EN BANC
[G.R. No. 45519. April 26, 1939. ]
RUFINA SALAO and Luclo LUCAS, Plaintiffs-Appellants, v. TEOFILO C. SANTOS, municipal president of Malabon, Rizal, and ELIGIO GOZON, intervenor, Defendants-Appellees.
Arsenio Santos for Appellants.
D. Fernandez Lavadia and Deogracias J. Puyat for Appellees.
SYLLABUS
1. MUNICIPAL ORDINANCES; RETROACTIVE EFFECT. — 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.
2. NUISANCES KINDS OF. — 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.
3. ID.; SMOKED FISH FACTORY. — Appellants’ smoked fish factory is not a nuisance per se. It is a legitimate industry. If it be, in fact, an nuisance due to the manner of its operation, then it would be merely a nuisance per accidens. (Iloilo Ice and Cold Storage Co. v. Municipal Council of Iloilo, 24 Phil., 471; Monteverde v. Generoso, 52 Phil., 123, 127.) Consequently, the order of the municipal president and those of the health authorities issued with a view to the summary abatement of what they have concluded, by their own findings, as a nuisance, are null and void there having been no hearing in court to that effect.
2. NUISANCES KINDS OF. — 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.
3. ID.; SMOKED FISH FACTORY. — Appellants’ smoked fish factory is not a nuisance per se. It is a legitimate industry. If it be, in fact, an nuisance due to the manner of its operation, then it would be merely a nuisance per accidens. (Iloilo Ice and Cold Storage Co. v. Municipal Council of Iloilo, 24 Phil., 471; Monteverde v. Generoso, 52 Phil., 123, 127.) Consequently, the order of the municipal president and those of the health authorities issued with a view to the summary abatement of what they have concluded, by their own findings, as a nuisance, are null and void there having been no hearing in court to that effect.
D E C I S I O N
MORAN, J.:
The present action was instituted by plaintiffs Rufina Salao and Lucio Lucas, now appellants, to restrain the defendant, Teofilo C. Santos, as municipal president of Malabon, Rizal, from enforcing compliance with his letter of October 22, 1935, wherein said plaintiffs were directed to observe the requirements of ordinance No. 23, series of 1929, of said municipality, on the matter of the operation of their smoked fish factory (umbuyan). The ordinance reads in part as follows:jgc:chanrobles.com.ph
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