, and connected with, the Ponca Tribe of Indians; that they had
fled or escaped from a reservation situated in some place within the limits of
the indian Territory — had departed therefrom without permission from the
government; and, at the request of the secretary of the interior, the general of
the army had issued an order which required the respondent to arrest and
return the relators to their tribe in the Indian Territory, and that, pursuant to
the said order, he had caused the relators to be arrested on the Omaha Indian
reservation, and that they were in his custody for the purpose of being
returned to the Indian Territory.

It is claimed upon the one side, and denied upon the other, that the relators
had withdrawn and severed, for all time, their connection with the tribe to
which they belonged; and upon this point alone was there any testimony
produced by either party hereto. The other matter stated in the petition and
the return to the writ are conceded to be true; so that the questions to be
determined are purely questions of law.

On the 8th of Mar, 1859, a treaty was made by the United States with the
Ponca tribe of Indians, by which a certain tract of country, north of the
Niobrara river and west of the Missouri, was set apart for the permanent
home of the aid Indians, in which the government agreed to protect them
during their good behaviour. But just when or how, or why, or under what
circumstances, the Indians left their reservation in Dakota and went to the
Indian Territory does not appear.

xxx xxx xxx

A question of much greater importance remains for consideration, which,

when determined, will be decisive of this whole controversy. This relates to
the right of the government to arrest and hold the relators for a time, for the
purpose of being returned to a point in the Indian Territory from which it is
alleged the Indians escaped. I am not vain enough to think that I can do full
justice to a question like the one under consideration. But, as the mater
furnishes so much valuable material for discussion, and so much food for
reflection, I shall try to present it as viewed from my own standpoint, without
reference to consequences or criticisms, which, though not specially invited,
will be sure to follow.

xxx xxx xxx

On the 15th day of August, 1876, congress passed the general Indian
appropriation bill, and in it we find a provision authorizing the secretary of
the interior to use $25,000 for the removal of the Poncas to the Indian
Territory, and providing them a home therein, with consent of the tribe. (19 Sta.,
192.)

xxx xxx xxx

The Poncas lived upon their reservation in southern Dakota, and cultivated a
portion of the same, until two or three years ago, when they removed
therefrom, but whether by force or otherwise does not appear. At all event,
we find a portion of them, including the relators, located at some point in the
Indian Territory. There, the testimony seems to show, is where the trouble
commenced. Standing Bear, the principal witness, states that out of five
hundred and eighty-one Indians who went from the reservation in Dakota to
the Indian Territory, one hundred and fifty-eight died within a year or so, and
a great proportion of the others were sick and disabled, caused, in a great
measure, no doubt, from change of climate; and to save himself and the
survivors of his wasted family, and the feeble remnant of his little band of
followers, he determined to leave the Indian Territory and return to his old
home, where, to use his own language, "he might live and die in peace, and be
buried with his fathers." He also stated that he informed the agent of their
final purpose to leave, never to return, and that he and his followers had
finally, fully, and forever severed his and their connection with the Ponca
tribe of Indians, and had resolved to disband as a tribe, or band of Indians,
and to cut loose from the government, go to work, become self-sustaining,
and adopt the habits and customs of a higher civilization. To accomplish what
would seem to be a desirable and laudable purpose, all who were able to do
so went to work to earn a living. The Omaha Indians, who speak the same
language, and with whom many of the Poncas have long continued to
intermarry, gave them employment and ground to cultivate, so as to make
them self-sustaining. And it was when at the Omaha reservation, and when
 thus employed, that they were arrested by order of the government, for the
purpose of being taken back to the Indian Territory. They claim to be unable
to see the justice, or reason, or wisdom, or necessity, of removing them by
force from their own native plains and blood relations to a far-off country, in
which they can see little but new-made graves opening for their reception.
The land from which they fled in fear has no attractions for them. The love of
home and native land was strong enough in the minds of these people to
induce them to brave every peril to return and live and die where they had
been reared. The bones of the dead son of Standing Bear were not to repose in
the land they hoped to be leaving forever, but were carefully preserved and
protected and formed a part of what was to them melancholy procession
homeward. Such instances of parental affections, and such love home and
native land, may be heathen in origin, but it seems to that they are not unlike
Christian in principle.

And the court declared that the Indians were illegally held by authority of the
United States and in violation of their right to life, liberty, and the pursuit of
happiness, and ordered their release from custody.

This case is very similarly to the case of Standing Bear and others.

I think this Court should declare that section 2145 and 2759 of the Administrative
Code of 1917 are unconstitutional, null and void, and that the petitioners are illegally
restrained of their liberty, and that they have been denied the equal protection of the
law, and order the respondents immediately to liberate all of the petitioners.

Footnotes
1 218 U.S., 302; 54 L. ed., 1049.
 Rubi vs Provincial Board of Mindoro
Constitutional Law : Article VI, Sec. 1(Legislative Power; Non-Delegation)

G.R. No. L-14078; March 7, 1919; 39 Phil 660

FACTS:
The case is an application for habeas corpus in favor of Rubi and other Manguianes of
the Province of Mindoro. It is alleged that the Maguianes are being illegally deprived
of their liberty by the provincial officials of that province. Rubi and his companions
are said to be held on the reservation established at Tigbao, Mindoro, against their
will, and one Dabalos is said to be held under the custody of the provincial sheriff in
the prison at Calapan for having run away from the reservation.
The provincial governor of Mindoro and the provincial board thereof directed the
Manguianes in question to take up their habitation in Tigbao, a site on the shore of
Lake Naujan, selected by the provincial governor and approved by the provincial
board. The action was taken in accordance with section 2145 of the Administrative
Code of 1917, and was duly approved by the Secretary of the Interior as required by
said action.

Section 2145 of the Administrative Code of 1917 reads as follows:

SEC. 2145. Establishment of non-Christian upon sites selected by provincial governor. —

With the prior approval of the Department Head, the provincial governor of any
province in which non-Christian inhabitants are found is authorized, when such a
course is deemed necessary in the interest of law and order, to direct such
inhabitants to take up their habitation on sites on unoccupied public lands to be
selected by him an approved by the provincial board.

Petitioners, however, challenge the validity of this section of the Administrative

Code.

ISSUE:
Does section 2145 of the Administrative Code of 1917 constitute an unlawful
delegation of legislative power by the Philippine Legislature to a provincial official
and a department head, therefore making it unconstitutional?

HELD:
No. The Philippine Legislature has here conferred authority upon the Province of
Mindoro, to be exercised by the provincial governor and the provincial board.
In determining whether the delegation of legislative power is valid or not, the
distinction is between the delegation of power to make the law, which necessarily
involves a discretion as to what it shall be, and conferring an authority or discretion
as to its execution, to be exercised under and in pursuance of the law. The first
cannot be done; to the later no valid objection can be made. Discretion may be
committed by the Legislature to an executive department or official. The Legislature
may make decisions of executive departments of subordinate official thereof, to
whom it has committed the execution of certain acts, final on questions of fact. The
growing tendency in the decision is to give prominence to the "necessity" of the case.
In enacting the said provision of the Administrative Code, the Legislature merely
conferred upon the provincial governor, with the approval of the provincial board
and the Department Head, discretionary authority as to the execution of the law.
This is necessary since the provincial governor and the provincial board, as the
official representatives of the province, are better qualified to judge “when such as
course is deemed necessary in the interest of law and order”. As officials charged
with the administration of the province and the protection of its inhabitants, they are
better fitted to select sites which have the conditions most favorable for improving
the people who have the misfortune of being in a backward state.

Hence, Section 2145 of the Administrative Code of 1917 is not an unlawful

delegation of legislative power by the Philippine Legislature to provincial official
and a department head.
 U.S. Supreme Court
Nebbia v. New York, 291 U.S. 502 (1934)
Nebbia v. New York
No. 531
Argued December 4, 5, 1933
Decided March 5, 1934
291 U.S. 502

Syllabus

1. As a basis for attacking a discriminatory regulation of prices, under the equal

protection clause of the Fourteenth Amendment, the party complaining must show
that he himself is adversely affected by it. P. 291 U. S. 520.

2. A regulation fixing the price at which storekeepers may buy milk from milk
dealers at a higher figure than that allowed dealers in buying from producers, and
allowing dealers a higher price than it allows storekeepers in sales to
consumers, held consistent with the equal protection clause of the Fourteenth
Amendment because of the distinctions between the two classes of merchants. P. 291
U. S. 521.

3. As part of a plan to remedy evils in the milk industry which reduced the income of
the producer below cost of production and threatened to deprive the community of
an assured supply of milk, a New York statute sought to prevent destructive price-
cutting by stores which, under the peculiar circumstances, were able to buy at much
lower prices than the larger distributors and to sell without incurring delivery costs,
and, to that end, an order of a state board acting under the statute fixed a minimum
price of ten cents per quart for sales by distributors to consumers and of nine cents
per quart for sales by stores to consumers.Held that, as applied to a storekeeper, the
regulation could not be adjudged in conflict with the due process clause of the
Fourteenth Amendment, since, in view of the facts set forth in the opinion, it
appeared not to be unreasonable or arbitrary or without relation to the purpose of
the legislation. Pp. 291 U. S. 530 et seq.

4. The use of private property and the making of private contracts are, as a general
rule, free from governmental interference; but they are subject to public regulation
when the public need requires. P. 291 U. S. 523.

5. The due process clause of the Fourteenth Amendment conditions the exertion of
regulatory power by requiring that the end shall be accomplished by methods
consistent with due process, that the regulation shall not be unreasonable, arbitrary
or capricious, and that the means selected shall have a real and substantial relation to
the object sought to be attained. P. 291 U. S. 525.

Page 291 U. S. 503

6. It results that a regulation valid for one sort of business, or in given circumstances,
may be invalid for another sort, or for the same business under other circumstances,
because the reasonableness of each regulation depends upon the relevant facts.
P. 291 U. S. 525.
7. The power of a State to regulate business in the public interest extends to the
control and regulation of prices for which commodities may be sold, where price
regulation is a reasonable and appropriate means of rectifying the evil calling for the
regulation. Pp. 291 U. S. 531 et seq.

8. There is no principle limiting price regulation to businesses which are public

utilities, or which have a monopoly or enjoy a public grant or franchise. Munn v.
Illinois, 94 U. S. 113. P. 291 U. S. 531.

9. To say that property is "clothed with a public interest," or an industry is "affected

with a public interest," means that the property or the industry, for adequate reason,
is subject to control for the public good. Pp.291 U. S. 531-536.

10. There is no closed class or category of businesses affected with a public interest,
and the function of courts in the application of the Fifth and Fourteenth
Amendments is to determine in each case whether circumstances vindicate the
challenged regulation as a reasonable exertion of governmental authority or
condemn it as arbitrary or discriminatory. P. 291 U. S. 536.

11. Decisions denying the power to control prices in businesses found not to be
"affected with a public interest" or "clothed with a public use" must rest finally upon
the basis that the requirements of due process were not met because the laws were
found arbitrary in their operation and effect. P. 291 U. S. 536.

12. So far as the requirement of due process is concerned, and in the absence of other
constitutional restriction, a State is free to adopt whatever economic policy may
reasonably be deemed to promote public welfare, and to enforce that policy by
legislation adapted to its purpose. The courts are without authority either to declare
such policy, or, when it is declared by the legislature, to override it. If the laws
passed are seen to have a reasonable relation to a proper legislative purpose, and are
neither arbitrary nor discriminatory, the requirements of due process are satisfied,
and judicial determination to that effect renders a court functus officio. P. 291 U. S.
503.

13. The legislature is primarily the judge of the necessity of such an enactment; every
possible presumption is in favor of its validity, and though the court may think the
enactment unwise, it may not be annulled unless palpably in excess of legislative
power. P. 291 U. S. 537.

Page 291 U. S. 504

14. If the lawmaking body, within its sphere of government, concludes that the
conditions or practices in an industry make unrestricted competition an inadequate
safeguard of the consumer's interests, produce waste harmful to the public, threaten
ultimately to cut off the supply of a commodity needed by the public, or portend the
destruction of the industry itself, appropriate statutes passed in an honest effort to
correct the threatened consequences may not be set aside because the regulation
adopted fixes prices -- reasonably deemed by the legislature to be fair to those
engaged in the industry and to the consuming public. P. 291 U. S. 538.
15. This is especially clear where the economic maladjustment is one of price, which
threatens harm to the producer at one end of the series, and the consumer, at the
other. P. 291 U. S. 538.

16. The Constitution does not secure to anyone liberty to conduct his business in
such fashion as to inflict injury upon the public at large, or upon any substantial
group of people. P. 291 U. S. 539.

17. Price control, like any other form of regulation, is unconstitutional only if
arbitrary, discriminatory, or demonstrably irrelevant to the policy the legislature is
free to adopt, and hence an unnecessary and unwarranted interference with
individual liberty. P. 291 U. S. 539.

262 N.Y. 259; 186 N.E. 694, affirmed.

The New York Court of Appeals affirmed the conviction of a storekeeper for selling
milk at a price below that allowed by an order promulgated by a state board
pursuant to statutory authority. The appeal here is from the judgment of the County
Court entered on remittitur.

Page 291 U. S. 515

 Tumey v. Ohio, 273 U.S. 510 (1927)
Tumey v. Ohio
No. 527
Argued November 29, 30, 1926
Decided March 7, 1927
273 U.S. 510

Syllabus

1. To subject a defendant to trial in a criminal case involving his liberty or property

before a judge having a direct, personal, substantial interest in convicting him is a
denial of due process of law. P. 273 U. S. 522.

2. A system by which an inferior judge is paid for his service only when he convicts
the defendant has not become so customary in the common law or in this country
that it can be regarded as due process where the costs usually imposed are not so
small as to be within the maxim de minimis non curat lex. Pp. 273 U. S. 523, 273 U. S.
531.

Page 273 U. S. 511

3. Under statutes of Ohio, offenses against State prohibition, involving a wide range
of fines enforceable by imprisonment, may be tried without a jury, before the mayor
of any rural village situate in the county (however populous) in which offenses
occur; his judgment upon the facts is final and conclusive unless so clearly
unsupported as to indicate mistake, bias, or willful disregard of duty; the fines are
divided between the State and village; the village, by means of the fines collected,
hires attorneys and detectives to arrest alleged offenders anywhere in the county and
prosecute them before the mayor; in addition to his salary, the mayor, when he
convicts, but not otherwise, receive his fees and cost amounting to a substantial
income; the fine offer a means of adding materially to the financial prosperity of the
village, for which the mayor, in his executive capacity, is responsible. Held violative
of the Fourteenth Amendment. Pp. 273 U. S. 520, 273 U. S. 531.

115 Oh.St. 701, reversed.

ERROR to a judgment of the Supreme Court of Ohio which declined to review a

judgment of the State Court of Appeals, 22 Oh.L.Rep. 634, reversing a judgment of
the Court of Common Pleas of Hamilton County, 25 Oh.Nisi Prius (N.S.) 580, which
reversed a judgment of the Mayor of the Village of North College Hill convicting
and fining Tumey for violation of the Ohio Prohibition Act and ordering that he be
imprisoned until the fine and costs were paid.

Page 273 U. S. 514

 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-7995 May 31, 1957

LAO H. ICHONG, in his own behalf and in behalf of other alien residents, corporations and
partnerships adversely affected. by Republic Act No. 1180, petitioner,
vs.
JAIME HERNANDEZ, Secretary of Finance, and MARCELINO SARMIENTO, City Treasurer of
Manila,respondents.

Ozaeta, Lichauco and Picazo and Sycip, Quisumbing, Salazar and Associates for petitioner.
Office of the Solicitor General Ambrosio Padilla and Solicitor Pacifico P. de Castro for respondent
Secretary of Finance.
City Fiscal Eugenio Angeles and Assistant City Fiscal Eulogio S. Serrano for respondent City Treasurer.
Dionisio Reyes as Amicus Curiae.
Marcial G. Mendiola as Amicus Curiae.
Emiliano R. Navarro as Amicus Curiae.

LABRADOR, J.:

I. The case and issue, in general

This Court has before it the delicate task of passing upon the validity and constitutionality of a legislative
enactment, fundamental and far-reaching in significance. The enactment poses questions of due process,
police power and equal protection of the laws. It also poses an important issue of fact, that is whether the
conditions which the disputed law purports to remedy really or actually exist. Admittedly springing from a
deep, militant, and positive nationalistic impulse, the law purports to protect citizen and country from the
alien retailer. Through it, and within the field of economy it regulates, Congress attempts to translate
national aspirations for economic independence and national security, rooted in the drive and urge for
national survival and welfare, into a concrete and tangible measures designed to free the national retailer
from the competing dominance of the alien, so that the country and the nation may be free from a
supposed economic dependence and bondage. Do the facts and circumstances justify the enactment?

II. Pertinent provisions of Republic Act No. 1180

Republic Act No. 1180 is entitled "An Act to Regulate the Retail Business." In effect it nationalizes the retail
trade business. The main provisions of the Act are: (1) a prohibition against persons, not citizens of the
Philippines, and against associations, partnerships, or corporations the capital of which are not wholly
owned by citizens of the Philippines, from engaging directly or indirectly in the retail trade; (2) an exception
from the above prohibition in favor of aliens actually engaged in said business on May 15, 1954, who are
allowed to continue to engaged therein, unless their licenses are forfeited in accordance with the law, until
their death or voluntary retirement in case of natural persons, and for ten years after the approval of the Act
or until the expiration of term in case of juridical persons; (3) an exception therefrom in favor of citizens and
juridical entities of the United States; (4) a provision for the forfeiture of licenses (to engage in the retail
business) for violation of the laws on nationalization, control weights and measures and labor and other
laws relating to trade, commerce and industry; (5) a prohibition against the establishment or opening by
aliens actually engaged in the retail business of additional stores or branches of retail business, (6) a
provision requiring aliens actually engaged in the retail business to present for registration with the proper
authorities a verified statement concerning their businesses, giving, among other matters, the nature of the
business, their assets and liabilities and their offices and principal offices of judicial entities; and (7) a
provision allowing the heirs of aliens now engaged in the retail business who die, to continue such business
for a period of six months for purposes of liquidation.

III. Grounds upon which petition is based-Answer thereto

Petitioner, for and in his own behalf and on behalf of other alien residents corporations and partnerships
adversely affected by the provisions of Republic Act. No. 1180, brought this action to obtain a judicial
declaration that said Act is unconstitutional, and to enjoin the Secretary of Finance and all other persons
acting under him, particularly city and municipal treasurers, from enforcing its provisions. Petitioner attacks
the constitutionality of the Act, contending that: (1) it denies to alien residents the equal protection of the
laws and deprives of their liberty and property without due process of law ; (2) the subject of the Act is not
expressed or comprehended in the title thereof; (3) the Act violates international and treaty obligations of
the Republic of the Philippines; (4) the provisions of the Act against the transmission by aliens of their retail
business thru hereditary succession, and those requiring 100% Filipino capitalization for a corporation or
entity to entitle it to engage in the retail business, violate the spirit of Sections 1 and 5, Article XIII and
Section 8 of Article XIV of the Constitution.

In answer, the Solicitor-General and the Fiscal of the City of Manila contend that: (1) the Act was passed in
the valid exercise of the police power of the State, which exercise is authorized in the Constitution in the
interest of national economic survival; (2) the Act has only one subject embraced in the title; (3) no treaty or
international obligations are infringed; (4) as regards hereditary succession, only the form is affected but
the value of the property is not impaired, and the institution of inheritance is only of statutory origin.

IV. Preliminary consideration of legal principles involved

a. The police power. —

There is no question that the Act was approved in the exercise of the police power, but petitioner claims
that its exercise in this instance is attended by a violation of the constitutional requirements of due process
and equal protection of the laws. But before proceeding to the consideration and resolution of the ultimate
issue involved, it would be well to bear in mind certain basic and fundamental, albeit preliminary,
considerations in the determination of the ever recurrent conflict between police power and the guarantees
of due process and equal protection of the laws. What is the scope of police power, and how are the due
process and equal protection clauses related to it? What is the province and power of the legislature, and
what is the function and duty of the courts? These consideration must be clearly and correctly understood
that their application to the facts of the case may be brought forth with clarity and the issue accordingly
resolved.

It has been said the police power is so far - reaching in scope, that it has become almost impossible to limit
its sweep. As it derives its existence from the very existence of the State itself, it does not need to be
expressed or defined in its scope; it is said to be co-extensive with self-protection and survival, and as such
it is the most positive and active of all governmental processes, the most essential, insistent and illimitable.
Especially is it so under a modern democratic framework where the demands of society and of nations
have multiplied to almost unimaginable proportions; the field and scope of police power has become almost
boundless, just as the fields of public interest and public welfare have become almost all-embracing and
have transcended human foresight. Otherwise stated, as we cannot foresee the needs and demands of
public interest and welfare in this constantly changing and progressive world, so we cannot delimit
beforehand the extent or scope of police power by which and through which the State seeks to attain or
achieve interest or welfare. So it is that Constitutions do not define the scope or extent of the police power
of the State; what they do is to set forth the limitations thereof. The most important of these are the due
process clause and the equal protection clause.

b. Limitations on police power. —

The basic limitations of due process and equal protection are found in the following provisions of our
Constitution:

SECTION 1.(1) No person shall be deprived of life, liberty or property without due process of law,
nor any person be denied the equal protection of the laws. (Article III, Phil. Constitution)

These constitutional guarantees which embody the essence of individual liberty and freedom in
democracies, are not limited to citizens alone but are admittedly universal in their application, without
regard to any differences of race, of color, or of nationality. (Yick Wo vs. Hopkins, 30, L. ed. 220, 226.)

c. The, equal protection clause. —

The equal protection of the law clause is against undue favor and individual or class privilege, as well as
hostile discrimination or the oppression of inequality. It is not intended to prohibit legislation, which is limited
either in the object to which it is directed or by territory within which is to operate. It does not demand
absolute equality among residents; it merely requires that all persons shall be treated alike, under like
circumstances and conditions both as to privileges conferred and liabilities enforced. The equal protection
clause is not infringed by legislation which applies only to those persons falling within a specified class, if it
applies alike to all persons within such class, and reasonable grounds exists for making a distinction
between those who fall within such class and those who do not. (2 Cooley, Constitutional Limitations, 824-
825.)

d. The due process clause. —

The due process clause has to do with the reasonableness of legislation enacted in pursuance of the police
power. Is there public interest, a public purpose; is public welfare involved? Is the Act reasonably
necessary for the accomplishment of the legislature's purpose; is it not unreasonable, arbitrary or
oppressive? Is there sufficient foundation or reason in connection with the matter involved; or has there not
been a capricious use of the legislative power? Can the aims conceived be achieved by the means used,
or is it not merely an unjustified interference with private interest? These are the questions that we ask
when the due process test is applied.

The conflict, therefore, between police power and the guarantees of due process and equal protection of
the laws is more apparent than real. Properly related, the power and the guarantees are supposed to
coexist. The balancing is the essence or, shall it be said, the indispensable means for the attainment of
legitimate aspirations of any democratic society. There can be no absolute power, whoever exercise it, for
that would be tyranny. Yet there can neither be absolute liberty, for that would mean license and anarchy.
So the State can deprive persons of life, liberty and property, provided there is due process of law; and
persons may be classified into classes and groups, provided everyone is given the equal protection of the
law. The test or standard, as always, is reason. The police power legislation must be firmly grounded on
public interest and welfare, and a reasonable relation must exist between purposes and means. And if
distinction and classification has been made, there must be a reasonable basis for said distinction.

e. Legislative discretion not subject to judicial review. —

Now, in this matter of equitable balancing, what is the proper place and role of the courts? It must not be
overlooked, in the first place, that the legislature, which is the constitutional repository of police power and
exercises the prerogative of determining the policy of the State, is by force of circumstances primarily the
judge of necessity, adequacy or reasonableness and wisdom, of any law promulgated in the exercise of the
police power, or of the measures adopted to implement the public policy or to achieve public interest. On
the other hand, courts, although zealous guardians of individual liberty and right, have nevertheless
evinced a reluctance to interfere with the exercise of the legislative prerogative. They have done so early
where there has been a clear, patent or palpable arbitrary and unreasonable abuse of the legislative
prerogative. Moreover, courts are not supposed to override legitimate policy, and courts never inquire into
the wisdom of the law.

V. Economic problems sought to be remedied

With the above considerations in mind, we will now proceed to delve directly into the issue involved. If the
disputed legislation were merely a regulation, as its title indicates, there would be no question that it falls
within the legitimate scope of legislative power. But it goes further and prohibits a group of residents, the
aliens, from engaging therein. The problem becomes more complex because its subject is a common,
trade or occupation, as old as society itself, which from the immemorial has always been open to residents,
irrespective of race, color or citizenship.

a. Importance of retail trade in the economy of the nation. —

In a primitive economy where families produce all that they consume and consume all that they produce,
the dealer, of course, is unknown. But as group life develops and families begin to live in communities
producing more than what they consume and needing an infinite number of things they do not produce, the
dealer comes into existence. As villages develop into big communities and specialization in production
begins, the dealer's importance is enhanced. Under modern conditions and standards of living, in which
man's needs have multiplied and diversified to unlimited extents and proportions, the retailer comes as
essential as the producer, because thru him the infinite variety of articles, goods and needed for daily life
are placed within the easy reach of consumers. Retail dealers perform the functions of capillaries in the
human body, thru which all the needed food and supplies are ministered to members of the communities
comprising the nation.

There cannot be any question about the importance of the retailer in the life of the community. He ministers
to the resident's daily needs, food in all its increasing forms, and the various little gadgets and things
needed for home and daily life. He provides his customers around his store with the rice or corn, the fish,
the salt, the vinegar, the spices needed for the daily cooking. He has cloths to sell, even the needle and the
thread to sew them or darn the clothes that wear out. The retailer, therefore, from the lowly peddler, the
owner of a small sari-sari store, to the operator of a department store or, a supermarket is so much a part
of day-to-day existence.

b. The alien retailer's trait. —

The alien retailer must have started plying his trades in this country in the bigger centers of population
(Time there was when he was unknown in provincial towns and villages). Slowly but gradually be invaded
towns and villages; now he predominates in the cities and big centers of population. He even pioneers, in
far away nooks where the beginnings of community life appear, ministering to the daily needs of the
residents and purchasing their agricultural produce for sale in the towns. It is an undeniable fact that in
many communities the alien has replaced the native retailer. He has shown in this trade, industry without
limit, and the patience and forbearance of a slave.

Derogatory epithets are hurled at him, but he laughs these off without murmur; insults of ill-bred and
insolent neighbors and customers are made in his face, but he heeds them not, and he forgets and
forgives. The community takes note of him, as he appears to be harmless and extremely useful.

c. Alleged alien control and dominance. —

There is a general feeling on the part of the public, which appears to be true to fact, about the controlling
and dominant position that the alien retailer holds in the nation's economy. Food and other essentials,
clothing, almost all articles of daily life reach the residents mostly through him. In big cities and centers of
population he has acquired not only predominance, but apparent control over distribution of almost all kinds
of goods, such as lumber, hardware, textiles, groceries, drugs, sugar, flour, garlic, and scores of other
goods and articles. And were it not for some national corporations like the Naric, the Namarco, the
Facomas and the Acefa, his control over principal foods and products would easily become full and
complete.

Petitioner denies that there is alien predominance and control in the retail trade. In one breath it is said that
the fear is unfounded and the threat is imagined; in another, it is charged that the law is merely the result of
radicalism and pure and unabashed nationalism. Alienage, it is said, is not an element of control; also so
many unmanageable factors in the retail business make control virtually impossible. The first argument
which brings up an issue of fact merits serious consideration. The others are matters of opinion within the
exclusive competence of the legislature and beyond our prerogative to pass upon and decide.

The best evidence are the statistics on the retail trade, which put down the figures in black and white.
Between the constitutional convention year (1935), when the fear of alien domination and control of the
retail trade already filled the minds of our leaders with fears and misgivings, and the year of the enactment
of the nationalization of the retail trade act (1954), official statistics unmistakably point out to the ever-
increasing dominance and control by the alien of the retail trade, as witness the following tables:

Assets Gross Sales

Year and Retailers No.- Per cent Per cent
Pesos Pesos
Nationality Establishments Distribution Distribution
1941:
Filipino .......... 106,671 200,323,138 55.82 174,181,924 51.74
Chinese 15,356 118,348,692 32.98 148,813,239 44.21
...........
Others ............ 1,646 40,187,090 11.20 13,630,239 4.05
1947:
Filipino .......... 111,107 208,658,946 65.05 279,583,333 57.03
Chinese 13,774 106,156,218 33.56 205,701,134 41.96
...........
Others ........... 354 8,761,260 .49 4,927,168 1.01
1948: (Census)
Filipino .......... 113,631 213,342,264 67.30 467,161,667 60.51
Chinese .......... 12,087 93,155,459 29.38 294,894,227 38.20
Others .......... 422 10,514,675 3.32 9,995,402 1.29
1949:
Filipino .......... 113,659 213,451,602 60.89 462,532,901 53.47
Chinese .......... 16,248 125,223,336 35.72 392,414,875 45.36
Others .......... 486 12,056,365 3.39 10,078,364 1.17
1951:
Filipino ......... 119,352 224,053,620 61.09 466,058,052 53.07
Chinese .......... 17,429 134,325,303 36.60 404,481,384 46.06
Others .......... 347 8,614,025 2.31 7,645,327 87
 AVERAGE
ASSETS AND GROSS SALES PER ESTABLISHMENT

Item Gross
Year and Retailer's
Assets Sales
Nationality
(Pesos) (Pesos)

1941:

Filipino ............................................. 1,878 1,633

Chinese .............................................. 7,707 9,691

Others ............................................... 24,415 8,281

1947:

Filipino ............................................. 1,878 2,516

Chinese ........................................... 7,707 14,934

Others .............................................. 24,749 13,919

1948: (Census)

Filipino ............................................. 1,878 4,111

Chinese ............................................. 7,707 24,398

Others .............................................. 24,916 23,686

1949:

Filipino ............................................. 1,878 4,069

Chinese .............................................. 7,707 24,152

Others .............................................. 24,807 20,737

1951:

Filipino ............................................. 1,877 3,905

Chinese ............................................. 7,707 33,207

Others ............................................... 24,824 22,033

(Estimated Assets and Gross Sales of Retail Establishments, By Year and Nationality of Owners,
Benchmark: 1948 Census, issued by the Bureau of Census and Statistics, Department of
Commerce and Industry; pp. 18-19 of Answer.)

The above statistics do not include corporations and partnerships, while the figures on Filipino
establishments already include mere market vendors, whose capital is necessarily small..

The above figures reveal that in percentage distribution of assests and gross sales, alien participation has
steadily increased during the years. It is true, of course, that Filipinos have the edge in the number of
retailers, but aliens more than make up for the numerical gap through their assests and gross sales which
average between six and seven times those of the very many Filipino retailers. Numbers in retailers, here,
do not imply superiority; the alien invests more capital, buys and sells six to seven times more, and gains
much more. The same official report, pointing out to the known predominance of foreign elements in the
retail trade, remarks that the Filipino retailers were largely engaged in minor retailer enterprises. As
observed by respondents, the native investment is thinly spread, and the Filipino retailer is practically
helpless in matters of capital, credit, price and supply.

d. Alien control and threat, subject of apprehension in Constitutional convention. —

It is this domination and control, which we believe has been sufficiently shown to exist, that is the
legislature's target in the enactment of the disputed nationalization would never have been adopted. The
framers of our Constitution also believed in the existence of this alien dominance and control when they
approved a resolution categorically declaring among other things, that "it is the sense of the Convention
that the public interest requires the nationalization of the retail trade; . . . ." (II Aruego, The Framing of the
Philippine Constitution, 662-663, quoted on page 67 of Petitioner.) That was twenty-two years ago; and the
events since then have not been either pleasant or comforting. Dean Sinco of the University of the
Philippines College of Law, commenting on the patrimony clause of the Preamble opines that the fathers of
our Constitution were merely translating the general preoccupation of Filipinos "of the dangers from alien
interests that had already brought under their control the commercial and other economic activities of the
country" (Sinco, Phil. Political Law, 10th ed., p. 114); and analyzing the concern of the members of the
constitutional convention for the economic life of the citizens, in connection with the nationalistic provisions
of the Constitution, he says:

But there has been a general feeling that alien dominance over the economic life of the country is
not desirable and that if such a situation should remain, political independence alone is no
guarantee to national stability and strength. Filipino private capital is not big enough to wrest from
alien hands the control of the national economy. Moreover, it is but of recent formation and hence,
largely inexperienced, timid and hesitant. Under such conditions, the government as the
instrumentality of the national will, has to step in and assume the initiative, if not the leadership, in
the struggle for the economic freedom of the nation in somewhat the same way that it did in the
crusade for political freedom. Thus . . . it (the Constitution) envisages an organized movement for
the protection of the nation not only against the possibilities of armed invasion but also against its
economic subjugation by alien interests in the economic field. (Phil. Political Law by Sinco, 10th
ed., p. 476.)

Belief in the existence of alien control and predominance is felt in other quarters. Filipino businessmen,
manufacturers and producers believe so; they fear the dangers coming from alien control, and they express
sentiments of economic independence. Witness thereto is Resolution No. 1, approved on July 18, 1953, of
the Fifth National convention of Filipino Businessmen, and a similar resolution, approved on March 20,
1954, of the Second National Convention of Manufacturers and Producers. The man in the street also
believes, and fears, alien predominance and control; so our newspapers, which have editorially pointed out
not only to control but to alien stranglehold. We, therefore, find alien domination and control to be a fact, a
reality proved by official statistics, and felt by all the sections and groups that compose the Filipino
community.

e. Dangers of alien control and dominance in retail. —

But the dangers arising from alien participation in the retail trade does not seem to lie in the predominance
alone; there is a prevailing feeling that such predominance may truly endanger the national interest. With
ample capital, unity of purpose and action and thorough organization, alien retailers and merchants can act
in such complete unison and concert on such vital matters as the fixing of prices, the determination of the
amount of goods or articles to be made available in the market, and even the choice of the goods or
articles they would or would not patronize or distribute, that fears of dislocation of the national economy
and of the complete subservience of national economy and of the consuming public are not entirely
unfounded. Nationals, producers and consumers alike can be placed completely at their mercy. This is
easily illustrated. Suppose an article of daily use is desired to be prescribed by the aliens, because the
producer or importer does not offer them sufficient profits, or because a new competing article offers bigger
profits for its introduction. All that aliens would do is to agree to refuse to sell the first article, eliminating it
from their stocks, offering the new one as a substitute. Hence, the producers or importers of the prescribed
article, or its consumers, find the article suddenly out of the prescribed article, or its consumers, find the
article suddenly out of circulation. Freedom of trade is thus curtailed and free enterprise correspondingly
suppressed.

We can even go farther than theoretical illustrations to show the pernicious influences of alien domination.
Grave abuses have characterized the exercise of the retail trade by aliens. It is a fact within judicial notice,
which courts of justice may not properly overlook or ignore in the interests of truth and justice, that there
exists a general feeling on the part of the public that alien participation in the retail trade has been attended
by a pernicious and intolerable practices, the mention of a few of which would suffice for our purposes; that
at some time or other they have cornered the market of essential commodities, like corn and rice, creating
artificial scarcities to justify and enhance profits to unreasonable proportions; that they have hoarded
essential foods to the inconvenience and prejudice of the consuming public, so much so that the
Government has had to establish the National Rice and Corn Corporation to save the public from their
continuous hoarding practices and tendencies; that they have violated price control laws, especially on
foods and essential commodities, such that the legislature had to enact a law (Sec. 9, Republic Act No.
1168), authorizing their immediate and automatic deportation for price control convictions; that they have
secret combinations among themselves to control prices, cheating the operation of the law of supply and
demand; that they have connived to boycott honest merchants and traders who would not cater or yield to
their demands, in unlawful restraint of freedom of trade and enterprise. They are believed by the public to
have evaded tax laws, smuggled goods and money into and out of the land, violated import and export
prohibitions, control laws and the like, in derision and contempt of lawful authority. It is also believed that
they have engaged in corrupting public officials with fabulous bribes, indirectly causing the prevalence of
graft and corruption in the Government. As a matter of fact appeals to unscrupulous aliens have been
made both by the Government and by their own lawful diplomatic representatives, action which impliedly
admits a prevailing feeling about the existence of many of the above practices.

The circumstances above set forth create well founded fears that worse things may come in the future. The
present dominance of the alien retailer, especially in the big centers of population, therefore, becomes a
potential source of danger on occasions of war or other calamity. We do not have here in this country
isolated groups of harmless aliens retailing goods among nationals; what we have are well organized and
powerful groups that dominate the distribution of goods and commodities in the communities and big
centers of population. They owe no allegiance or loyalty to the State, and the State cannot rely upon them
in times of crisis or emergency. While the national holds his life, his person and his property subject to the
needs of his country, the alien may even become the potential enemy of the State.

f. Law enacted in interest of national economic survival and security. —

We are fully satisfied upon a consideration of all the facts and circumstances that the disputed law is not
the product of racial hostility, prejudice or discrimination, but the expression of the legitimate desire and
determination of the people, thru their authorized representatives, to free the nation from the economic
situation that has unfortunately been saddled upon it rightly or wrongly, to its disadvantage. The law is
clearly in the interest of the public, nay of the national security itself, and indisputably falls within the scope
of police power, thru which and by which the State insures its existence and security and the supreme
welfare of its citizens.

VI. The Equal Protection Limitation

a. Objections to alien participation in retail trade. — The next question that now poses solution is, Does the
law deny the equal protection of the laws? As pointed out above, the mere fact of alienage is the root and
cause of the distinction between the alien and the national as a trader. The alien resident owes allegiance
to the country of his birth or his adopted country; his stay here is for personal convenience; he is attracted
by the lure of gain and profit. His aim or purpose of stay, we admit, is neither illegitimate nor immoral, but
he is naturally lacking in that spirit of loyalty and enthusiasm for this country where he temporarily stays
and makes his living, or of that spirit of regard, sympathy and consideration for his Filipino customers as
would prevent him from taking advantage of their weakness and exploiting them. The faster he makes his
pile, the earlier can the alien go back to his beloved country and his beloved kin and countrymen. The
experience of the country is that the alien retailer has shown such utter disregard for his customers and the
people on whom he makes his profit, that it has been found necessary to adopt the legislation, radical as it
may seem.

Another objection to the alien retailer in this country is that he never really makes a genuine contribution to
national income and wealth. He undoubtedly contributes to general distribution, but the gains and profits he
makes are not invested in industries that would help the country's economy and increase national wealth.
The alien's interest in this country being merely transient and temporary, it would indeed be ill-advised to
continue entrusting the very important function of retail distribution to his hands.

The practices resorted to by aliens in the control of distribution, as already pointed out above, their secret
manipulations of stocks of commodities and prices, their utter disregard of the welfare of their customers
and of the ultimate happiness of the people of the nation of which they are mere guests, which practices,
manipulations and disregard do not attend the exercise of the trade by the nationals, show the existence of
real and actual, positive and fundamental differences between an alien and a national which fully justify the
legislative classification adopted in the retail trade measure. These differences are certainly a valid reason
for the State to prefer the national over the alien in the retail trade. We would be doing violence to fact and
reality were we to hold that no reason or ground for a legitimate distinction can be found between one and
the other.

b. Difference in alien aims and purposes sufficient basis for distinction. —

The above objectionable characteristics of the exercise of the retail trade by the aliens, which are actual
and real, furnish sufficient grounds for legislative classification of retail traders into nationals and aliens.
Some may disagree with the wisdom of the legislature's classification. To this we answer, that this is the
prerogative of the law-making power. Since the Court finds that the classification is actual, real and
reasonable, and all persons of one class are treated alike, and as it cannot be said that the classification is
patently unreasonable and unfounded, it is in duty bound to declare that the legislature acted within its
legitimate prerogative and it can not declare that the act transcends the limit of equal protection established
by the Constitution.
Broadly speaking, the power of the legislature to make distinctions and classifications among persons is
not curtailed or denied by the equal protection of the laws clause. The legislative power admits of a wide
scope of discretion, and a law can be violative of the constitutional limitation only when the classification is
without reasonable basis. In addition to the authorities we have earlier cited, we can also refer to the case
of Linsey vs. Natural Carbonic Fas Co. (1911), 55 L. ed., 369, which clearly and succinctly defined the
application of equal protection clause to a law sought to be voided as contrary thereto:

. . . . "1. The equal protection clause of the Fourteenth Amendment does not take from the state
the power to classify in the adoption of police laws, but admits of the exercise of the wide scope of
discretion in that regard, and avoids what is done only when it is without any reasonable basis, and
therefore is purely arbitrary. 2. A classification having some reasonable basis does not offend
against that clause merely because it is not made with mathematical nicety, or because in practice
it results in some inequality. 3. When the classification in such a law is called in question, if any
state of facts reasonably can be conceived that would sustain it, the existence of that state of facts
at the time the law was enacted must be assumed. 4. One who assails the classification in such a
law must carry the burden of showing that it does not rest upon any reasonable basis but is
essentially arbitrary."

c. Authorities recognizing citizenship as basis for classification. —

The question as to whether or not citizenship is a legal and valid ground for classification has already been
affirmatively decided in this jurisdiction as well as in various courts in the United States. In the case
of Smith Bell & Co. vs. Natividad, 40 Phil. 136, where the validity of Act No. 2761 of the Philippine
Legislature was in issue, because of a condition therein limiting the ownership of vessels engaged in
coastwise trade to corporations formed by citizens of the Philippine Islands or the United States, thus
denying the right to aliens, it was held that the Philippine Legislature did not violate the equal protection
clause of the Philippine Bill of Rights. The legislature in enacting the law had as ultimate purpose the
encouragement of Philippine shipbuilding and the safety for these Islands from foreign interlopers. We held
that this was a valid exercise of the police power, and all presumptions are in favor of its constitutionality. In
substance, we held that the limitation of domestic ownership of vessels engaged in coastwise trade to
citizens of the Philippines does not violate the equal protection of the law and due process or law clauses
of the Philippine Bill of Rights. In rendering said decision we quoted with approval the concurring opinion of
Justice Johnson in the case of Gibbons vs. Ogden, 9 Wheat., I, as follows:

"Licensing acts, in fact, in legislation, are universally restraining acts; as, for example, acts
licensing gaming houses, retailers of spirituous liquors, etc. The act, in this instance, is distinctly of
that character, and forms part of an extensive system, the object of which is to encourage
American shipping, and place them on an equal footing with the shipping of other nations. Almost
every commercial nation reserves to its own subjects a monopoly of its coasting trade; and a
countervailing privilege in favor of American shipping is contemplated, in the whole legislation of
the United States on this subject. It is not to give the vessel an American character, that the
license is granted; that effect has been correctly attributed to the act of her enrollment. But it is to
confer on her American privileges, as contra distinguished from foreign; and to preserve the
Government from fraud by foreigners; in surreptitiously intruding themselves into the American
commercial marine, as well as frauds upon the revenue in the trade coastwise, that this whole
system is projected."

The rule in general is as follows:

Aliens are under no special constitutional protection which forbids a classification otherwise
justified simply because the limitation of the class falls along the lines of nationality. That would be
requiring a higher degree of protection for aliens as a class than for similar classes than for similar
classes of American citizens. Broadly speaking, the difference in status between citizens and
aliens constitutes a basis for reasonable classification in the exercise of police power. (2 Am., Jur.
468-469.)

In Commonwealth vs. Hana, 81 N. E. 149 (Massachusetts, 1907), a statute on the licensing of hawkers and
peddlers, which provided that no one can obtain a license unless he is, or has declared his intention, to
become a citizen of the United States, was held valid, for the following reason: It may seem wise to the
legislature to limit the business of those who are supposed to have regard for the welfare, good order and
happiness of the community, and the court cannot question this judgment and conclusion. In Bloomfield vs.
State, 99 N. E. 309 (Ohio, 1912), a statute which prevented certain persons, among them aliens, from
engaging in the traffic of liquors, was found not to be the result of race hatred, or in hospitality, or a
deliberate purpose to discriminate, but was based on the belief that an alien cannot be sufficiently
acquainted with "our institutions and our life as to enable him to appreciate the relation of this particular
business to our entire social fabric", and was not, therefore, invalid. In Ohio ex rel. Clarke vs. Deckebach,
274 U. S. 392, 71 L. ed. 115 (1926), the U.S. Supreme Court had under consideration an ordinance of the
city of Cincinnati prohibiting the issuance of licenses (pools and billiard rooms) to aliens. It held that plainly
irrational discrimination against aliens is prohibited, but it does not follow that alien race and allegiance may
not bear in some instances such a relation to a legitimate object of legislation as to be made the basis of
permitted classification, and that it could not state that the legislation is clearly wrong; and that latitude must
be allowed for the legislative appraisement of local conditions and for the legislative choice of methods for
controlling an apprehended evil. The case of State vs. Carrol, 124 N. E. 129 (Ohio, 1919) is a parallel case
to the one at bar. In Asakura vs. City of Seattle, 210 P. 30 (Washington, 1922), the business of pawn
brooking was considered as having tendencies injuring public interest, and limiting it to citizens is within the
scope of police power. A similar statute denying aliens the right to engage in auctioneering was also
sustained in Wright vs. May, L.R.A., 1915 P. 151 (Minnesota, 1914). So also in Anton vs. Van Winkle, 297
F. 340 (Oregon, 1924), the court said that aliens are judicially known to have different interests, knowledge,
attitude, psychology and loyalty, hence the prohibitions of issuance of licenses to them for the business of
pawnbroker, pool, billiard, card room, dance hall, is not an infringement of constitutional rights. In Templar
vs. Michigan State Board of Examiners, 90 N.W. 1058 (Michigan, 1902), a law prohibiting the licensing of
aliens as barbers was held void, but the reason for the decision was the court's findings that the exercise of
the business by the aliens does not in any way affect the morals, the health, or even the convenience of the
community. In Takahashi vs. Fish and Game Commission, 92 L. ed. 1479 (1947), a California statute
banning the issuance of commercial fishing licenses to person ineligible to citizenship was held void,
because the law conflicts with Federal power over immigration, and because there is no public interest in
the mere claim of ownership of the waters and the fish in them, so there was no adequate justification for
the discrimination. It further added that the law was the outgrowth of antagonism toward the persons of
Japanese ancestry. However, two Justices dissented on the theory that fishing rights have been treated
traditionally as natural resources. In Fraser vs. McConway & Tarley Co., 82 Fed. 257 (Pennsylvania, 1897),
a state law which imposed a tax on every employer of foreign-born unnaturalized male persons over 21
years of age, was declared void because the court found that there was no reason for the classification and
the tax was an arbitrary deduction from the daily wage of an employee.

d. Authorities contra explained. —

It is true that some decisions of the Federal court and of the State courts in the United States hold that the
distinction between aliens and citizens is not a valid ground for classification. But in this decision the laws
declared invalid were found to be either arbitrary, unreasonable or capricious, or were the result or product
of racial antagonism and hostility, and there was no question of public interest involved or pursued. In Yu
Cong Eng vs. Trinidad, 70 L. ed. 1059 (1925), the United States Supreme Court declared invalid a
Philippine law making unlawful the keeping of books of account in any language other than English,
Spanish or any other local dialect, but the main reasons for the decisions are: (1) that if Chinese were
driven out of business there would be no other system of distribution, and (2) that the Chinese would fall
prey to all kinds of fraud, because they would be deprived of their right to be advised of their business and
to direct its conduct. The real reason for the decision, therefore, is the court's belief that no public benefit
would be derived from the operations of the law and on the other hand it would deprive Chinese of
something indispensable for carrying on their business. In Yick Wo vs. Hopkins, 30 L. ed 220 (1885) an
ordinance conferring powers on officials to withhold consent in the operation of laundries both as to
persons and place, was declared invalid, but the court said that the power granted was arbitrary, that there
was no reason for the discrimination which attended the administration and implementation of the law, and
that the motive thereof was mere racial hostility. In State vs. Montgomery, 47 A. 165 (Maine, 1900), a law
prohibiting aliens to engage as hawkers and peddlers was declared void, because the discrimination bore
no reasonable and just relation to the act in respect to which the classification was proposed.

The case at bar is radically different, and the facts make them so. As we already have said, aliens do not
naturally possess the sympathetic consideration and regard for the customers with whom they come in
daily contact, nor the patriotic desire to help bolster the nation's economy, except in so far as it enhances
their profit, nor the loyalty and allegiance which the national owes to the land. These limitations on the
qualifications of the aliens have been shown on many occasions and instances, especially in times of crisis
and emergency. We can do no better than borrow the language of Anton vs. Van Winkle, 297 F. 340, 342,
to drive home the reality and significance of the distinction between the alien and the national, thus:

. . . . It may be judicially known, however, that alien coming into this country are without the
intimate knowledge of our laws, customs, and usages that our own people have. So it is likewise
known that certain classes of aliens are of different psychology from our fellow countrymen.
Furthermore, it is natural and reasonable to suppose that the foreign born, whose allegiance is first
to their own country, and whose ideals of governmental environment and control have been
engendered and formed under entirely different regimes and political systems, have not the same
inspiration for the public weal, nor are they as well disposed toward the United States, as those
who by citizenship, are a part of the government itself. Further enlargement, is unnecessary. I
have said enough so that obviously it cannot be affirmed with absolute confidence that the
Legislature was without plausible reason for making the classification, and therefore appropriate
discriminations against aliens as it relates to the subject of legislation. . . . .

VII. The Due Process of Law Limitation.

a. Reasonability, the test of the limitation; determination by legislature decisive. —

We now come to due process as a limitation on the exercise of the police power. It has been stated by the
highest authority in the United States that:

. . . . And the guaranty of due process, as has often been held, demands only that the law shall not
be unreasonable, arbitrary or capricious, and that the means selected shall have a real and
substantial relation to the subject sought to be attained. . . . .

xxx xxx xxx

So far as the requirement of due process is concerned and in the absence of other constitutional
restriction a state is free to adopt whatever economic policy may reasonably be deemed to
promote public welfare, and to enforce that policy by legislation adapted to its purpose. The courts
are without authority either to declare such policy, or, when it is declared by the legislature, to
override it. If the laws passed are seen to have a reasonable relation to a proper legislative
purpose, and are neither arbitrary nor discriminatory, the requirements of due process are
satisfied, and judicial determination to that effect renders a court functus officio. . . . (Nebbia vs.
New York, 78 L. ed. 940, 950, 957.)

Another authority states the principle thus:

. . . . Too much significance cannot be given to the word "reasonable" in considering the scope of
the police power in a constitutional sense, for the test used to determine the constitutionality of the
means employed by the legislature is to inquire whether the restriction it imposes on rights secured
to individuals by the Bill of Rights are unreasonable, and not whether it imposes any restrictions on
such rights. . . .

xxx xxx xxx

. . . . A statute to be within this power must also be reasonable in its operation upon the persons
whom it affects, must not be for the annoyance of a particular class, and must not be unduly
oppressive. (11 Am. Jur. Sec. 302., 1:1)- 1074-1075.)

In the case of Lawton vs. Steele, 38 L. ed. 385, 388. it was also held:

. . . . To justify the state in thus interposing its authority in behalf of the public, it must appear, first,
that the interests of the public generally, as distinguished from those of a particular class, require
such interference; and second, that the means are reasonably necessary for the accomplishment
of the purpose, and not unduly oppressive upon individuals. . . .

Prata Undertaking Co. vs. State Board of Embalming, 104 ALR, 389, 395, fixes this test of constitutionality:

In determining whether a given act of the Legislature, passed in the exercise of the police power to
regulate the operation of a business, is or is not constitutional, one of the first questions to be
considered by the court is whether the power as exercised has a sufficient foundation in reason in
connection with the matter involved, or is an arbitrary, oppressive, and capricious use of that
power, without substantial relation to the health, safety, morals, comfort, and general welfare of the
public.

b. Petitioner's argument considered. —

Petitioner's main argument is that retail is a common, ordinary occupation, one of those privileges long ago
recognized as essential to the orderly pursuant of happiness by free men; that it is a gainful and honest
occupation and therefore beyond the power of the legislature to prohibit and penalized. This arguments
overlooks fact and reality and rests on an incorrect assumption and premise, i.e., that in this country where
the occupation is engaged in by petitioner, it has been so engaged by him, by the alien in an honest
creditable and unimpeachable manner, without harm or injury to the citizens and without ultimate danger to
their economic peace, tranquility and welfare. But the Legislature has found, as we have also found and
indicated, that the privilege has been so grossly abused by the alien, thru the illegitimate use of pernicious
designs and practices, that he now enjoys a monopolistic control of the occupation and threatens a deadly
stranglehold on the nation's economy endangering the national security in times of crisis and emergency.

The real question at issue, therefore, is not that posed by petitioner, which overlooks and ignores the facts
and circumstances, but this, Is the exclusion in the future of aliens from the retail trade unreasonable.
Arbitrary capricious, taking into account the illegitimate and pernicious form and manner in which the aliens
have heretofore engaged therein? As thus correctly stated the answer is clear. The law in question is
deemed absolutely necessary to bring about the desired legislative objective, i.e., to free national economy
from alien control and dominance. It is not necessarily unreasonable because it affects private rights and
privileges (11 Am. Jur. pp. 1080-1081.) The test of reasonableness of a law is the appropriateness or
adequacy under all circumstances of the means adopted to carry out its purpose into effect (Id.) Judged by
this test, disputed legislation, which is not merely reasonable but actually necessary, must be considered
not to have infringed the constitutional limitation of reasonableness.

The necessity of the law in question is explained in the explanatory note that accompanied the bill, which
later was enacted into law:

This bill proposes to regulate the retail business. Its purpose is to prevent persons who are not
citizens of the Philippines from having a strangle hold upon our economic life. If the persons who
control this vital artery of our economic life are the ones who owe no allegiance to this Republic,
who have no profound devotion to our free institutions, and who have no permanent stake in our
people's welfare, we are not really the masters of our destiny. All aspects of our life, even our
national security, will be at the mercy of other people.

In seeking to accomplish the foregoing purpose, we do not propose to deprive persons who are
not citizens of the Philippines of their means of livelihood. While this bill seeks to take away from
the hands of persons who are not citizens of the Philippines a power that can be wielded to
paralyze all aspects of our national life and endanger our national security it respects existing
rights.

The approval of this bill is necessary for our national survival.

If political independence is a legitimate aspiration of a people, then economic independence is none the
less legitimate. Freedom and liberty are not real and positive if the people are subject to the economic
control and domination of others, especially if not of their own race or country. The removal and eradication
of the shackles of foreign economic control and domination, is one of the noblest motives that a national
legislature may pursue. It is impossible to conceive that legislation that seeks to bring it about can infringe
the constitutional limitation of due process. The attainment of a legitimate aspiration of a people can never
be beyond the limits of legislative authority.

c. Law expressly held by Constitutional Convention to be within the sphere of legislative action. —

The framers of the Constitution could not have intended to impose the constitutional restrictions of due
process on the attainment of such a noble motive as freedom from economic control and domination, thru
the exercise of the police power. The fathers of the Constitution must have given to the legislature full
authority and power to enact legislation that would promote the supreme happiness of the people, their
freedom and liberty. On the precise issue now before us, they expressly made their voice clear; they
adopted a resolution expressing their belief that the legislation in question is within the scope of the
legislative power. Thus they declared the their Resolution:

That it is the sense of the Convention that the public interest requires the nationalization of retail
trade; but it abstain from approving the amendment introduced by the Delegate for Manila, Mr.
Araneta, and others on this matter because it is convinced that the National Assembly is
authorized to promulgate a law which limits to Filipino and American citizens the privilege to
engage in the retail trade. (11 Aruego, The Framing of the Philippine Constitution, quoted on
pages 66 and 67 of the Memorandum for the Petitioner.)

It would do well to refer to the nationalistic tendency manifested in various provisions of the Constitution.
Thus in the preamble, a principle objective is the conservation of the patrimony of the nation and as
corollary the provision limiting to citizens of the Philippines the exploitation, development and utilization of
its natural resources. And in Section 8 of Article XIV, it is provided that "no franchise, certificate, or any
other form of authorization for the operation of the public utility shall be granted except to citizens of the
Philippines." The nationalization of the retail trade is only a continuance of the nationalistic protective policy
laid down as a primary objective of the Constitution. Can it be said that a law imbued with the same
purpose and spirit underlying many of the provisions of the Constitution is unreasonable, invalid and
unconstitutional?

The seriousness of the Legislature's concern for the plight of the nationals as manifested in the approval of
the radical measures is, therefore, fully justified. It would have been recreant to its duties towards the
country and its people would it view the sorry plight of the nationals with the complacency and refuse or
neglect to adopt a remedy commensurate with the demands of public interest and national survival. As the
repository of the sovereign power of legislation, the Legislature was in duty bound to face the problem and
meet, through adequate measures, the danger and threat that alien domination of retail trade poses to
national economy.

d. Provisions of law not unreasonable. —

A cursory study of the provisions of the law immediately reveals how tolerant, how reasonable the
Legislature has been. The law is made prospective and recognizes the right and privilege of those already
engaged in the occupation to continue therein during the rest of their lives; and similar recognition of the
right to continue is accorded associations of aliens. The right or privilege is denied to those only upon
conviction of certain offenses. In the deliberations of the Court on this case, attention was called to the fact
that the privilege should not have been denied to children and heirs of aliens now engaged in the retail
trade. Such provision would defeat the law itself, its aims and purposes. Beside, the exercise of legislative
discretion is not subject to judicial review. It is well settled that the Court will not inquire into the motives of
the Legislature, nor pass upon general matters of legislative judgment. The Legislature is primarily the
judge of the necessity of an enactment or of any of its provisions, and every presumption is in favor of its
validity, and though the Court may hold views inconsistent with the wisdom of the law, it may not annul the
legislation if not palpably in excess of the legislative power. Furthermore, the test of the validity of a law
attacked as a violation of due process, is not its reasonableness, but its unreasonableness, and we find the
provisions are not unreasonable. These principles also answer various other arguments raised against the
law, some of which are: that the law does not promote general welfare; that thousands of aliens would be
thrown out of employment; that prices will increase because of the elimination of competition; that there is
no need for the legislation; that adequate replacement is problematical; that there may be general
breakdown; that there would be repercussions from foreigners; etc. Many of these arguments are directed
against the supposed wisdom of the law which lies solely within the legislative prerogative; they do not
import invalidity.

VIII. Alleged defect in the title of the law

A subordinate ground or reason for the alleged invalidity of the law is the claim that the title thereof is
misleading or deceptive, as it conceals the real purpose of the bill which is to nationalize the retail business
and prohibit aliens from engaging therein. The constitutional provision which is claimed to be violated in
Section 21 (1) of Article VI, which reads:

No bill which may be enacted in the law shall embrace more than one subject which shall be
expressed in the title of the bill.

What the above provision prohibits is duplicity, that is, if its title completely fails to appraise the legislators
or the public of the nature, scope and consequences of the law or its operation (I Sutherland, Statutory
Construction, Sec. 1707, p. 297.) A cursory consideration of the title and the provisions of the bill fails to
show the presence of duplicity. It is true that the term "regulate" does not and may not readily and at first
glance convey the idea of "nationalization" and "prohibition", which terms express the two main purposes
and objectives of the law. But "regulate" is a broader term than either prohibition or nationalization. Both of
these have always been included within the term regulation.

Under the title of an act to "regulate", the sale of intoxicating liquors, the Legislature may prohibit
the sale of intoxicating liquors. (Sweet vs. City of Wabash, 41 Ind., 7; quoted in page 41 of
Answer.)

Within the meaning of the Constitution requiring that the subject of every act of the Legislature
shall be stated in the tale, the title to regulate the sale of intoxicating liquors, etc." sufficiently
expresses the subject of an actprohibiting the sale of such liquors to minors and to persons in the
habit of getting intoxicated; such matters being properly included within the subject of regulating
the sale. (Williams vs. State, 48 Ind. 306, 308, quoted in p. 42 of Answer.)

The word "regulate" is of broad import, and necessarily implies some degree of restraint and
prohibition of acts usually done in connection with the thing to be regulated. While word regulate
does not ordinarily convey meaning of prohibit, there is no absolute reason why it should not have
such meaning when used in delegating police power in connection with a thing the best or only
efficacious regulation of which involves suppression. (State vs. Morton, 162 So. 718, 182 La. 887,
quoted in p. 42 of Answer.)

The general rule is for the use of general terms in the title of a bill; it has also been said that the title need
not be an index to the entire contents of the law (I Sutherland, Statutory Construction, See. 4803, p. 345.)
The above rule was followed the title of the Act in question adopted the more general term "regulate"
instead of "nationalize" or "prohibit". Furthermore, the law also contains other rules for the regulation of the
retail trade which may not be included in the terms "nationalization" or "prohibition"; so were the title
changed from "regulate" to "nationalize" or "prohibit", there would have been many provisions not falling
within the scope of the title which would have made the Act invalid. The use of the term "regulate",
therefore, is in accord with the principle governing the drafting of statutes, under which a simple or general
term should be adopted in the title, which would include all other provisions found in the body of the Act.

One purpose of the constitutional directive that the subject of a bill should be embraced in its title is to
apprise the legislators of the purposes, the nature and scope of its provisions, and prevent the enactment
into law of matters which have received the notice, action and study of the legislators or of the public. In the
case at bar it cannot be claimed that the legislators have been appraised of the nature of the law,
especially the nationalization and the prohibition provisions. The legislators took active interest in the
discussion of the law, and a great many of the persons affected by the prohibitions in the law conducted a
campaign against its approval. It cannot be claimed, therefore, that the reasons for declaring the law invalid
ever existed. The objection must therefore, be overruled.

IX. Alleged violation of international treaties and obligations

Another subordinate argument against the validity of the law is the supposed violation thereby of the
Charter of the United Nations and of the Declaration of the Human Rights adopted by the United Nations
General Assembly. We find no merit in the Nations Charter imposes no strict or legal obligations regarding
the rights and freedom of their subjects (Hans Kelsen, The Law of the United Nations, 1951 ed. pp. 29-32),
and the Declaration of Human Rights contains nothing more than a mere recommendation or a common
standard of achievement for all peoples and all nations (Id. p. 39.) That such is the import of the United
Nations Charter aid of the Declaration of Human Rights can be inferred the fact that members of the United
Nations Organizations, such as Norway and Denmark, prohibit foreigners from engaging in retail trade, and
in most nations of the world laws against foreigners engaged in domestic trade are adopted.

The Treaty of Amity between the Republic of the Philippines and the Republic of China of April 18, 1947 is
also claimed to be violated by the law in question. All that the treaty guarantees is equality of treatment to
the Chinese nationals "upon the same terms as the nationals of any other country." But the nationals of
China are not discriminating against because nationals of all other countries, except those of the United
States, who are granted special rights by the Constitution, are all prohibited from engaging in the retail
trade. But even supposing that the law infringes upon the said treaty, the treaty is always subject to
qualification or amendment by a subsequent law (U. S. vs. Thompson, 258, Fed. 257, 260), and the same
may never curtail or restrict the scope of the police power of the State (plaston vs. Pennsylvania, 58 L. ed.
539.)

X. Conclusion

Resuming what we have set forth above we hold that the disputed law was enacted to remedy a real actual
threat and danger to national economy posed by alien dominance and control of the retail business and
free citizens and country from dominance and control; that the enactment clearly falls within the scope of
the police power of the State, thru which and by which it protects its own personality and insures its security
and future; that the law does not violate the equal protection clause of the Constitution because sufficient
grounds exist for the distinction between alien and citizen in the exercise of the occupation regulated, nor
the due process of law clause, because the law is prospective in operation and recognizes the privilege of
aliens already engaged in the occupation and reasonably protects their privilege; that the wisdom and
efficacy of the law to carry out its objectives appear to us to be plainly evident — as a matter of fact it
seems not only appropriate but actually necessary — and that in any case such matter falls within the
prerogative of the Legislature, with whose power and discretion the Judicial department of the Government
may not interfere; that the provisions of the law are clearly embraced in the title, and this suffers from no
duplicity and has not misled the legislators or the segment of the population affected; and that it cannot be
said to be void for supposed conflict with treaty obligations because no treaty has actually been entered
into on the subject and the police power may not be curtailed or surrendered by any treaty or any other
conventional agreement.

Some members of the Court are of the opinion that the radical effects of the law could have been made
less harsh in its impact on the aliens. Thus it is stated that the more time should have been given in the law
for the liquidation of existing businesses when the time comes for them to close. Our legal duty, however, is
merely to determine if the law falls within the scope of legislative authority and does not transcend the
limitations of due process and equal protection guaranteed in the Constitution. Remedies against the
harshness of the law should be addressed to the Legislature; they are beyond our power and jurisdiction.

The petition is hereby denied, with costs against petitioner.

Paras, C.J., Bengzon, Reyes, A., Bautista Angelo, Concepcion, Reyes, J.B.L., Endencia and Felix,
JJ., concur.
Separate Opinions

PADILLA, J., concurring and dissenting:

I agree to the proposition, principle or rule that courts may not inquire into the wisdom of an the Act passed
by the Congress and duly approved by the President of the Republic. But the rule does not preclude courts
from inquiring and determining whether the Act offends against a provision or provisions of the Constitution.
I am satisfied that the Act assailed as violative of the due process of law and the equal protection of the
laws clauses of the Constitution does not infringe upon them, insofar as it affects associations, partnership
or corporations, the capital of which is not wholly owned by the citizens of the Philippines, and aliens, who
are not and have not been engaged in the retail business. I am, however, unable to persuade myself that it
does not violate said clauses insofar as the Act applies to associations and partnerships referred to in the
Act and to aliens, who are and have heretofore been engaged in said business. When they did engage in
the retail business there was no prohibition on or against them to engage in it. They assumed and believed
in good faith they were entitled to engaged in the business. The Act allows aliens to continue in business
until their death or voluntary retirement from the business or forfeiture of their license; and corporations,
associations or partnership, the capital of which is not wholly owned by the citizens of the Philippines to
continue in the business for a period of ten years from the date of the approval of the Act (19 June 1954) or
until the expiry of term of the existence of the association or partnership or corporation, whichever event
comes first. The prohibition on corporations, the capital of which is not wholly owned by citizens of the
Philippines, to engage in the retail business for a period of more than ten years from the date of the
approval of the Act or beyond the term of their corporate existence, whichever event comes first, is valid
and lawful, because the continuance of the existence of such corporations is subject to whatever the
Congress may impose reasonably upon them by subsequent legislation.1 But the prohibition to engage in
the retail business by associations and partnerships, the capital of which is not wholly owned by citizen of
the Philippines, after ten years from the date of the approval of the Act, even before the end of the term of
their existence as agreed upon by the associates and partners, and by alien heirs to whom the retail
business is transmitted by the death of an alien engaged in the business, or by his executor or
administrator, amounts to a deprivation of their property without due process of law. To my mind, the ten-
year period from the date of the approval of the Act or until the expiration of the term of the existence of the
association and partnership, whichever event comes first, and the six-month period granted to alien heirs of
a deceased alien, his executor or administrator, to liquidate the business, do not cure the defect of the law,
because the effect of the prohibition is to compel them to sell or dispose of their business. The price
obtainable at such forced sale of the business would be inadequate to reimburse and compensate the
associates or partners of the associations or partnership, and the alien heirs of a deceased alien, engaged
in the retail business for the capital invested in it. The stock of merchandise bought and sold at retail does
not alone constitute the business. The goodwill that the association, partnership and the alien had built up
during a long period of effort, patience and perseverance forms part of such business. The constitutional
provisions that no person shall be deprived of his property without due process of law 2 and that no person
shall be denied the equal protection of the laws3 would have no meaning as applied to associations or
partnership and alien heirs of an alien engaged in the retail business if they were to be compelled to sell or
dispose of their business within ten years from the date of the approval of the Act and before the end of the
term of the existence of the associations and partnership as agreed upon by the associations and partners
and within six months after the death of their predecessor-in-interest.

The authors of the Constitution were vigilant, careful and zealous in the safeguard of the ownership of
private agricultural lands which together with the lands of the public domain constitute the priceless
patrimony and mainstay of the nation; yet, they did not deem it wise and prudent to deprive aliens and their
heirs of such lands.4

For these reasons, I am of the opinion that section 1 of the Act, insofar as it compels associations and
partnership referred to therein to wind up their retail business within ten years from the date of the approval
of the Act even before the expiry of the term of their existence as agreed upon by the associates and
partners and section 3 of the Act, insofar as it compels the aliens engaged in the retail business in his
lifetime his executor or administrator, to liquidate the business, are invalid, for they violate the due process
of law and the equal protection of the laws clauses of the Constitution.

Footnotes
1
Section 76, Act No. 1459..
2
Section 1 (1), Article III, of the Constitution..
3
Ibid.
4
Section 5, Article XIII, of the Constitution.