POLICE POWER

BAR Q’S

1. Congress passes a law prohibiting television stations from airing any-

commercial advertisement which promotes tobacco or in any way
glamorizes the consumption of tobacco products.

This legislation was passed in response to findings by the Department of

Health about the alarming rise in lung diseases in the country. The World
Health organization has also reported that U.S. tobacco companies have
shifted marketing efforts to the Third World due to dwindling sales in the
health conscious American market.

Cowboy Levy's, a jeans company, recently released an advertisement

featuring model Richard Burgos wearing Levy’s jackets and jeans and
holding a pack of Marlboro cigarettes. The Asian Broadcasting Network
(ABN), a privately owned television station, refuses to air the advertisement
in compliance with the law. Regardless of your answers above, decide the
constitutionality of the law in question. (1992 Bar Question)

SUGGESTED ANSWER:

The law is constitutional. It is a valid exercise of police power, because smoking is

harmful to health. In Posadas de Puerto Rico Associates vs. Tourism Company of
Puerto Rico, 478 U.S. 328, it was ruled that a law prohibiting certain types of
advertisements is valid if it was adopted in the interest of the health, safety, and welfare
of the people. In Capital Broadcasting Company vs. Mitchell, 333 F Supp 582, a law
making it unlawful to advertise cigarettes on any medium of electronic communication
was upheld. The United States Supreme Court summarily sustained this ruling in
Capital Broadcasting Company vs. Acting Attorney General, 405 U.S. 1000. The law in
question was enacted on the basis of the legislative finding that there is a need to
protect public health, because smoking causes lung diseases. Cowboy Levy’s has not
overthrown this finding.

2. Undaunted by his three failures in the National Medical Admission Test

(NMAT), Cruz applied to take it again but he was refused because of an
order of the Department of Education, Culture and Sports (DECS)
disallowing flunkers from taking the test a fourth time. Cruz filed suit
assailing this rule raising the constitutional grounds of accessible quality
education, academic freedom and equal protection. The government
opposes this, upholding the constitutionality of the rule on the ground of
exercise of police power. Decide the case discussing the grounds raised.
(5%) (2000)
SUGGESTED ANSWER:

As held in Department of Education, Culture and Sports v. San Diego, 180 SCRA 533
(1989), the rule is a valid exercise of police power to ensure that those admitted to the
medical profession are qualified. The arguments of Cruz are not meritorious. The right
to quality education and academic freedom are not absolute. Under Section 5(3), Article
XIV of the Constitution, the right to choose a profession is subject to fair, reasonable
and equitable admission and academic requirements. The rule does not violate equal
protection. There is a substantial distinction between medical students and other
students. Unlike other professions, the medical profession directly affects the lives of
the people.

3. As a reaction to the rice shortage and the dearth of mining engineers.

Congress passed a law requiring graduates of public science high schools
henceforth to take up agriculture or mining engineers as their college
course. Several students protested, invoking their freedom to choose their
profession. Is the law constitutional? (6%) (2008 Bar Question)

SUGGESTED ANSWER:

Yes, the law is constitutional; it is a valid exercise of the State’s police power. Police
power concerns government enactments which precisely interfere with personal liberty
or property in order to promote the general welfare or the common good. In this case, it
may be said that the interests of the public generally, as distinguished from those of a
particular class, require the exercise of the police power, and that the means employed
are reasonably necessary for the accomplishment of the purpose and not unduly
oppressive upon individuals.

It cannot be denied that a rice shortage and a dearth of mining engineers are valid
concerns that affect the common good and must be addressed by the State. Since the
law is limited to public science high schools, it is within the police power of the state to
require the graduates whose education it has subsidized to take up agriculture or mining
engineering. The law provides for a lawful method geared towards a lawful objective,
and as such may be considered to be a reasonable exercise of the State’s police
power.

ALTERNATIVE ANSWER:

The law is unconstitutional. It violates the right granted by Section 5(3), Article XIV of
the Constitution to the high school graduates to select their professions or courses of
study. This provision authorizes the State to impose fair, reasonable, and equitable
requirements for admission to the professions or courses of study selected by the
students. It does not authorize the State to select for them the professions or courses of
study they will pursue.
 4. To address the pervasive problem of gambling, Congress is considering
the following options: (1) prohibit all forms of gambling; (2) allow gambling
only on Sundays; (3) allow gambling only in government-owned casinos;
and (4) remove all prohibitions against gambling but impose a tax
equivalent to 30% on all winnings. If Congress chooses the first option and
passes the corresponding law absolutely prohibiting all forms of gambling,
can the law be validly attacked on the ground that it is an invalid exercise
of police power? Explain your answer. (2%) (2009 Bar Question)

SUGGESTED ANSWER:
The law absolutely prohibiting all forms of gambling is a valid exercise of police power,
because it is an evil that undermines the social, moral and economic growth of the
nation (People v. Punto, 68 Phil. [1939]).

5. The Metropolitan Manila Development Authority is authorized to confiscate

a driver's' license in the enforcement of traffic regulations. (0.5%) (2010 Bar
Question)

SUGGESTED ANSWER:

The statement that the Metropolitan Manila Development Authority is authorized to

confiscate a driver's license in the enforcement of traffic regulations is false. Since
Republic Act No. 7924 does not grant the Metropolitan Manila Development Authority
the authority to enact ordinances, the grant to it by Section 5(f) of Republic Act No. 7924
of the power to confiscate drivers' licenses without the need of any other law is an
unauthorized exercise of police power. (Metropolitan Manila Development Authority v.
Garin, 456 SCRA 176 [2005].)

6. If Congress chooses the last option and passes the corresponding law
imposing a 30% tax on all winnings and prizes won from gambling, would
the law comply with the constitutional limitations on the exercise of the
power of taxation? Explain your answer. (2%) (2009 Bar Question)

SUGGESTED ANSWER:

A tax of 30% on winnings from gambling does not violate due process as to the
reasonableness of the rate of the tax imposed. Taxes on non-useful enterprises may be
increased to restrain the number of persons who might otherwise engage in it (Ermita-
Malate Hotel and Motel Operators Association, Inc. v. City Mayor of Manila, 20 SCRA
849 [1967]). Taxes may be imposed for the attainment of the objective of police power
(Lutz v. Araneta, 98 Phil. 148 [1955]).
 7. The National Building Code and its implementing rules provide, inter alia,
that operators of shopping centers and malls should provide parking and
loading spaces, in accordance with a prescribed ratio. The Solicitor
General, heeding the call of the public for the provision of free parking
spaces in malls, filed a case to compel said business concerns to
discontinue their practice of collecting parking fees. The mall owners and
operators oppose, saying that this is an invalid taking of their property,
thus a violation of due process. The Solicitor General justifies it, however,
claiming that it is a valid exercise of police power. Could the mall owners
and operators be validly compelled to provide free parking to their
customers? (2014 BAR)

Answer:
No, the mall owners and operators cannot be validly compelled to provide free parking
to their customers, because requiring them to provide free parking space to their
customers is beyond the scope of police powers. It unreasonably restricts the right to
use property for business purposes and amounts to confiscation of property (Office of
the Solicitor General v. Ayala Land, Inc., 600 SCRA 617).

8. Pedro bought a parcel of land from Smart Corporation, a realty firm

engaged in developing and selling lots to the public. One of the restrictions
in the deed of sale which was annotated in the title is that the lot shall be
used by the buyer exclusively for residential purposes. A main highway
having been constructed across the subdivision, the area became
commercial in nature. The municipality later passed a zoning ordinance
declaring the area as a commercial bank building on his lot. Smart
Corporation went to court to stop the construction as violative of the
building restrictions imposed by it. The corporation contends that the
zoning ordinance cannot nullify the contractual obligation assumed by the
buyer. Decide the case. (1989 Bar Question)

SUGGESTED ANSWER:

The case must be dismissed. As held in Ortigas and Company, Limited Partnership vs.
Feati Bank and Trust Company, 94 SCRA 533, such a restriction in the contract cannot
prevail over the zoning ordinance, because the enactment of the ordinance is a valid
exercise of police power. It is hazardous to health and comfort to use the lot for
residential purposes, since a highway crosses the subdivision and the area has become
commercial.

9. The Municipality of Binangonan, Rizal, passed a resolution authorizing the

operation of an open garbage dumpsite in a 9- hectare land in the Reyes
Estate within the Municipality’s territorial limits. Some concerned residents
of Binangonan filed a complaint with the Laguna Lake Development
Authority (LLDA) to stop the operation of the dumpsite due to its harmful
effects on the health of the residents. The LLDA conducted an on-site
 investigation, monitoring, testing and water sampling and found that the
dumpsite would contaminate Laguna de Bay and the surrounding areas of
the Municipality. The LLDA also discovered that no environmental
clearance was secured by the Municipality from the Department of
Environment and Natural Resources (DENR) and the LLDA as required by
law. The LLDA therefore issued to the Binangonan municipal government a
cease and desist order to stop the operation of the dumpsite. The
Municipality of Binangonan filed a case to annul the order issued by the
LLDA.

A. Can the Municipality of Binangonan invoke police power to prevent its

residents and the LLDA from interfering with the operation of the dumpsite by the
Municipality? Explain. (1995 Bar Question)

B. Can the LLDA justify its order by asserting that the health of the residents will
be adversely affected. Explain. (1995 Bar Question)

SUGGESTED ANSWER:

A. No, the Municipality of Binangonan cannot invoke its police power. According to
Laguna Lake Development Authority vs. Court of Appeals. 231 SCRA 292. Under
Republic Act No. 4850, the Laguna Lake Development Authority is mandated to
promote the development of the Laguna Lake area, including the surrounding Province
of Rizal, with due regard to the prevention of pollution. The Laguna Lake Development
Authority is mandated to pass upon and approve or disapprove all projects proposed by
local government offices within the region.

B. Yes, the Laguna Lake Development Authority can justify its order. Since it has been
authorized by Executive Order No. 927 to make orders requiring the discontinuance of
pollution, its power to issue the order can be inferred from this. Otherwise, it will be a
toothless agency. Moreover, the Laguna Lake Development Authority is specifically
authorized under its Charter to issue cease and desist orders.

10. In the deeds of sale to, and in the land titles of homeowners of a residential
subdivision in Pasig City, there are restrictions annotated therein to the
effect that only residential houses or structures may be built or
constructed on the lots. However, the City Council of Pasig enacted an
ordinance amending the existing zoning ordinance by changing the zone
classification in that place from purely residential to commercial.

"A", a lot owner, sold his lot to a banking firm and the latter started
constructing a commercial building on the lot to house a bank inside the
subdivision. The subdivision owner and the homeowners’ association filed
a case in court to stop the construction of the building for banking
business purposes and to respect the restrictions embodied in the deed of
sale by the subdivision developer to the lot owners, as well as the
 annotation in the titles. If you were the judge, how would you resolve the
case? (5%) (2001 Bar Question)

SUGGESTED ANSWER:

If I were the judge, I would dismiss the case. As held in Ortigas and Company Limited
Partnership vs. Feati Bank and Trust Company, 94 SCRA 633 (1979), the zoning
ordinance is a valid exercise of police power and prevails over the contractual
stipulation restricting the use of the lot to residential purposes.

A. Can a Barangay Assembly exercise any police power? (2003 Bar Question)
B. Can the Liga ng mga Barangay exercise legislative powers? (2003 Bar
Question)

SUGGESTED ANSWER:

A. No, the Barangay Assembly cannot exercise any police power. Under Section 398 of
the Local Government Code, it can only recommend to the Sangguniang Barangay the
adoption of measures for the welfare of the barangay and decide on the adoption of an
initiative.

B. The Liga ng Mga Barangay cannot exercise legislative powers. As stated in Bito-
Onon Fernandez. 350 SCRA 732 [2001], it is not a local government unit and its
primary purpose is to determine representation of the liga in the sanggunians; to
ventilate, articulate, and crystallize issues affecting barangay government
administration; and to secure solutions for them through proper and legal means.

11. The City of San Rafael passed an ordinance authorizing the City Mayor,
assisted by the police, to remove all advertising signs displayed or
exposed to public view in the main city street, for being offensive to sight
or otherwise a nuisance. AM, whose advertising agency owns and rents out
many of the billboards ordered removed by the City Mayor, claims that the
City should pay for the destroyed billboards at their current market value
since the City has appropriated them for the public purpose of city
beautification. The Mayor refuses to pay, so AM is suing the City and the
Mayor for damages arising from the taking of his properly without due
process nor just compensation.

Will AM’s suit prosper? Reason briefly. (5%) (2004 Bar Question)

SUGGESTED ANSWER:

The suit of AM will not prosper. The removal of the billboards is not an exercise of the
power of eminent domain but of police power (Churchill v. Rafferty, 32 Phil. 580
11915D• The abatement of a nuisance in the exercise of police power does not
constitute taking of property and does not entitle the owner of the property involved to
compensation. (Association of Small Landowners in the Philippines, Inc. v. Secretary of
Agrarian Reform, 175 SCRA 343 [1989]).

SUGGESTED ANSWER:

The removal of the billboards for the purpose of beautification permanently deprived AM
of the right to use his property and amounts to its taking. Consequently, he should be
paid just compensation. (People v. Fajardo, 104 Phil. 443 [1958]).

12. The Sangguniang Panlungsod of Pasay City passed an ordinance requiring

all disco pub owners to have all their hospitality girls tested for the AIDS
virus. Both disco pub owners and the hospitality girls assailed the validity
of the ordinance for being violative of their constitutional rights to privacy
and to freely choose a calling or business. Is the ordinance valid? Explain.
(5%) (2010 Bar Question)

SUGGESTED ANSWER:

The ordinance is a valid exercise of police power. The right to privacy yields to certain
paramount rights of the public and defers to the exercise of police power. The ordinance
is not prohibiting the disco pub owners and the hospitality girls from pursuing their
calling or business but is merely regulating it. (Social Justice Society v. Dangerous
Drugs Board, 570 SCRA 410 [2008].) The ordinance is a valid exercise of police power,
because its purpose is to safeguard public health . (Beltran vs. Secretary of Health, 476
SCRA 168 [2005].)

13. ABC operates an industrial waste processing plant within Laoag City.
Occasionally, whenever fluid substances are released through a nearby
creek, obnoxious odor is emitted causing dizziness among residents in
Barangay La Paz. On complaint of the Punong Barangay, the City Mayor II
wrote ABC demanding that it abate the nuisance. This was ignored. An
invitation to attend a hearing called by the Sangguniang Panlungsod was
also declined by the president of ABC. The city government thereupon
issued a cease and desist order to stop the operations of the plant,
prompting ABC to file a petition for injunction before the Regional Trial
.Court, arguing that the city government did not have any power to abate
the alleged nuisance. Decide with reasons. (3%) (2010 Bar Question)

SUGGESTED ANSWER:

The city government has no power to stop tile operations of the plant. Since its
operations is not a nuisance per se, the city government cannot abate it extra judicially.
A suit must be filed in court. (AC Enterprises, Inc. v. Frabelle Properties Corporation,
506 SCRA 625 [2006].)