A salty nuisance

Rufi built a patis factory on a land known for its fish port, and had continually operated and managed the same. After decades in operation, a municipality ordinance was passed requiring all businesses in the area to comply with sanitary and health requirements.

Eli, whose house is situated near the smoked fish factory, denounced the said factory as a nuisance. He then lodged a complaint with the appropriate agency seeking relief against its continuance. An investigation was then conducted by the health authorities, and as a result, it was found that Rufi’s smoked fish factory was being operated not in accordance with the requirements of said ordinance.

The government agency and the district health office took steps to enforce the ordinance and to that effect, the president of the sanitary division of the municipality sent Rufi a letter requesting compliance. Rufi refused to comply arguing that her business is not within the purview of the ordinance. The municipal mayor then wrote Rufi a letter and threatened to close the factory if she continuously fail to heed the demand to comply.

Q: Can the municipal ordinance be retroactively implemented?

A: It is not disputed that Rufi’s smoked fish factory was established long before the enactment of the ordinance in question. 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. There is nothing in the ordinance showing the intention to give it a retrospective effect.

Q: What are the kinds of nuisance?

A: 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.

Q: What kind of nuisance is Rufi’s smoked fish factory?

A: Her smoked fish factory is not a nuisance per se. It is a legitimate industry. If it be, in fact, a nuisance due to the manner of its operation, then it would be merely a nuisance per accidens. 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 the effect. (Source: Salao vs. Santos,G.R. No. L-45519, April 26, 1939)

The author is Dean of College of Law at the Lyceum of the Philippines University and member of the Board of Trustees of Philippine Association of Law Schools