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.
Section 391 of the Revised Ordinances of the city of Manila reads:jgc:chanrobles.com.ph
"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 virtua1aw library
Section 930 of the Revised Ordinances provides:jgc:chanrobles.com.ph
"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."cralaw virtua1aw library
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:chanrobles.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."cralaw virtua1aw library
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:jgc:chanrobles.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."cralaw virtua1aw library
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:jgc:chanrobles.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 virtua1aw library
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."cralaw virtua1aw library
These are the provisions relied upon by the respondent company to sustain the order of the Board. Counsel say in their brief:jgc:chanrobles.com.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 virtua1aw library
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."cralaw virtua1aw library
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.
, Torres, Johnson and Araullo, JJ.
, dissenting:chanrob1es virtual 1aw library
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.