EN BANC

[G.R. No. 11639. January 18, 1917. ]

THE CITY OF MANILA, Petitioner, v. THE MANILA ELECTRIC

RAILROAD AND LIGHT COMPANY and THE BOARD OF PUBLIC
UTILITY COMMISSIONERS, Respondents.

City Attorney Escaler for Petitioner.

Lawrence & Ross for Manila Electric R. R. & L. Co.

No appearance for the other Respondent.

SYLLABUS

1. BOARD OF PUBLIC UTILITY COMMISSIONERS; LIMITATION OF

POWERS. — The powers of the Board of Public Utility Commissioners
are limited to the supervision and control of the activities of public
utilities only in so far as they affect the persons who operate them and
those who use them. They do not extend to or influence those
activities in so far as they affect other persons — that is, those who
are neither operators nor users.

2. ID.; ID.; PUBLIC AND PRIVATE ASPECTS OF PUBLIC UTILITIES. —

Every public utility has two aspects, its public and, if we may use
language liberally, its private. In its public aspect, it touches its
patrons and its employees; in its private, it touches all other members
of the community in which it operates.

3. ID.; ID. — Over the public utility in its public aspect the Board of
Public Utility Commissioners has complete control under Act No. 2307.
Over the public utility in its private aspect it has, under that Act, no
control at all.

4. ID.; ID. — It is the duty of every public utility to obey all laws of the
state; and, while the board may compel it to observe some and
prevent it from violating others, there are some laws which the board
can neither compel it to respect nor prevent it from disobeying. Among
the latter is the law embodied in ordinance No. 391, which is a criminal
statute. The board has jurisdiction only as to that class of laws which
 refers to the duties of a public utility as such, but not as to that class
of laws which refer to its duties as a corporation.

5. ID., ID.; EFFECT OF PASSAGE OF ACT NO. 2307. — Act No. 2307
does not ipso facto repeal every statute of every municipality of the
state which deals with the criminal acts of public utilities committed
within its confines.

DECISION

MORELAND, J. :

Section 391 of the Revised Ordinances of the city of Manila reads: jg c:chan roble s.com.p h

"It shall be unlawful for any street car to be drawn at a greater speed
than twelve miles per hour within the corporate limits of said city; but
on the streets within the Walled City, the Escolta and Calles Rosario,
Binondo, and Nozaleda the maximum speed shall be six miles per
hour."cralaw vi rt ua1aw lib rary

Section 930 of the Revised Ordinances provides: jg c:chan roble s.com.p h

"Whenever by this ordinance, or by any ordinance hereafter enacted,

or by any regulation which has been made and approved by the
Municipal Board or which hereafter may be made and approved by said
Board, the performance of any act, or the omission to perform any act
or duty, is declared to be a breach of ordinance or regulation, or if any
person shall violate any provision of this or other ordinance or
regulation or accuse the same to be done, and no specific penalty is
prescribed therefor, the same shall constitute a misdemeanor, and any
person convicted thereof shall be punished by a fine of not more than
two hundred pesos or by imprisonment for not more than six months,
or by both fine and imprisonment, in the discretion of the court, for
each offense." c ralaw vi rtua1aw l ib rary

These two sections — they have been in force many years — describe
a misdemeanor and prescribe its punishment.
On June 26, 1915, the vice-president of the Manila Electric Railroad
and Light Company filed a petition with the Public Utility Board,
praying that the company be allowed to increase the speed of its cars
running along the streets of the city of Manila, the provisions of section
391 of the Revised Ordinances of said city to the contrary
notwithstanding.

The petition was based upon the alleged fact that on certain occasions
cars were delayed behind their schedule and were unable to make up
the time lost without increasing their speed.

The company’s petition states: jgc:chan rob les.com. ph

"It sometimes happens, for causes beyond the control of the company,
that abnormal delays put a car behind its schedule. An unusual
congestion of traffic in a narrow street, the breakdown of a vehicle on
the track, or one of the many other extraordinarily incidents that will
suggest themselves to the Board, may so delay a car that it cannot
recover its schedule position without temporarily exceeding the speed
limit. The result is not only the delay of that particular car, and the
bunching of cars on that particular line, but also the loss of transfer
connections, or the corresponding delay of connecting cars on their
lines, with a more or less general dislocation of the entire system. If it
were not for the ordinance restriction, a car slightly delayed might
often make up its lost time on wide, safe streets, where a speed
exceeding twelve miles per hour would not be imprudent. Compliance
with the ordinance presents the dilemma of either suffering frequent
disturbances of the schedule or adjusting the schedule, by a reduction
of the average speed of cars, to allow the occasional abnormal
conditions. Either solution means unsatisfactory service." c ralaw virtua1aw l ibra ry

The opinion of the Attorney-General was requested as to whether or

not the provisions of Act No. 2307, as amended, operated to take
away from the city of Manila the power of regulating the speed of
vehicles conferred by its charter. The Attorney-General, in his opinion
dated September 2, 1915, stated, in general terms, that Act No. 2307,
as amended, repealed such part of the charter of the city of Manila as
confers upon the city power to regulate the speed of street cars within
the city limits.

Relying upon this opinion, the Board of Public Utility Commissioners,

on September 7, 1915, entertained the petition.

The city of Manila filed objection to the petition upon the ground that
the Board of Public Utility Commissioners has no jurisdiction to
regulate the speed of cars in the city of Manila, and that said power is
vested in the Municipal Board. This objection was overruled by the
Board, and a decision was rendered allowing the Manila Electric
Railroad and Light Company to operate its cars at a speed not to
exceed 20 miles per hour on Calle Padre Burgos from Plaza Lawton to
Calle San Luis and Calle M. H. del Pilar; Calle Carolina, from Calle
Remedios to M. H. del Pilar; M. H. del Pilar, from Cortabitarte to the
city limits; Luneta pier line, from the Luneta to the end of the
quartermaster bodegas; Calle Azcarraga, from Santo Cristo to Calle
Alix; and Rizal Avenue, from Calle Azcarraga to the Cementerio del
Norte.

To this decision the city of Manila duly filed its exception, and now
appeals to the Supreme Court, alleging that the Board of Public Utility
Commissioners erred in not holding: jg c:chan robl es.com.ph

"1. That the Public Utility Board has no jurisdiction to regulate street
traffic in the city of Manila, or to regulate the speed at which trolley
cars should be run on the same.

"2. That the power to regulate the streets and the speed at which cars
may be run has been specifically granted to the city, and it has never
been withdrawn.

"3. That it was not intended by Act No. 2307, or any subsequent Acts,
to ever vest the power to regulate the streets of the city in the Public
Utility Board, whereas the contrary intention is apparent from the
Public Utility Act and its amendments.

"4. That the order of the Public Utility Board is not supported by the
evidence adduced in the trial of this case." c ralaw virtua1aw l ibra ry

The respondent street car company gives in its brief three reasons for
its desire that the order of the Board of Public Utility Commissioners be
sustained. It says:jg c:chan robles. com.ph

"This respondent recognizes the right of the Philippine Government to

regulate reasonably the speed of respondent’s cars in the streets of
Manila, and to exercise that power by means of the Municipal Board of
the Board of Public Utility Commissioners, or any other proper agency,
as it sees fit. Ordinarily the company would maintain a strict neutrality
in a controversy between these two estimable Boards as to which shall
administer the government’s admitted authority; but, in this instance,
we feel impelled to support the position of the respondent board, first,
of course, because we believe it to be correct; secondly, because a
division or confusion of supervision would be vexatious; and, thirdly,
because the challenged order of the respondent board enables this
company to improve its service to the public." cralaw vi rt ua1aw lib rary

The charter of the city of Manila (Act No. 183), in 1901, authorized the
city to regulate the use of streets, and, particularly, "to regulate the
speed of . . . vehicles, cars, and locomotives within the limits of the
city." In 1903, the franchise for the respondent’s electric street railway
provided: "The maximum rate of speed at which the grantee may
operate its cars shall be fixed by the municipal authorities" (Act No.
848). There can be no doubt that, until the establishment of the Board
of Public Utility Commissioners, the city of Manila had the regulatory
power for which it now contends. But it is equally true that the city
held this power at the pleasure of the Legislature.

Act No. 2307, creating a Board of Public Utility Commissioners, does

not specifically repeal any provision of the Manila charter nor of Act
No. 484; but it does, in general terms, repeal "any Act or part of Act
inconsistent with the provisions of this Act." It follows that, if Act No.
2307 grants to the Board of Public Utility Commissioners the right to
regulate the speed of street cars, it thereby repeals the corresponding
right previously vested in the city of Manila. Our inquiry is therefore
narrowed to an examination of Act No. 2307, for the purpose of
determining whether it authorizes the Board of Public Utility
Commissioners to regulate the speed of street cars. By definition,
street railways are "public utilities" (section 14).

Section 14 of Act No. 2307 provides that —

"The Board shall have general supervision and regulation of,

jurisdiction and control over, all public utilities, and also over their
property, property rights, equipment, facilities, and franchises, so far
as may be necessary for the purpose of carrying out the provisions of
this Act." cralaw virtua1aw library

Section 16-(b) confers upon the Board "power, after hearing, upon
notice, by order in writing, to require every public utility as herein
defined . . . to furnish safe, adequate, and proper service and to keep
and maintain its property and equipment in such condition as to
enable it to do so;" While section 17-(c) declares "nor shall any public
utility as herein defined provide or maintain any service that is unsafe,
improper or inadequate, or withhold or refuse any service which can
reasonably be demanded and furnished when ordered by said Board."
libra ry
c ralaw virtua1aw

These are the provisions relied upon by the respondent company to

sustain the order of the Board. Counsel say in their brief: jgc:cha nrob les.co m.ph

"Without resorting to the general powers of section 14, we rely upon

the board’s authority to require ’adequate service,’ corresponding to
the duty of the company to provide and maintain proper and adequate
service and ’any service which can reasonably be demanded and
furnished when ordered by said Board.’ Is the speed of cars a matter
of proper and adequate service of a street railway company? Does
proper and adequate service require that schedules be maintained and
connections regularly made at transfer points? The questions would
seem to answer themselves, and, at the same time, to dispose of this
case. The primary function of a street railway is to transport
passengers; the obvious factor of its service are safety, speed,
comfort, frequency, regularly. Surely it is a strained construction of the
law that concedes to the board the right to require of a street railway
adequate service in all respects except celerity and regularity of
transportation." cralaw vi rtua 1aw lib rary

We are of the opinion that respondent does not correctly define or

state the powers of the Board of Public Utility Commissioners. It has
failed to make a very necessary distinction — one, in our judgment,
vital to a correct decision of the question presented. The powers of the
Board are limited to a supervision and control of the activities of public
utilities only in so far as they affect the persons who operate them and
those who use them. They do not extend to or influence those
activities in so far as they affect other persons — that is, those who
are neither operator or uses. They do not reach the man crossing the
street car tracks, or using the streets, or the residents of streets
occupied by street car tracks, or touch the thousand and one
reciprocal relations which exist between members of the same
community. Every public utility has two aspects, its public and, if we
may use language liberally, its private. In its public aspects it touches
its patrons and its employees. In its private, it touches all other
members of the community in which it operates. In the latter aspect it
is subject to all those duties and responsibilities under which every
citizen lies. It must conduct itself so as not to interfere unduly with the
rights of others. It must comply with the laws relating to public health
and public safety. It must not commit crimes. It must be a law-abiding
member of the community.

Over the public utility in its first aspect the Board of Public Utility
Commission has complete control under Act No. 2307. Over the public
utility in its second aspect it has, under the Act, no control at all. While
it may fix the rates which a public utility shall charge, compel it to
render adequate service to the public, regulate the treatment of its
employees, and require that they shall be protected in life and limb,
the Board cannot define or determine the attitude of the public utility
toward persons not its patron or employees. While it may control the
public utility in the performance of the duties prescribed by its charter
or franchise or those naturally imposed upon it by virtue of the fact
that it is a public utility, it cannot compel it to obey any other law of
the state or punish if for an infraction thereof. On the other hand,
neither can the Board prevent a public utility from obeying any law of
the state. It is the duty of every public utility to obey all laws of the
state; and, while the Board may compel it to observe some and
prevent it from violating others, there are some laws which the Board
can neither compel it to respect nor prevent it from disobeying. Among
the latter is the law embodied in ordinance No. 391. It is a criminal
statute. It was designed to protect the person and property of
individuals using the public thoroughfares against acts of another
which, in the judgment of the lawmakers, would make that usage
unsafe. The performance of the prohibited act is a misdemeanor and is
punished by fine or imprisonment, or both. Such a statute was not
intended to compel the public utility to perform those duties and live
up to those obligation which are imposed upon it by virtue of its being
a public utility; but was, rather, designed to require it to recognize and
satisfy the obligations which the law imposes upon it as a legal person,
an entity. In this respect the law is outside the jurisdiction of the
Board, as this class of laws does not refer to its duties as a public
utility, but as a corporation.

Nor do we believe that Act No. 2307 was intended to repeal any of the
criminal laws of the Archipelago or of any subdivision thereof. We
cannot believe that the passage of an Act creating and granting the
usual powers to a Board of Public Utility Commissioners, ipso facto
repeals every statute of every municipality of the state which deals
with the criminal acts of public utilities committed within its confines.
On the fact of it such a theory would be difficult to sustain. But an
examination of it shows still more difficulty. What would take the place
of the statute repealed? Under Act No. 2307, nothing. While the Board
has the power to fine it is not a power in any sense like that exercised
under criminal laws. It is simply the ability to impose a fine for every
day the utility refuses to comply with its order. It is not a fine imposed
in a criminal action; and there is no power to imprison. It may well be
doubted if the fine which the Board is authorized to administer could
be imposed in case the public utility should exceed in a particular
instance the limit of speed mentioned in the order.

Moreover, if Act No. 2307 repeals the criminal statutes of

municipalities which affect public utilities, why does it not repeal those
of the state also? Both classes of statute spring from the same source,
the legislature of the state; and one trenches no more upon the
performance by the public utility of its duties as such than the other.
Regulation of the speed no more affects its duties as a common carrier
than does the prevention of frauds and swindles against its
stockholders, its patrons, and the public. It seems to us that, if it be
admitted that Act No. 2307 repeals the criminal statutes of
municipalities affecting public utilities, it must also repeal the criminal
statutes of the state having the same effect.

There is another consideration. Act No. 2307 was passed and became
effective December 19, 1913. The order of the Board in this case was
made on the 18th of February, 1916. What law, if any, protected the
inhabitants of the city of Manila against reckless driving by
respondents motormen between those two dates? And, if the public
utility itself had not made an application to the Board to fix the rate of
speed, who can say how long that interregnum would have continued?
Is it claimed, in reply, that the ordinance remained in force until the
Board acted? If so, then Act No. 2307 did not repeal the ordinance. It
simply authorized the Board to repeal it. The ordinance was good until
the Board acted. In that case, of course, the power to pass such an
ordinance was not taken away from the municipal council; in other
words, the provision of the charter conveying the power questioned
was not repealed; and as a necessary consequence, the council and
the board have concurrent authority to regulate the speed of the
company’s cars. But where two entities have concurrent jurisdiction
over the same subject-matter the one that first takes jurisdiction and
acts in the per mises is preferred; and its jurisdiction cannot be
divested or its act destroyed by any subsequent action of the other. It
follows that the city having acted first, neither its authority nor its act
can be disturbed by the Board of Public Utility Commissioners. We thus
see where the argument that the ordinance was in force until the
Board acted would lead us. We must go back to the proposition that, if
Act no. 2307 did anything at all, it repealed the ordnance and deprived
the municipal council of power to act in the premises; and that,
accordingly, the city of Manila was absolutely without protection
against the reckless driving of the company’s motormen from
December 19, 1913, to February 18, 1916; and the protection afforded
by the order of the Board is of very uncertain value. Can we believe
that the Legislature intended such a result when it passed Act No.
2307?

There is still another way of looking at this question; and that is from
the standpoint of local self-government. In his instruction to the first
Philippine Commission, President McKinley said;

"In the distribution of powers among the governments organized by

the Commission, the presumption is always to be in favor of the
smaller subdivision, so that all the powers which can properly be
exercised by the municipal government shall be vested in that
government, and all the powers of a more general character which can
be exercised by the departmental government shall be vested in that
government, and so that in the governmental system which is the
result of the process the Central Government of the Islands, following
the example of the distribution of the powers between the States and
the National Government of the United States, shall have no direct
administration except of matters of purely general concern, and shall
have only such supervision and control over local governments as may
be necessary to secure and enforce faithful and efficient administration
by local officers."
c ralaw vi rtua 1aw lib rary
The right of local self-government is not to be easily taken away or
restricted. While the Legislature has the power to deprive all
municipalities of the right to govern themselves in their purely local
affairs, such right will not be held to be abridged except upon clear
expression of the legislative will. There appears no such expression in
Act No. 2307.

Lastly, it is doubtful if Ordinance No. 391 applies to or affects a public

utility. It is apparently directed to the motorman — the person
manipulating the car — for whose acts the public utility is not
criminally responsible (U. S. v. Madrigal, 27 Phil. Rep., 347; West
Coast Life Ins. Co. v. Hurd, 27 Phil. Rep., 401). If the ordinance does
not affect public utility directly, it is difficult to see how the Board of
Public Utility Commissioners, under the statute as it stands, can take
such jurisdiction of the subject-matter here in question as to deprive
the municipal authorities of the power to punish an individual for
committing a crime within its jurisdiction.

The order of the Board of Public Utility Commissioners here in question

is hereby vacated and set aside. So ordered.

Arellano, C.J., Torres, Johnson and Araullo, JJ., concur.

Separate Opinions

CARSON, J., dissenting: chan rob1e s virtual 1aw l ibra ry

I dissent.

Counsel for the railroad company and the city attorney inform us that
diligent search has failed to develop judicial precedents upon the
precise questions involved in this appeal.

But unchallenged precedent for the action of the Board is to be found

in the proceedings of the Board of Public Utilities Commissioners of
New Jersey, from which State our statute creating a Board of Public
Utility Commissioners was borrowed (Reports of the Board of Public
Utility Commissioners of the State of New Jersey, Vol. 1, pp. 106, 113,
115), also in the action of the Wisconsin Railroad Commission in a case
reported in Public Utilities Reports, Annotated, 1915 ed., 898, 899,
901; and our attention has not been directed to any ruling to the
contrary by any of the numerous boards and commissions exercising
authority substantially similar to that conferred upon the Philippine
Board of Public Utility Commissioners.

I refrain from extended discussion of the grounds of my dissent in

order to avoid delay in the publication of the decision of the Court, and
the settlement of the questions at issue between the city of Manila and
the Board of Public Utility Commissioners.