This  is  an action  brought by the plaintiffs to prohibit the governor and provincial board of the Province of Cavita from tearing down  and destroying a bamboo fence which the plaintiffs had built across an alleged callejon in  the barrio of San Rafael, municipality of  Cavite,  Province of Cavite.   The plaintiffs claimed to be the owners of the land across which the small street in question extended and that the persons living in that  vicinity had been  permitted to pass over the locality as  a means of convenience and  not of right.   The persons who were permitted thus to pass over  said  land  claimed, on the other hand,  and in that claim were supported by the governor and provincial board of the province, that the way in question was a public street owned by the municipality by virtue of its  having been used as a public highway for  more than fifty years.  The plaintiffs,  having reached  a  point  where they no longer desired to permit the passage  of individuals over the land in question, built a fence across  the same,  inclosing that portion of it which lay within their property.   The governor of the Province  of Cavite, under a resolution  of the provincial board empowering and directing him to do so, tore down this fence and opened the way for the passage of the public. The  plaintiffs built the fence a second time and, in order to prevent the governor from consummating his threat of again tearing it down, commenced this action of prohibition, obtaining a preliminary  injunction in aid  of the  suit.   The provincial  board seemed  to base its  claim of right to open the alleged street not only upon the ground that  it was a public highway, but also  upon the ground that  the closing of  the same  in the  manner  in which it was done by the plaintiffs stopped or impeded  the flow of surface waters to the bay, and retained them within  the limits of the  village  to become stagnant and  foul, to  the prejudice of the health of the community.

It is immaterial, in the decision  of this action, who owns the land in question.   The result is the same whether it is a public highway or not.  The real question is whether or not the provincial board of the Province of Cavite  had any authority or jurisdiction to order torn down the fence erected by the plaintiffs,  even  conceding  the way to  be a public highway.   A careful examination of the statute which gives functions and powers to the provincial governor and board discloses clearly that such governor and board had no authority to pass the resolution which they did pass or to commit the act which they  did commit,  even conceding that the way in question was  a public highway.   Neither did they or either of them have the power or authority to close the alleged street  for reasons of public health.  The only provisions of law respecting the powers of provincial boards which relate to  public highways or public  health are the following:

"It shall be the duty of the provincial board -

"To order, in  its discretion, the construction, repair, or maintenance of roads, bridges, and ferries within the portions of the  province fixed as within its control on the recommendation  of the district engineer, and to approve or reject contracts for such construction  and repair, and the construction and repair of provincial buildings.

"To agree upon  the recommendation of the district engineer with the provincial board of an adjoining province on the terms within the limitations of law, upon  which roads forming the  boundary  between  the  two provinces,  and bridges and ferries crossing streams forming such boundary shall be constructed,  repaired, or  maintained  under the joint control of the two provincial governments.

"To appropriate,  in its discretion, moneys from any of its funds in excess of all just-debts and liabilities falling due within the fiscal year, except those funds the use of  which is otherwise specifically  fixed by  law,  for loans to municipalities of  the province, under such  conditions as to the use of the funds loaned  and as to the repayment of the loans with interest at three per centum per annum, as may be fixed by the provincial board: Provided, That the  entire indebtedness of any municipality  to which a loan is made shall  not, inclusive  of such loan, exceed five per centum of the assessed valuation of the property  in said municipality.

"To provide, in its discretion, for the payment from provincial  funds of their regular compensation during the period of their disability, not exceeding ninety days, to unclassified employees of the provincial government, including laborers, when said employees or laborers are injured  in the clear  line of duty; the necessary expenses of medical attendance, transportation, and hospital fees for such injured employees or laborers, and in case of their death from said injuries, their reasonable burial expenses may likewise, in the discretion of the provincial board, be paid from provincial funds.

"To appropriate moneys accruing to the provincial road and bridge fund for the purpose of providing and maintaining wharves, piers,  and docks in accordance  with plans and specifications furnished by the Bureau of Navigation, and removing obstructions to navigation within the limits of the province.

"To appropriate moneys from  any of its funds, except those the use of which is otherwise specifically fixed by law, for other purposes having in view the general welfare of the province and its inhabitants: Provided, That no appropriation made pursuant to the provisions of this subsection shall be valid  pr take effect until it shall have been approved  by the Governor-General, or unless and until thirty days after the receipt of due notice thereof  by  the Governor-General shall have passed without the disapproval of the Governor- General having been given.

"Provincial boards are hereby authorized to appropriate provincial funds for the payment, in whole or in  part, for buildings or personal property  destroyed  by order of the Director of Health, a district health officer, or a municipal health board: Provided, however, That nothing herein contained shall  be  construed as affecting the  right of such health officers or boards to require the owners of buildings to keep  the  same in sanitary condition, or to abate the same as  nuisances  if not  so kept, without compensation; the purpose of this section being to authorize the payment provided for above in such cases as may seem to the provincial boards equitable and just.

"In case the provincial board shall determine that a road or bridge of general importance to the province within the inhabited portion of  a municipality  is in need of repair, and  shall notify the municipal council of the municipality in which such road or bridge is situated  of the necessity of such  repairs, and the municipal council shall fail for thirty  days  to proceed to  make the  repairs required, the provincial board is hereby authorized to make such repairs out of provincial funds  and to assess the whole or any equitable part of  the expense thus  incurred against the delinquent municipality, taking into consideration in such assessment the ability of the municipality to bear the whole or any portion of the expense, and the utility of the road or bridge for the general interests of the province: Provided, That the authority granted in this and the preceding section shall not apply to  purely local roads or bridges.  It shall be the duty of the municipal treasurer to  pay to the provincial  treasurer such sum or sums as may be assessed against the municipality by virtue of the provisions of this section."   (Sec. 13, Act No. 83,  as amended.)

There appears nothing in these provisions' which confers the powers necessary to warrant the action of the provincial board in the  case at bar.  On the other hand,  it is evident from the statutes that the municipal council has exclusive jurisdiction over streets  found  within the limits  of the municipality  which they represent and said council is empowered to regulate the construction, care and use of streets, sidewalks, wharves  and piers in the municipality; to prevent and remove obstacles and encroachments upon the same and declare and abate nuisances; and  to care for the health of the community.

The following are the provisions of law giving the municipal council authority to act in the case at bar:

"The municipal council shall -

"Regulate the construction, care, and use  of streets, sidewalks, wharves and piers  in the municipality,  subject  to the provisions of section nine hundred and sixty-nine hereof; prevent and remove obstacles and encroachments on the same; and declare and abate nuisances.

"Construct and keep in repair bridges and viaducts, and regulate the use of the same.

"Prohibit the throwing or depositing of filth, garbage,  or other offensive matter in any street, alley,  park, or public square; provide for the suitable  collection  and  disposition of such  matter and for cleaning and keeping  clean the streets, alleys, parks, and other public places of the municipality.

"Regulate the keeping and use of animals, in so far as the same affect the public health and the health of domestic animals.

"Require any land or building which is in an unsanitary condition  to be cleansed at  the  expense  of the owner or tenant,  and,  upon failure  to comply with  such an order, have the work done and assess the  expense upon the land or buildings.

"Construct and keep in repair public drains, sewers, and cesspools, and regulate the construction and use of private water-closets, privies, sewers, drains, and cesspools.

"Prohibit the. burial  of  the dead within the centers of population of the municipality and provide for their burial in such proper place and in such manner as the council may determine, subject to the provisions of chapter eighty-nine hereof.

"Establish or authorize  the establishment of slaughter-houses and markets, and inspect and regulate the use of the same.

"Provide for and regulate  the inspection of meat, fruits, poultry, milk, fish, vegetables, and all other articles of food.

"Adopt such other  measures to prevent the introduction and spread of disease as may, from time to time, be deemed desirable or necessary.

"Establish, regulate,  and maintain a police department: Provided, That the Governor-General is hereby authorized to appoint, with the advice and  consent of the Philippine Commission, a chief of police  for the municipality of Cavite, whose duty it shall be to take  charge and have control of the regularly appointed police force of Cavite, to maintain peace and order within  the limits  of that municipality, and to enforce  the lawful acts and  ordinances of  the municipal council.   He shall receive a  salary of not more than  four thousand  pesos per annum,  payable monthly by  the  provincial treasurer of Cavite out of insular funds.  There shall likewise be appointed in a similar manner an assistant chief of police for the municipality of  Cavite, whose duties shall be similar to those of the chief of police, and who shall, in the absence or incapacity of the latter, act in his stead. The assistant chief of police shall receive compensation at the  rate  of  not more  than three thousand  two  hundred pesos per annum, payable monthly by the provincial treasurer of Cavite out of insular funds.

"Make  such ordinances and regulations not repugnant to law as may be necessary to carry into effect and discharge the  powers and duties conferred by this title and such as shall seem necessary and proper to provide for the health and safety, promote the prosperity, improve the morals, peace, good order,  comfort, and convenience of the municipality and the inhabitants thereof,  and for the protection of property  therein; and enforce  obedience  thereto  with such lawful fines or penalties as the municipal council may prescribe  under the provisions of paragraph   (66)  of this section."   (Sec. 39, Act No. 82, as amended.)

The only provisions of law giving the provincial board control over the municipal council are the following:

"Whenever the council  is desirous of securing a legal opinion upon questions arising in relation to the constitution or attributes of the municipal government, it shall frame the questions in writing and submit them to the provincial fiscal for  decision.  Each act, resolution,  and  ordinance of the council shall be numbered consecutively throughout the calendar year; each executive order shall  also be consecutively  numbered.  The municipal secretary  shall, within thirty-six  hours  after any session  of  the  council  or  the issuance of an executive order,  forward a correct copy of each act,  resolution, and ordinance passed  thereat, and of every executive order, properly numbered, to the provincial board.  The  board shall  promptly pass upon the legality of the  same,  entering  its  action upon the  minutes and advising the proper  municipal secretary  of  such  action. The  secretary shall thereupon notify the  council,  and that body shall note the receipt of notification upon its  minutes. The  provincial board  shall approve all  acts, ordinances, resolutions, and orders  which are within the  powers conferred upon the council  or president making  the same and declare null and  void such as are not within said powers. If the board shall be in doubt as to the legality of any such act, ordinance, resolution,  or  order it  shall declare the same suspended  and refer the question to  the fiscal for his opinion.  Such opinion  shall be  given promptly,  and upon its  receipt  theboard shall  take action thereon in accordance  with law and immediately advise  the municipal secretary thereof.  The municipal secretary shall also, within the thirty-six hours aforesaid, forward to  the provincial treasurer a copy of each act, resolution, or ordinance authorizing or necessitating the collection of municipal revenues. After the same have been  passed upon  by the provincial board, all  acts, ordinances, resolutions,  and orders shall be  filed with the  provincial  governor, who  shall keep a complete file  of  the same  conveniently  arranged in consecutive order by municipalities for reference, which shall be  open for public inspection,  and in case the municipal secretary neglects  or omits to forward any  such  he shall immediately demand a  copy.  Repeated negligence in forwarding acts, resolutions, or ordinances shall be cause for suspension and removal.  Any attempt to enforce such act, ordinance,   resolution, or executive  order, after the  disapproval or suspension  thereof shall be brought to the attention of the municipal council, shall be sufficient ground for the dismissal of the officer or officers attempting to enforce the same.  Should the council or the president be dissatisfied  with  the decision of the  provincial  board,  an appeal may be taken by it or him to the Governor-General, who shall decide the same question which was presented to the provincial board and either affirm or reverse the decision of the provincial board.  If the decision of the pro- vincial board is affirmed, the act, ordinance,  resolution, or executive order involved shall be null  and void.  If, however,  he shall reverse the decision of the provincial board, then and in that case notice of his decision shall be given to the provincial board and to the council of the municipality appealing, and upon receipt of notice  by the appellant, the act, ordinance, resolution,  or executive order shall  be revived and come into force again.  Pending the decision on appeal  from a decision of the  provincial board  annulling any act, ordinance, resolution, or executive order, the same shall have no force and  effect.  Nothing in this  section shall be construed to deprive  any judicial tribunal of power to hold void for want of statutory authority any act, ordinance, or resolution of a municipal council or executive order of  a municipal president the  validity  of which shall be involved in any cause arising before such tribunal, without respect to the decision of the executive authorities,"   (Sec. 41, Act No. 82, as amended; see also Acts Nos. 469, 521, 667, 344, 1511.)

It thus appears that the removal of obstructions and the destruction of nuisances on highways, within the municipality of  Cavite, are matters solely for  the municipal  council of that municipality and not for the provincial governor or provincial board or both.

The question of whether  or not the  alleged street  is a public  highway or is owned by the plaintiffs in this case we do not decide.   We have no right to decide it in the  action at bar.

It is  therefore the judgment of this court that the governor and provincial  board of the province  of Cavite be forever prohibited from tearing down  or destroying the fence in question.   It is so ordered.

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