Salao vs. Santos

Municipal ordinances are presumed to have only prospective operation unless the intent to give them retrospective effect is expressly declared or necessarily implied. A lawful industry that may become a nuisance by the manner of its operation is a nuisance per accidens and cannot be abated summarily; its existence must first be determined by a court after a hearing.

Plaintiffs Rufina Salao and Lucio Lucas operated a smoked fish factory (umbuyan) in the barrio of Baritan, Malabon, Rizal. The factory had been established years before the municipal council enacted Ordinance No. 23, series of 1929. That ordinance prohibited the use of combustible materials for industrial operations in any building not constructed of strong materials with galvanized iron or tile roofing, required metal or galvanized iron chimneys to protect adjacent buildings from smoke and sparks, and imposed minimum distances between certain kinds of factories and neighboring houses. The health authorities later determined that plaintiffs’ factory did not conform to the ordinance, and defendant Teofilo C. Santos, as municipal president, eventually directed plaintiffs to comply under threat of license revocation.

• Longstanding factory: Long before 1929, plaintiffs Salao and Lucas had established a smoked fish factory (umbuyan) in Baritan, Malabon, Rizal, and had continuously operated it ever since.

• Ordinance No. 23 of 1929: The municipality enacted an ordinance that, among other things, required factories using combustible materials to be housed in buildings of strong construction with galvanized iron or tile roofs, to install metal or galvanized iron chimneys of adequate height so that smoke and sparks would not damage adjacent buildings or create a fire hazard, and to maintain a distance of 20 or 40 meters from surrounding houses depending on the nature of the manufacturing activity.

• Criminal prosecution and acquittal: On October 30, 1933, plaintiff Lucio Lucas was prosecuted before the justice of the peace court of Malabon for non-compliance with the ordinance and was acquitted.

• Neighbor’s complaint and health investigation: Intervenor Eligio Gozon, whose house stood near the factory, denounced it as a nuisance to the Bureau of Health. Health authorities investigated and found that the factory was not being operated in accordance with the ordinance.

• Administrative enforcement attempts: The Bureau of Health and the district health office sought to enforce the ordinance. The president of the sanitary division wrote to one of the plaintiffs requesting compliance. Plaintiffs refused, citing the justice of the peace court’s acquittal.

• Escalation to the municipal president and the Department of the Interior: The health authorities requested action from the municipal president, who initially failed or omitted to act. The Department of the Interior, upon application of Gozon, intervened, and after exchanges with the provincial governor, required the municipal president to enforce the health authorities’ order. Consequently, on October 22, 1935, the municipal president sent plaintiffs a letter directing them to comply with the 1929 ordinance within 30 days or face revocation of their license.

• Amendatory Ordinance No. 10 of 1935: On October 10, 1935, the municipal council enacted Ordinance No. 10, which amended Ordinance No. 23 by adding a new article stating that the ordinance “shall be effective only with regard to those that will be established after the approval hereof, and shall not be applicable to those already operating at the time of the approval of this ordinance.” The amendatory ordinance was made retroactive to the date of approval of the 1929 ordinance. It was duly approved by the provincial board.

• Present action: Faced with the president’s enforcement order, plaintiffs filed the instant action for injunction to enjoin the municipal president from carrying out his directive. The trial court dismissed the complaint.

• Prospective application of Ordinance No. 23: Plaintiffs maintained that the 1929 ordinance governed only establishments to be built in the future and did not extend to their pre-existing factory. They pointed to the language of the original ordinance, which referred to “fabrica o negocio que se ha de levantar,” and to the 1935 amendatory ordinance that expressly exempted already-operating factories.

• Effect of acquittal: Plaintiffs argued that the acquittal of Lucio Lucas in the criminal case for violation of the same ordinance constituted a judicial determination that the ordinance did not cover their factory.

• Invalid summary abatement: They contended that the municipal president’s order of October 22, 1935, demanding compliance on pain of license revocation, amounted to a summary abatement of their business without the hearing required by law for a nuisance per accidens.

• Trial court’s error: Plaintiffs asserted on appeal that the trial court erred in dismissing their complaint for injunction given the clear non-retroactivity of the ordinance and the absence of a judicial finding that the factory was a nuisance.

• Police power and public safety: The municipal president and intervenor argued that Ordinance No. 23 was a valid exercise of the municipality’s police power, enacted to protect public health and safety, and applied uniformly to all industrial establishments regardless of when they were built.

• Nature of the factory as a nuisance per se: Respondents maintained that the smoked fish factory, due to its manner of operation and fire hazard, was a nuisance per se that posed a direct and immediate threat to neighboring houses, thereby justifying summary abatement without prior judicial hearing.

• Invalidity of the amendatory ordinance: The intervenor alleged that Ordinance No. 10 of 1935 was enacted by the municipal council at the behest of the municipal president with the improper motive of protecting plaintiffs and frustrating the order of the health authorities, and was therefore void.

• Prospective Operation: Whether Ordinance No. 23, series of 1929, applied to a smoked fish factory that had been established and continuously operated before its enactment.

• Nuisance and Summary Abatement: Whether the factory constituted a nuisance per se that could be summarily abated without a judicial hearing; and, consequently, whether the municipal president’s enforcement order was valid.

• Prospective Operation: Ordinance No. 23 was construed to operate prospectively only. Municipal ordinances, like statutes, are presumptively prospective; retroactivity requires express declaration or necessary implication. The 1929 ordinance used language indicative of future establishments (“fabrica o negocio que se ha de levantar”) and contained no clause applying it to existing factories. Any doubt was resolved by the subsequent amendatory ordinance, which explicitly declared that the ordinance “shall not be applicable to those already operating at the time of the approval of this ordinance.” This amendatory ordinance, having been enacted by the municipal council and approved by the provincial board, expressed the true intent of the law-making body and negated any retroactive application. The personal motive of the municipal president, even if shown, could not be imputed to the municipal council. The factory, therefore, lay outside the ordinance’s coverage.

• Nuisance and Summary Abatement: The smoked fish factory was not a nuisance per se. It was a legitimate industry. At most, depending on the manner of its operation, it could amount to a nuisance per accidens. A nuisance per se is one that under all circumstances directly menaces public health or safety and may be abated summarily under the law of necessity. A nuisance per accidens is one whose existence depends on surrounding conditions and circumstances; because its character is a question of fact, it cannot be abated without a prior hearing before a tribunal authorized to decide whether the thing does in law constitute a nuisance. The administrative orders of the municipal president and health authorities, issued on the basis of their own findings that the factory was a nuisance, constituted a summary abatement without a court hearing. Those orders were therefore null and void.

• Prospective construction of municipal ordinances — Municipal ordinances are construed to have only prospective operation; an intention to give them retrospective effect must be expressly declared or necessarily implied from the language used. Applied here to hold that Ordinance No. 23 did not cover factories operating before 1929.

• Nuisance per se and nuisance per accidens — A nuisance per se is recognized as a nuisance under any and all circumstances because it constitutes a direct menace to public health or safety; it may be abated summarily under the undefined law of necessity. A nuisance per accidens, by contrast, depends upon particular conditions and circumstances, and its existence is a question of fact. It cannot be abated without a due hearing before a tribunal authorized to decide whether the thing does in law constitute a nuisance. Applied: A smoked fish factory is a legitimate industry and, if a nuisance at all, is merely a nuisance per accidens; the municipal president’s order was a summary abatement rendered without a court hearing and was therefore invalid.

• “Municipal ordinances, like all statutes, are to be construed as having only prospective operation unless the intention to give them retrospective effect is expressly declared or is necessarily implied from the language used.” — This passage states the default rule of statutory construction that controlled the first issue.

• “Moreover, nuisances are of two kinds: nuisance per se and nuisance per accidens. The first is recognized as a nuisance under any and all circumstances, because it constitutes a direct menace to public health or safety, and, for that reason, may be abated summarily under the undefined law of necessity. The second is that which depends upon certain conditions and circumstances, and its existence being a question of fact, it cannot be abated without due hearing thereon in a tribunal authorized to decide whether such a thing does in law constitute a nuisance.” — This is the definitive statement of the two classes of nuisance and the procedural consequence for each, providing the ratio for invalidating the administrative orders.

• Iloilo Ice and Cold Storage Co. vs. Municipal Council of Iloilo, 24 Phil., 471 — Cited as controlling authority for the distinction between nuisance per se and nuisance per accidens, and for the rule that a nuisance per accidens cannot be abated without a judicial hearing.

• Monteverde vs. Generoso, 52 Phil., 123, 127 — Cited alongside Iloilo Ice to reaffirm that a legitimate business operated in a manner alleged to constitute a nuisance is at most a nuisance per accidens, requiring a court determination before abatement.

• Ordinance No. 23, series of 1929, Municipality of Malabon, Rizal — The regulatory ordinance imposing structural, chimney, and distance requirements on certain factories. Construed to have only prospective effect.

• Ordinance No. 10, series of 1935, Municipality of Malabon, Rizal — The amendatory ordinance expressly exempting factories already operating at the time of the original ordinance’s approval, and given retroactive effect to the date of the 1929 ordinance. Used to confirm the original intent of prospective application.

Avanceña, C. J., Villa-Real, Diaz, Laurel, and Concepcion, JJ., concurred.