EN BANC

[G.R. No. L-1800. January 27, 1948.]

CIPRIANO P. PRIMICIAS, General Campaign Manager of Coalesced

Minority Parties,Petitioner, v. VALERIANO E. FUGOSO, Mayor of City
of Manila, Respondent.

Ramon Diokno for Petitioner.

City Fiscal Jose P. Bengzon and Assistant City Fiscal Julio Villamor
for Respondent.

SYLLABUS

1. CONSTITUTIONAL LAW; RIGHT TO FREEDOM OF SPEECH AND TO

PEACEFULLY ASSEMBLE AND PETITION GOVERNMENT FOR REDRESS OF
GRIEVANCES, NOT ABSOLUTE; REGULATION UNDER POLICE POWER;
POLICE POWER, BY WHOM EXERCISED. — The right to freedom of speech,
and to peacefully assemble and petition the government for redress of
grievances, are fundamental personal rights of the people recognized and
guaranteed by the constitutions of democratic countries. But it is a settled
principle growing out of the nature of well-ordered civil societies that the
exercise of those rights is not absolute for it may be so regulated that it shall
not be injurious to the equal enjoyment of others having equal rights, nor
injurious to the rights of the community or society. The power to regulate
the exercise of such and other constitutional rights is termed the sovereign
"police power," which is the power to prescribe regulations, to promote the
health, morals, peace, education, good order or safety, and general welfare
of the people. This sovereign police power is exercised by the government
through its legislative branch by the enactment of laws regulating those and
other constitutional and civil rights, and it may be delegated to political
subdivisions, such as towns, municipalities and cities by authorizing their
legislative bodies called municipal and city councils to enact ordinances for
the purpose.

2. ID.; ID.; ID.; ID.; SCOPE OF POLICE POWER DELEGATED TO MUNICIPAL

BOARD OF MANILA. — The Philippine Legislature has delegated the exercise
of the police power to the Municipal Board of the City of Manila, which
according to section 2439 of the Administrative Code is the legislative body
of the City. Section 2444 of the same Code grants the Municipal Board,
among others, the following legislative powers, to wit:" (p) to provide for the
prohibition and suppression of riots, affrays, disturbances, and disorderly
assemblies, (u) to regulate the use of streets, avenues, . . . parks,
 cemeteries and other public places" and "for the abatement of nuisances in
the same," and" (ee) to enact all ordinances it may deem necessary and
proper for sanitation and safety, the furtherance of prosperity and the
promotion of morality, peace, good order, comfort, convenience, and general
welfare of the city and its inhabitants."cralaw virtua1aw library

3. ID.; ID.; ID.; ID.; ID.; MEETING AND ASSEMBLY IN STREET OR PUBLIC
PLACE IN MANILA, REGULATION OF. — As there is no express and separate
provision in the Revised Ordinance of the City of Manila regulating the
holding of public meeting or assembly at any streets or public places, the
provision of section 1119 of said Ordinance to the effect, among others,
"that the holding of any parade or procession in any streets or public places
is prohibited unless a permit therefor is first secured from the Mayor, who
shall, on every such occasion, determine or specify the streets or public
places for the formation, route, and dismissal of such parade or procession,"
may be applied by analogy to meeting and assembly in any street or public
places.

4. ID.; ID.; ID.; ID.; ID.; ID.; POWER OF MAYOR TO GRANT PERMIT FOR
HOLDING ASSEMBLY OR MEETING, PARADE OR PROCESSION, SCOPE OF. —
Section 1119 of the Revised Ordinance of the City of Manila is susceptible of
two constructions: one is that the Mayor of the City of Manila is vested with
unregulated discretion to grant or refuse to grant permit for the holding of a
lawful assembly or meeting, parade, or procession in the streets and other
public places of the City of Manila; and the other is that the applicant has
the right to a permit which shall be granted by the Mayor, subject only to
the latter’s reasonable discretion to determine or specify the streets or public
places to be used for the purpose, with a view to prevent confusion by
overlapping, to secure convenient use of the streets and public places by
others, and to provide adequate and proper policing to minimize the risk of
disorder. This court has adopted the second construction, namely, that said
provision does not confer upon the Mayor the power to refuse to grant the
permit, but only the discretion, in issuing the permit, to determine or specify
the streets or public places where the parade or procession may pass or the
meeting may be held. The ordinance cannot be construed as conferring upon
the Mayor power to grant or refuse to grant the permit, which would be
tantamount to authorizing him to prohibit the use of the streets and other
public places for holding of meetings, parades or processions, because such
a construction would make the ordinance invalid and void or violative of the
constitutional limitations. As the Municipal Board is empowered only to
regulate the use of streets, parks and other public places, and the word
"regulate," as used in section 2444 of the Revised Administrative Code,
means and includes the power to control, to govern and to restrain, but can
not be construed as synonymous with "suppress" or "prohibit" (Kwong Sing
v. City of Manila, 41 Phil., 103), the Municipal Board cannot grant the Mayor
a power which it does not have. Besides, as the powers and duties of the
Mayor as the Chief Executive of the City are executive, and one of them is
"to comply with and enforce and give the necessary orders for the faithful
performance and execution of the laws and ordinances (section 2434 [b] of
the Revised Administrative Code), the legislative police power of the
Municipal Board to enact ordinances regulating reasonably the exercise of
the fundamental personal right of the citizens in the streets and other public
places, cannot be delegated to the Mayor or any other officer by conferring
upon him unregulated discretion or without laying down rules to guide and
control his action by which its impartial execution can be secured or
partiality and oppression prevented.

5. ID.; ID.; ID.; ID.; ID.; ID.; ID.; SECTION 2434 OF ADMINISTRATIVE
CODE GRANTING MAYOR POWER TO GRANT OR REFUSE MUNICIPAL
LICENSES OR PERMITS OF ALL CLASSES, NOT APPLICABLE. — Section 2434
of the Administrative Code, a part of the Charter of the City of Manila, which
provides that the Mayor shall have the power to grant and refuse municipal
licenses or permits of all classes, cannot be cited as an authority for the
Mayor to deny the application of the petitioner, for the simple reason that
said general power is predicated upon the ordinances enacted by the
Municipal Board requiring licenses or permits to be issued by the Mayor,
such as those found in Chapters 40 to 87 of the Revised Ordinances of the
City of Manila. It is not a specific or substantive power independent from the
corresponding municipal ordinances which the Mayor, as Chief Executive of
the City, is required to enforce under the same section 2434. Moreover "one
of the settled maxims in constitutional law is that the power conferred upon
the Legislature to make laws cannot be delegated by that department to any
other body or authority," except certain powers of local government,
specially of police regulations which are conferred upon the legislative body
of a municipal corporation. Taking this into consideration, and that the police
power to regulate the use of streets and other public places has been
delegated or rather conferred by the Legislature upon the Municipal Board of
the City (section 2444 [u] of the Administrative Code), it is to be presumed
that the Legislature has not, in the same breath, conferred upon the Mayor
in section 2434 (m) the same power, specially in view of the fact that its
exercise may be in conflict with the exercise of the same power by the
Municipal Board.

6. ID.; ID.; ID.; ID.; ID.; ID.; ID.; ID.; NULLITY OF UNLIMITED POWER OF
MAYOR TO GRANT OR REFUSE PERMIT FOR USE OF STREET AND PUBLIC
PLACE FOR PROCESSIONS, PARADES OR MEETINGS. — Assuming arguendo
that the Legislature has the power to confer, and in fact has conferred, upon
the Mayor the power to grant or refuse licenses and permits of all classes,
independent from ordinances enacted by the Municipal Board on the matter,
and the provisions of section 2444 (u) of the same Code and of section 1119
of the Revised Ordinances to the contrary notwithstanding, such grant of
unregulated and unlimited power to grant or refuse a permit for the use of
streets and other public places for processions, parades, or meetings, would
be null and void, for the same reasons stated in the decisions in the cases
cited in the opinion, specially in Willis Cox v. State of New Hampshire (312
U. S., 569), wherein the question involved was also the validity of a similar
statute of New Hampshire. Because the same constitutional limitations
applicable to ordinances apply to statutes, and the same objections to a
municipal ordinance which grants unrestrained discretion upon a city officer
are applicable to a law or statute that confers unlimited power to any officer
either of the municipal or state governments. Under the democratic system
of government in the Philippines, no such unlimited power may be validly
granted to any officer of the government, except perhaps in cases of
national emergency. As stated in State ex rel. Garrabad v. Dering (84 Wis.,
585; 54 N. W., 1104) "The discretion with which the council is vested is a
legal discretion to be exercised within the limits of the law, and not a
discretion to transcend it or to confer upon any city officer an arbitrary
authority making in its exercise a petty tyrant."cralaw virtua1aw library

7. ID.; ID.; ID.; ID.; ID.; ID.; ID.; ID.; ID.; CASE AT BAR. — The reason
alleged by the respondent in his defense for refusing the permit is, "that
there is a reasonable ground to believe, basing upon previous utterances
and upon the fact that passions, specially on the part of the losing groups,
remain bitter and high, that similar speeches will be delivered tending to
undermine the faith and confidence of the people in their government, and
in the duly constituted authorities, which might threaten breaches of the
peace and a disruption of public order." As the request of the petition was
for a permit "to hold a peaceful public meeting," and there is no denial of
that fact or any doubt that it was to be a lawful assemblage, the reason
given for the refusal of the permit can not be given any consideration. It
does not make comfort and convenience in the use of streets or parks the
standard of official action. It enables the Mayor to refuse the permit on his
mere opinion that such refusal will prevent riots, disturbances or disorderly
assemblage. It can thus, as the record discloses, be made the instrument of
arbitrary suppression of free expression of views on national affairs, for the
prohibition of all speaking will undoubtedly prevent such eventualities.
(Hague v. Committee on Industrial Organization, 307 U. S., 496; 83 Law.
ed., 1423.)

DECISION
 FERIA, J.:

This is an action of mandamus instituted by the petitioner Cipriano Primicias,

a campaign manager of the Coalesced Minority Parties against Valeriano
Fugoso, as Mayor of the City of Manila, to compel the latter to issue a permit
for the holding of a public meeting at Plaza Miranda on Sunday afternoon,
November 16, 1947, for the purpose of petitioning the government for
redress to grievances on the ground that the respondent refused to grant
such permit. Due to the urgency of the case, this Court, after mature
deliberation, issued a writ of mandamus, as prayed for in the petition on
November 15, 1947, without prejudice to writing later an extended and
reasoned decision.

The right to freedom of speech, and to peacefully assemble and petition the
government for redress of grievances, are fundamental personal rights of
the people recognized and guaranteed by the constitutions of democratic
countries. But it is a settled principle growing out of the nature of well-
ordered civil societies that the exercise of those rights is not absolute for it
may be so regulated that it shall not be injurious to the equal enjoyment of
others having equal rights, nor injurious to the rights of the community or
society. The power to regulate the exercise of such and other constitutional
rights is termed the sovereign "police power," which is the power to
prescribe regulations, to promote the health, morals, peace, education, good
order or safety, and general welfare of the people. This sovereign police
power is exercised by the government through its legislative branch by the
enactment of laws regulating those and other constitutional and civil rights,
and it may be delegated to political subdivisions, such as towns,
municipalities and cities by authorizing their legislative bodies called
municipal and city councils to enact ordinances for the purpose.

The Philippine Legislature has delegated the exercise of the police power to
the Municipal Board of the City of Manila, which according to section 2439 of
the Administrative Code is the legislative body of the City. Section 2444 of
the same Code grants the Municipal Board, among others, the following
legislative powers, to wit:" (p) to provide for the prohibition and suppression
of riots, affrays, disturbances and disorderly assemblies, (u) to regulate the
use of streets, avenues, . . . parks, cemeteries and other public places" and
"for the abatement of nuisances in the same," and" (ee) to enact all
ordinances it may deem necessary and proper for sanitation and safety, the
furtherance of prosperity and the promotion of morality, peace, good order,
comfort, convenience, and general welfare of the city and its
inhabitants."cralaw virtua1aw library

Under the above delegated power, the Municipal Board of the City of Manila,
enacted sections 844 and 1119. Section 844 of the Revised Ordinances of
1927 prohibits as an offense against public peace, and section 1262 of the
same Revised Ordinance penalizes as a misdemeanor, "any act, in any public
place, meeting, or procession, tending to disturb the peace or excite a riot;
or collect with other persons in a body or crowd for any unlawful purpose; or
disturb or disquiet any congregation engaged in any lawful assembly." And
section 1119 provides the following:jgc:chanrobles.com.ph

"SEC. 1119. Free for use of public. — The streets and public places of the
city shall be kept free and clear for the use of the public, and the sidewalks
and crossings for the pedestrians, and the same shall only be used or
occupied for other purposes as provided by ordinance or regulation:
Provided, That the holding of athletic games, sports, or exercises during the
celebration of national holidays in any streets or public places of the city and
on the patron saint day of any district in question, may be permitted by
means of a permit issued by the Mayor, who shall determine the streets or
public places, or portions thereof, where such athletic games, sports, or
exercises may be held: And provided, further, That the holding of any
parade or procession in any streets or public places is prohibited unless a
permit therefor is first secured from the Mayor, who shall, on every such
occasion, determine or specify the streets or public places for the formation,
route, and dismissal of such parade or procession: And provided, finally,
That all applications to hold a parade or procession shall be submitted to the
Mayor not less than twenty-four hours prior to the holding of such parade or
procession."cralaw virtua1aw library

As there is no express and separate provision in the Revised Ordinance of

the City regulating the holding of public meeting or assembly at any street
or public places, the provisions of said section 1119 regarding the holding of
any parade or procession in any street or public places may be applied by
analogy to meeting and assembly in any street or public places.

Said provision is susceptible of two constructions: one is that the Mayor of

the City of Manila is vested with unregulated discretion to grant or refuse to
grant permit for the holding of a lawful assembly or meeting, parade, or
procession in the streets and other public places of the City of Manila; and
the other is that the applicant has the right to a permit which shall be
granted by the Mayor, subject only to the latter’s reasonable discretion to
determine or specify the streets or public places to be used for the purpose,
with a view to prevent confusion by overlapping, to secure convenient use of
the streets and public places by others, and to provide adequate and proper
policing to minimize the risk of disorder.

After a mature deliberation, we have arrived at the conclusion that we must

adopt the second construction, that is, construe the provisions of the said
ordinance to mean that it does not confer upon the Mayor the power to
refuse to grant the permit, but only the discretion, in issuing the permit, to
determine or specify the streets or public places where the parade or
procession may pass or the meeting may be held.

Our conclusion finds support in the decision in the case of Willis Cox v. State
of New Hampshire, 312 U. S., 569. In that case, the statute of New
Hampshire P. L. chap. 145, section 2, providing that "no parade or
procession upon any ground abutting thereon, shall be permitted unless a
special license therefor shall first be obtained from the selectmen of the
town or from licensing committee," was construed by the Supreme Court of
New Hampshire as not conferring upon the licensing board unfettered
discretion to refuse to grant the license, and held valid. And the Supreme
Court of the United States, in its decision (1941) penned by Chief Justice
Hughes affirming the judgment of the State Supreme Court, held that "a
statute requiring persons using the public streets for a parade or procession
to procure a special license therefor from the local authorities is not an
unconstitutional abridgment of the rights of assembly or of freedom of
speech and press, where, as the statute is construed by the state courts, the
licensing authorities are strictly limited, in the issuance of licenses, to a
consideration of the time, place, and manner of the parade or procession,
with a view to conserving the public convenience and of affording an
opportunity to provide proper policing, and are not invested with arbitrary
discretion to issue or refuse license, . . ."cralaw virtua1aw library

We cannot adopt the other alternative construction or construe the

ordinance under consideration as conferring upon the Mayor power to grant
or refuse to grant the permit, which would be tantamount to authorizing him
to prohibit the use of the streets and other public places for holding of
meetings, parades or processions, because such a construction would make
the ordinance invalid and void or violative of the constitutional limitations. As
the Municipal Board is empowered only to regulate the use of streets, parks,
and other public places, and the word "regulate," as used in section 2444 of
the Revised Administrative Code, means and includes the power to control,
to govern, and to restrain, but can not be construed as synonymous with
"suppress" or "prohibit" (Kwong Sing v. City of Manila, 41 Phil., 103), the
Municipal Board can not grant the Mayor a power which it does not have.
Besides, as the powers and duties of the Mayor as the Chief Executive of the
City are executive, and one of them is "to comply with and enforce and give
the necessary orders for the faithful performance and execution of the laws
and ordinances" (section 2434 [b] of the Revised Administrative Code), the
legislative police power of the Municipal Board to enact ordinances regulating
reasonably the exercise of the fundamental personal right of the citizens in
the streets and other public places, can not be delegated to the Mayor or
any other officer by conferring upon him unregulated discretion or without
laying down rules to guide and control his action by which its impartial
execution can be secured or partiality and oppression prevented.

In City of Chicago v. Trotter, 136 Ill., 430, it was held by the Supreme Court
of Illinois that, under Rev. St. Ill. c. 24, article 5 section 1, which empowers
city councils to regulate the use of the public streets, the council has no
power to ordain that no processions shall be allowed upon the streets until a
permit shall be obtained from the superintendent of police, leaving the
issuance of such permits to his discretion, since the powers conferred on the
council cannot be delegated by them.

The Supreme Court of Wisconsin in State ex rel. Garrabad v. Dering, 84

Wis., 585; 54 N. W., 1104, held the following:jgc:chanrobles.com.ph

"The objections urged in the case of City of Baltimore v. Radecke, 49 Md.,

217, were also, in substance, the same, for the ordinance in that case upon
its face committed to the unrestrained will of a single public officer the
power to determine the rights of parties under it, when there was nothing in
the ordinance to guide or control his action, and it was held void because ’it
lays down no rules by which its impartial execution can be secured, or
partiality and oppression prevented,’ and that ’when we remember that
action or nonaction may proceed from enmity or prejudice, from partisan
zeal or animosity, from favoritism and other improper influences and
motives easy of concealment and difficult to be detected and exposed, it
becomes unnecessary to suggest or to comment upon the injustice capable
of being wrought under cover of such a power, for that becomes apparent to
every one who gives to the subject a moment’s consideration. In fact, an
ordinance which clothes a single individual with such power hardly falls
within the domain of law, and we are constrained to pronounce it inoperative
and void.’ . . . In the exercise of the police power, the common council may,
in its discretion, regulate the exercise of such rights in a reasonable manner,
but can not suppress them, directly or indirectly, by attempting to commit
the power of doing so to the mayor or any other officer. The discretion with
which the council is vested is a legal discretion, to be exercised within the
limits of the law, and not a discretion to transcend it or to confer upon any
city officer an arbitrary authority, making him in its exercise a petty
tyrant."cralaw virtua1aw library

In re Frazee, 63 Michigan 399, 30 N. W., 72, a city ordinance providing that

"no person or persons, or associations or organizations shall march, parade,
ride, or drive, in or upon or through the public streets of the City of Grand
Rapids with musical instrument, banners, flags, . . . without having first
obtained the consent of the mayor or common council of said city;" was held
by the Supreme Court of Michigan to be unreasonable and void. Said
Supreme Court in the course of its decision held:jgc:chanrobles.com.ph

". . . We must therefore construe this charter, and the powers it assumes to
grant, so far as it is not plainly unconstitutional, as only conferring such
power over the subjects referred to as will enable the city to keep order, and
suppress mischief, in accordance with the limitations and conditions required
by the rights of the people themselves, as secured by the principles of law,
which cannot be less careful of private rights under a constitution than under
the common law.

"It is quite possible that some things have a greater tendency to produce
danger and disorder in the cities than in smaller towns or in rural places.
This may justify reasonable precautionary measures, but nothing further;
and no inference can extend beyond the fair scope of powers granted for
such a purpose, and no grant of absolute discretion to suppress lawful action
altogether can be granted at all. . . .

"It has been customary, from time immemorial, in all free countries, and in
most civilized countries, for people who are assembled for common purposes
to parade together, by day or reasonable hours at night, with banners and
other paraphernalia, and with music of various kinds. These processions for
political, religious, and social demonstrations are resorted to for the express
purpose of keeping unity of feeling and enthusiasm, and frequently to
produce some effect on the public mind by the spectacle of union and
numbers. They are a natural product and exponent of common aims, and
valuable factors in furthering them. . . . When people assemble in riotous
mobs, and move for purposes opposed to private or public security, they
become unlawful, and their members and abettors become punishable. . . .

"It is only when political, religious, social, or other demonstrations create

public disturbances, or operate as nuisance, or create or manifestly threaten
some tangible public or private or private mischief, that the law interferes.

"This by-law is unreasonable, because it suppresses what is in general

perfectly lawful, and because it leaves the power of permitting or restraining
processions, and their courses, to an unregulated official discretion, when
the whole matter, if regulated at all, must be by permanent, legal
provisions, operating generally and impartially."cralaw virtua1aw library
In Rich v. Napervill, 42 Ill., App. 222, the question was raised as to the
validity of the city ordinance which made it unlawful for any person, society
or club, or association of any kind, to parade any of the streets, with flags,
banners, or transparencies, drums, horns, or other musical instruments,
without the permission of the city council first had and obtained. The
appellants were members of the Salvation Army, and were prosecuted for a
violation of the ordinance, and the court in holding the ordinance invalid
said, "Ordinances to be valid must be reasonable; they must not be
oppressive; they must be fair and impartial; they must not be so framed as
to allow their enforcement to rest in official discretion . . . Ever since the
landing of the Pilgrims from the Mayflower the right to assemble and worship
according to the dictates of one’s conscience, and the right to parade in a
peaceable manner and for a lawful purpose, have been fostered and
regarded as among the fundamental rights of a free people. The spirit of our
free institutions allows great latitude in public parades and demonstrations
whether religious or political . . . If this ordinance is held valid, then may the
city council shut off the parades of those whose nations do not suit their
views and tastes in politics or religion, and permit like parades of those
whose notions do. When men in authority are permitted in their discretion to
exercise power so arbitrary, liberty is subverted, and the spirit of our free
institutions violated. . . . Where the granting of the permit is left to the
unregulated discretion of a small body of city eldermen, the ordinance
cannot be other than partial and discriminating in its practical operation. The
law abhors partiality and discrimination. . . ." (19 L. R. A., p. 861.)

In the case of Trujillo v. City of Walsenburg, 108 Col., 427; 118 P. [2d],
1081, the Supreme Court of Colorado, in construing the provision of section
1 of Ordinance No. 273 of the City of Walsenburg, which provides: "That it
shall be unlawful for any person or persons or association to use the street
of the City of Walsenburg, Colorado, for any parade, procession or
assemblage without first obtaining a permit from the Chief of Police of the
City of Walsenburg so to do," held the following:jgc:chanrobles.com.ph

" [1] The power of municipalities, under our state law, to regulate the use of
public streets is conceded.’35 C.S.A., chapter 163, section 10, subparagraph
7.’The privilege of a citizen of the United States to use the streets . . . may
be regulated in the interest of all; it is not absolute, but relative, and must
be exercised in subordination to the general comfort and convenience, and
in consonance with peace and good order; but it must not, in the guise of
regulation, be abridged or denied.’ Hague, Mayor, v. Committee for
Industrial Organization, 307 U.S., 496, 516; 59 S. Ct., 954, 964; 83 Law.
ed., 1423.

[2, 3] An excellent statement of the power of a municipality to impose

regulations in the use of public streets is found in the recent case of Cox v.
New Hampshire, 312 U. S., 569; 61 S. Ct., 762, 765; 85 Law. ed., 1049;
133 A.L.R., 1936, in which the following appears: ’The authority of a
municipality to impose regulations in order to assure the safety and
convenience of the people in the use of public highways has never been
regarded as inconsistent with civil liberties but rather as one of the means of
safeguarding the good order upon which they ultimately depend. The control
of travel on the streets of cities is the most familiar illustration of this
recognition of social need. Where a restriction of the use of highways in that
relation is designed to promote the public convenience in the interest of all,
it cannot be disregarded by the attempted exercise of some civil right which
in other circumstances would be entitled to protection. One would not be
justified in ignoring the familiar red traffic light because he thought it his
religious duty to disobey the municipal command or sought by that means to
direct public attention to an announcement of his opinions. As regulation of
the use of the streets for parades and processions is a traditional exercise of
control by local government, the question in a particular case is whether that
control is exerted so as not to deny or unwarrantedly abridge the right of
assembly and the opportunities for the communication of thought and the
discussion of public questions immemorially associated with resort to public
places. Lovell v. Criffin, 303 U.S., 444, 451; 58 S. Ct., 666, 668, 82 Law.
ed., 949 [953]; Hague v. Committee for Industrial Organization, 307 U.S.,
496, 515, 516; 59 S. Ct., 954, 963, 964; 83 Law. ed., 1423 [1436, 1437];
Scheneider v. State of New Jersey [Town of Irvington]; 308 U. S., 147, 160;
60 S. Ct., 146, 150; 84 Law. ed., 155 [164]; Cantwell v. Connecticut, 310
U.S., 296, 306, 307; 60 S. Ct., 900, 904; 84 Law. ed., 1213 [1219, 1220];
128 A.L.R. 1352.’

[4] Our concern here is the validity or nonvalidity of an ordinance which

leaves to the uncontrolled official discretion of the chief of police of a
municipal corporation to say who shall, and who shall not, be accorded the
privilege of parading on its public streets. No standard of regulation is even
remotely suggested. Moreover, under the ordinance as drawn, the chief of
police may for any reason which he may entertain arbitrarily deny this
privilege to any group. This is authorization of the exercise of arbitrary
power by a governmental agency which violates the Fourteenth Amendment.
People v. Harris, 104 Colo., 386, 394; 91 P. [2d], 989; 122 A.L.R. 1034.
Such an ordinance is unreasonable and void on its face. City of Chicago v.
Troter, 136 Ill., 430; 26 N. E., 359. See, also, Anderson v. City of
Wellington, 40 Kan. 173; 19 P., 719; 2 L.R.A., 110; 10 Am. St. Rep., 175;
State ex rel. v. Dering, 84 Wis., 585; 54 N. W., 1104: 19 L. R. A., 858, 36
Am. St. Rep., 948; Anderson v. Tedford, 80 Fla., 376; 85 So., 673; 10 A. L.
R., 1481; State v. Coleman, 96 Conn., 190; 113 A. 385, 387; 43 C. J., p.
419, section 549; 44 C. J., p. 1036, section 3885. . . .
"In the instant case the uncontrolled official suppression of the privilege of
using the public streets in a lawful manner clearly is apparent from the face
of the ordinance before us, and we therefore hold it null and void."cralaw
virtua1aw library

The Supreme Court of the United States in Hague v. Committee for

Industrial Organization, 307 U. S., 496, 515, 516; 83 Law. ed., 1423,
declared that a municipal ordinance requiring the obtaining of a permit for a
public assembly in or upon the public streets, highways, public parks, or
public buildings of the city and authorizing the director of public safety, for
the purpose of preventing riots, disturbances, or disorderly assemblage, to
refuse to issue a permit when after investigation of all the facts and
circumstances pertinent to the application he believes it to be proper to
refuse to issue a permit, is not a valid exercise of the police power. Said
Court in the course of its opinion in support of the conclusion
said:jgc:chanrobles.com.ph

". . . Wherever the title of streets and parks may rest, they have
immemorially been held in trust for the use of the public and, time out of
mind, have been used for purposes of assembly, communicating thoughts
between citizens, and discussing public questions. Such use of the streets
and public places has, from ancient times, been a part of the privileges,
immunities, rights, and liberties of citizens. The privilege of a citizen of the
United States to use the streets and parks for communication of views on
national questions may be regulated in the interest of all; it is not absolute,
but relative, and must be exercised in subordination to the general comfort
and convenience, and in consonance with peace and good order; but it must
not, in the guise of regulation, be abridged or denied.

"We think the court below was right in holding the ordinance quoted in Note
1 void upon its face. It does not make comfort or convenience in the use of
streets or parks the standard of official action. It enables the Director of
Safety to refuse a permit on his mere opinion that such refusal will prevent
’riots, disturbances or disorderly assemblage.’ It can thus, as the record
discloses, be made the instrument of arbitrary suppression of free
expression of views on national affairs for the prohibition of all speaking will
undoubtedly ’prevent’ such eventualities. But uncontrolled official
suppression of the privilege cannot be made a substitute for the duty to
maintain order in connection with the exercise of the right."cralaw virtua1aw
library

Section 2434 of the Administrative Code, a part of the Charter of the City of
Manila, which provides that the Mayor shall have the power to grant and
refuse municipal licenses or permits of all classes, cannot be cited as an
authority for the Mayor to deny the application of the petitioner, for the
simple reason that said general power is predicated upon the ordinances
enacted by the Municipal Board requiring licenses or permits to be issued by
the Mayor, such as those found in Chapters 40 to 87 of the Revised
Ordinances of the City of Manila. It is not a specific or substantive power
independent from the corresponding municipal ordinances which the Mayor,
as Chief Executive of the City, is required to enforce under the same section
2434. Moreover "one of the settled maxims in constitutional law is that the
power conferred upon the Legislature to make laws cannot be delegated by
that department to any other body or authority," except certain powers of
local government, specially of police regulation which are conferred upon the
legislative body of a municipal corporation. Taking this into consideration,
and that the police power to regulate the use of streets and other public
places has been delegated or rather conferred by the Legislature upon the
Municipal Board of the City (section 2444 [u] of the Administrative Code) it
is to be presumed that the Legislature has not, in the same breath,
conferred upon the Mayor in section 2434 (m) the same power, specially if
we take into account that its exercise may be in conflict with the exercise of
the same power by the Municipal Board.

Besides, assuming arguendo that the Legislature has the power to confer,
and in fact has conferred, upon the Mayor the power to grant or refuse
licenses and permits of all classes, independent from ordinances enacted by
the Municipal Board on the matter, and the provisions of section 2444 (u) of
the same Code and of section 1119 of the Revised Ordinances to the
contrary notwithstanding, such grant of unregulated and unlimited power to
grant or refuse a permit for the use of streets and other public places for
processions, parades, or meetings, would be null and void, for the same
reasons stated in the decisions in the cases above quoted, specially in Willis
Cox v. New Hampshire, supra, wherein the question involved was also the
validity of a similar statute of New Hamsphire. Because the same
constitutional limitations applicable to ordinances apply to statutes, and the
same objections to a municipal ordinance which grants unrestrained
discretion upon a city officer are applicable to a law or statute that confers
unlimited power to any officer either of the municipal or state governments.
Under our democratic system of government no such unlimited power may
be validly granted to any officer of the government, except perhaps in cases
of national emergency. As stated in State ex rel. Garrabad v. Dering, supra,
"The discretion with which the council is vested is a legal discretion to be
exercised within the limits of the law, and not a discretion to transcend it or
to confer upon any city officer an arbitrary authority making in its exercise a
petty tyrant."cralaw virtua1aw library
It is true that Mr. Justice Ostrand cited said provision of article 2434 (m) of
the Administrative Code apparently in support of the decision in the case of
Evangelista v. Earnshaw, 57 Phil., 255- 261, but evidently the quotation of
said provision was made by the writer of the decision under a mistaken
conception of its purview and is an obiter dictum, for it was not necessary
for the decision rendered. The popular meeting or assemblage intended to
be held therein by the Communist Party of the Philippines was clearly an
unlawful one, and therefore the Mayor of the City of Manila had no power to
grant the permit applied for. On the contrary, had the meeting been held, it
was his duty to have the promoters thereof prosecuted for violation of
section 844, which is punishable as misdemeanor by section 1262 of the
Revised Ordinances of the City of Manila. For, according to the decision, "the
doctrine and principles advocated and urged in the Constitution and by-laws
of the said Communist Party of the Philippines, and the speeches uttered,
delivered, and made by its members in the public meetings or gatherings, as
above stated, are highly seditious, in that they suggest and incite rebelious
conspiracies and disturb and obstruct the lawful authorities in their
duty."cralaw virtua1aw library

The reason alleged by the respondent in his defense for refusing the permit
is, "that there is a reasonable ground to believe, basing upon previous
utterances and upon the fact that passions, specially on the part of the
losing groups, remains bitter and high, that similar speeches will be
delivered tending to undermine the faith and confidence of the people in
their government, and in the duly constituted authorities, which might
threaten breaches of the peace and a disruption of public order." As the
request of the petition was for a permit "to hold a peaceful public meeting,"
and there is no denial of that fact or any doubt that it was to be a lawful
assemblage, the reason given for the refusal of the permit can not be given
any consideration. As stated in the portion of the decision in Hague v.
Committee on Industrial Organization, supra, "It does not make comfort and
convenience in the use of streets or parks the standard of official action. It
enables the Director of Safety to refuse the permit on his mere opinion that
such refusal will prevent riots, disturbances or disorderly assemblage. It can
thus, as the record discloses, be made the instrument of arbitrary
suppression of free expression of views on national affairs, for the
prohibition of all speaking will undoubtedly ’prevent’ such eventualities." To
this we may add the following, which we make our own, said by Mr. Justice
Brandeis in his concurring opinion in Whitney v. California, 71 U. S. (Law.
ed.) , 1105-1107:jgc:chanrobles.com.ph

"Fear of serious injury cannot alone justify suppression of free speech and
assembly. Men feared witches and burned women. It is the function of
speech to free men from the bondage of irrational fears. To justify
suppression of free speech there must be reasonable ground to fear that
serious evil will result if free speech is practiced. There must be reasonable
ground to believe that the danger apprehended is imminent. There must be
reasonable ground to believe that the evil to be prevented is a serious
one . . .

"Those who won our independence by revolution were not cowards. They did
not fear political change. They did not exalt order at the cost of liberty. . . .

"Moreover, even imminent danger cannot justify resort to prohibition of

these functions essential effective democracy, unless the evil apprehended is
relatively serious. Prohibition of free speech and assembly is a measure so
stringent that it would be inappropriate as the means for averting a
relatively trivial harm to a society. . . . The fact that speech is likely to result
in some violence or in destruction of property is not enough to justify its
suppression. There must be the probability of serious injury to the state.
Among freemen, the deterrents ordinarily to be applied to prevent crimes
are education and punishment for violations of the law, not abridgment of
the rights of free speech and assembly." Whitney v. California, U. S. Sup. Ct.
Rep., 71 Law., ed., pp. 1106-1107.)

In view of all the foregoing, the petition for mandamus is granted and, there
appearing no reasonable objection to the use of the Plaza Miranda, Quiapo,
for the meeting applied for, the respondent is ordered to issue the
corresponding permit, as requested. So ordered.

Moran, C.J., Pablo, Perfecto, Bengzon and Briones, JJ., concur.

Separate Opinions

PARAS, J., concurring:chanrob1es virtual 1aw library

The subject-matter of the petition is not new in this jurisdiction. Under Act
No. 2774, section 4, amending section 2434, paragraph (m) of the Revised
Administrative Code, the Mayor has discretion to grant or deny the petition
to hold the meeting. (See Evangelista v. Earnshaw, 57 Phil., 255.) And, in
the case of U. S. v. Apurado, 7 Phil., 422, 426, this Court
said:jgc:chanrobles.com.ph

"It is rather to be expected that more or less disorder will mark the public
assembly of the people to protest against grievances whether real or
imaginary, because on such occasions feeling is always wrought to a high
pitch of excitement, and the greater the grievance and the more intense the
feeling, the less perfect, as a rule, will be the disciplinary control of the
leaders over their irresponsible followers. But if the prosecution be permitted
to seize upon every instance of such disorderly conduct by individual
members of a crowd as an excuse to characterize the assembly as a
seditious and tumultuous rising against the authorities, then the right to
assemble and to petition for redress of grievances would become a delusion
and snare and the attempt to exercise it on the most righteous occasion and
in the most peaceable manner would expose all those who took part therein
to the severest and most unmerited punishment, if the purposes which they
sought to attain did not happen to be pleasing to the prosecuting authorities.
If instances of disorderly conduct occur on such occasions, the guilty
individuals should be sought out and punished therefor."cralaw virtua1aw
library

The petitioner is a distinguished member of the bar and Floor Leader of the
Nacionalista Party in the House of Representatives; he was the chief
campaigner of the said party in the last elections. As the petition comes from
a responsible party, in contrast to Evangelista’s Communist Party which was
considered subversive, I believe that the fear which caused the Mayor to
deny it was not well founded and his action was accordingly far from being a
sound exercise of his discretion.

BRIONES, M., conforme:chanrob1es virtual 1aw library

"5. Regulation of parks and streets. — "Wherever the title of streets and
parks may rest, they have immemorially been held in trust for the use of the
public and, time out of mind, have been used for purposes of assembly,
communicating thoughts between citizens, and discussing public questions.
Such use of the streets and public places has, from ancient times, been a
part of the privileges, immunities, rights, and liberties of citizens. The
privilege of the citizen of the United States to use the streets and parks for
communication of views on national questions may be regulated in the
interest of all; it is not absolute, but relative, and must be exercised in
subordination to the general comfort and convenience, and in consonance
with peace and good order; but it must not in the guise of regulation be
abridged or denied. We think the court below was right in holding the
ordinance . . . void upon its face. It does not make comfort or convenience
in the use of streets or parks the standard of official action. It enables the
Director of Safety to refuse a permit on his mere opinion that such refusal
will prevent riots, disturbances, or disorderly assemblage. It can thus, as the
record discloses, be made the instrument of arbitrary suppression of free
expression of views on national affairs for the prohibition of all speaking will
undoubtedly ’prevent’ such eventualities. But uncontrolled official
suppression of the privilege cannot be made a substitute for the duty to
maintain order in connection with the exercise of the right." (Hague v.
Committee for Industrial Organization, 307 U. S. 496, 515-516.)

HILADO, J., dissenting:chanrob1es virtual 1aw library

Because the constitutional right of assembly and petition for redress of

grievances has been here invoked on behalf of petitioner, it has been
considered doubly necessary to expound at length the grounds of my
dissent. We are all ardent advocates of this right, whenever and wherever
properly exercisable. But, in considering the legal problem here presented
serenely and dispassionately, as I had to, I arrived at a different conclusion
from that of the majority.

(a) Right not absolute but subject to regulation. — It should be recognized

that this right is not absolute and is subject to reasonable regulations.
(Philippine Constitutional Law by Malcolm and Laurel, 3d ed., p. 407;
Commonwealth v. Abrahams, 156 Mass., 57, 30 N.E. 79.)

Messers. Malcolm and Laurel say: "The right of peaceful assemblage is not
an absolute one. Assemblies are subject to reasonable regulations."cralaw
virtua1aw library

In the above cited case of Commonwealth v. Abrahams, which is cited in

support of the text on page 407 of the above cited work on Philippine
Constitutional Law by Malcolm and Laurel, the Supreme Judicial Court of
Massachusetts considered and decided a case involving a regulation by the
Board of Park Commissioners forbidding all persons "to make orations,
harangues, or loud outcries" in a certain park, under penalty of $20, except
upon prior consent of the board. The defendant requested permission to
deliver an oration in the park, which was refused by the board, and
thereafter entered the park, and delivered an "oration or harangue" about
ten or fifteen minutes in length. In a criminal trial of said defendant for
violating the rules promulgated by the Board of Park Commissioners, said
rules were held valid and reasonable, and not inconsistent with article 19 of
the Bill of Rights (of the Massachusetts Constitution), providing that "the
people have a right, in an orderly and peaceable manner, to assemble to
consult upon the common good, give instructions to their representatives,
and to request of the legislative body, by the way of addresses, petitions, or
remonstrances, redress of the wrongs done them, and of the grievances
they suffer." In that case the defendant admitted that the people would not
have the right to assemble for the purposes specified in the public streets,
and might not have such right in the public gardens or on the common,
because such an assembly would or might be inconsistent with the public
use for which these places are held. And the Supreme Court of
Massachusetts said:jgc:chanrobles.com.ph

". . . . The same reasons apply to any particular park. The parks of Boston
are designed for the use of the public generally; and whether the use of any
park or a part of any park can be temporarily set aside for the use of any
portion of the public, is for the park commissioners to decide, in the exercise
of a wise discretion."cralaw virtua1aw library

In the above-quoted case it appears from the statement of facts preceding

the opinion that within the limits of Franklin Park, there involved, were large
areas not devoted to any special purpose and not having any shrubbery that
would be injured by the gathering thereon of a large concourse of people;
that defendant’s speech contained nothing inflammatory or seditious, and
was delivered in an ordinary oratorical tone; that at the close of the oration
the audience quietly dispersed; and that no injury of any kind was done to
the park. Still, it was held that the regulation under which the Board of Park
Commissioners denied the permission to deliver said oration requested by
the defendant was valid and was not inconsistent with that provision of the
Massachusetts Bill of Rights guaranteeing to the people the "right, in an
orderly and peaceable manner, to assemble to consult upon the common
good, give instructions to their representatives, and to request of the
legislative body, by the way of addresses, petitions, or remonstrances,
redress of the wrongs done them, and of the grievances they suffer."cralaw
virtua1aw library

In the case at bar, the Mayor of Manila had the duty and the power, inter
alia, "to grant and refuse municipal . . . permits of all classes . . . for any
(other) good reason of general interest" (Rev. Ad. Code, section 2434 [b]-
[m]; italics ours); and "to comply with and enforce and give the necessary
orders for the faithful enforcement and execution of the laws and ordinances
in effect within the jurisdiction of the city." [Ibid., section 2434 (b)-(a)]; and
among the general powers and duties of the Municipal Board, whose
ordinances the said Mayor was at once bound and empowered to comply
with and enforce, were such as "regulate the use of streets, . . . parks, . . .
and other public places." [Ibid., section 2444 (u); italics ours.]

Another legal doctrine which should not be lost sight of is that, without
abridging the right of assembly and petition, the government may regulate
the use of places — public places — wholly within its control, and that the
state or municipality may require a permit for public gatherings in public
parks and that, while people have the right to assemble peaceably on the
highways and to parade on streets, nevertheless the state may regulate the
use of the streets by requiring a permit (16 C. J. S., p. 642). In our
government the state, through the Charter of Manila, has conferred certain
powers pertinent to the subject under consideration upon the City Mayor,
and upon the Municipal Board. Among these is the duty and power of said
Mayor "to grant and refuse municipal . . . permits of all classes . . . for any
good reason of general interest" (italics ours), and the power and duty of the
Municipal Board "to regulate the use . . . of street, . . . parks, . . . and other
public places . . ." (italics ours), already above discussed.

Plaza Miranda in a way is a public square or plaza, and in another sense, in

view of its more frequent public use, is a public place devoted to traffic
between several streets which empty into it within the district of Quiapo. It
is a fact of common knowledge and within the judicial notice of this Court
that said plaza is one of the public places constantly used by an usually
great number of people during all hours of the day and up to late hours of
the night, both for vehicular and for pedestrian traffic. It is one of the
centers of the city where a heavy volume of traffic during those hours
converges and from which it again proceeds in all directions; and the holding
during those hours of a meeting, assembly or rally of the size and nature of
that contemplated by petitioner and those belonging to the Coalesced
Minority Parties when the permit in question was requested from the City
Mayor, must have been expected to greatly inconvenience and interfere with
the right of the public in general to devote said plaza to the public uses for
which it has been destined since time immemorial.

The rule may perhaps be more aptly stated by saying that the right of
peaceful assembly and petition is not absolute but subject to regulation as
regards the time, place, and manner of its exercise. As to time, it seems
evident, for example, that the State, directly or through the local
government of the city or municipality, by way of regulation of the right of
free speech, may validly prohibit the delivery of speeches on public streets
near private residences between midnight and dawn. As to place, we have
the example of the instant case involving Plaza Miranda or any other public
place. And as to manner, it is a familiar rule that the freedom of speech does
not authorize the speaker to commit slander or defamation, and that laws
and ordinances aimed at preventing such abuses are valid regulations of the
right. Among other cases which may be cited on the same point, we have
that of Hague v. Committee on Industrial Organization, 307 U. S., 496, 83
Law. ed., 1423, cited in the majority opinion and from which the following
passage is copied from the quotation therefrom in the said
opinion:jgc:chanrobles.com.ph
". . . The privilege of a citizen of the United States to use the streets and
parks for communication of views on national questions may be regulated in
the interest of all; it is not absolute, but relative, and must be exercised in
subordination to the general comfort and convenience, and in consonance
with peace and good order; but it must not, in the guise of regulation, be
abridged or denied." (Italics ours.)

I construe this declaration of principles by the United States Supreme Court

to imply that where the regulatory action is predicated upon the "general
comfort and convenience," and is "in consonance with peace and good
order," as in the instant case, such action is regulation and not "guise of
regulation," and therefore does not abridge or deny the right.

(b) No constitutional right to use public places under government control, for
exercise of right of assembly and petition, etc. —

Indeed, carefully analyzed, the action taken by the City Mayor was not even
a regulation of the constitutional right of assembly and petition, or free
speech, claimed by petitioner, but rather of the use of a public place under
the exclusive control of the city government for the exercise of that right.
This, I submit, is a distinction which must be clearly maintained throughout
this discussion. No political party or section of our people has any
constitutional right to freely and without government control make use of
such a public place as Plaza Miranda, particularly if such use is a deviation
from those for which said public places have been by their nature and
purpose immemorially dedicated. In other words, the City Mayor did not
attempt to have anything to do with the holding of the "indignation rally" or
the delivery of speeches thereat on the date desired at any place over which
said mayor had no control — his action was exclusively confined to the
regulation of the use of Plaza Miranda for such a purpose and at such a time.
Chief Justice Hughes, speaking for a unanimous court in Cox v. New
Hampshire, 312 U. S., 569, 85 Law. ed., 1049, 1054,
said:jgc:chanrobles.com.ph

"If a municipality has authority to control the uses of its public streets for
parades or processions, as it undoubtedly has, it can not be denied authority
to give consideration, without unfair discrimination, to time, place, and
manner in relation to the other proper uses of the streets. We find it
impossible to say that the limited authority conferred by the licensing
provisions of the statute in question as thus construed by the state court
contravened any constitutional right." (Italics ours.)

That case was concerned with a prosecution of sixty-eight "Jehovah’s

Witnesses" in a municipal court in the State of New Hamsphire for violation
of a state statute prohibiting a "parade or procession" upon a public street
without a special license. The appellants invoked the constitutional right of
free speech and press, as well as that of assembly. The judgment of the
municipal court was affirmed by the Supreme Court of New Hamsphire and
that of the latter was affirmed by the United States Supreme Court. Among
other things, the United States Supreme Court said that the appellants were
not prosecuted for distributing leaflets, or for conveying information by
placards or otherwise, or for issuing invitations to a public meeting, or for
holding a public meeting, or for maintaining or expressing religious beliefs.
Their right to do any of these things apart from engaging in a "parade or
procession," upon a public street was not involved in the case. The question
of the validity of a statute addressed to any other sort of conduct than that
complained of was declared not to be before the court (85 Law. ed., 1052).
By analogy, I may say that in the instant case the constitutional rights of
free speech, assembly and petition are not before the court but merely the
privilege of petitioner and of the Coalesced Minorities to exercise any or all
of said rights by using Plaza Miranda, a public place under the complete
control of the city government. In the same case of Cox v. New Hampshire,
supra, Chief Justice Hughes, in his opinion, used the following eloquent
language:jgc:chanrobles.com.ph

"Civil liberties, as guaranteed by the Constitution, imply the existence of an

organized society maintaining public order without which liberty itself would
be lost in the excesses of unrestrained abuses. The authority of a
municipality to impose regulations in order to assure the safety and
convenience of the people in the use of public highways has never been
regarded as inconsistent with civil liberties but rather as one of the means of
safeguarding the good order upon which they ultimately depend. The control
of travel on the streets of cities is the most familiar illustration of this
recognition of social need. Where a restriction of the use of highways in that
relation is designed to promote the public convenience in the interest of all,
it can not be disregarded by the attempted exercise of some civil right which
in other circumstances would be entitled to protection. One would not be
justified in ignoring the familiar red traffic light because he thought it his
religious duty to disobey the municipal command or sought by that means to
direct public attention to an announcement of his opinion. . . ." (85 Law. ed.,
1052-1053.)

In other words, when the use of public streets or places is involved, public
convenience, public safety and public order take precedence over even
particular civil rights. For if the citizen asserting the civil right were to
override the right of the general public to the use of such streets or places,
just because it is guaranteed by the constitution, it would be hard to
conceive how upon the same principle that citizen be prevented from using
the private property of his neighbor for the exercise of the asserted right.
The constitution, in guaranteeing the right of peaceful assembly and petition,
the right of free speech, etc., does not guarantee their exercise upon public
places, any more than upon private premises, without government
regulation in both cases, or the owner’s consent in the second.

In Davis v. Commonwealth, 167 U. S. 43, 42 Law. ed., 71, 72, the United
States Supreme Court, in affirming the decision of the Supreme Judicial
Court of Massachusetts written by Justice Oliver Wendell Holmes, then of the
latter tribunal, quoted from said decision as follows:jgc:chanrobles.com.ph

". . . As representative of the public it (legislature) may and does exercise

control over the use which the public may make of such places (public parks
and streets), and it may and does delegate more or less of such control to
the city or town immediately concerned. For the legislature absolutely or
conditionally to forbid public speaking in a highway or public park is no more
an infringement of the rights of a member of the public than for the owner of
a private house to forbid it in his house. When no proprietary right interferes
the legislature may end the right of the public to enter upon the public place
by putting an end to the dedication to public uses. So it may take the lesser
step of limiting the public use to certain purposes. See Dill. Mun. Corp. secs.
393, 407, 651, 656, 666; Brooklyn Park Comrs. v. Armstrong, 45 N. Y. 234,
243, 244 (6 Am. Rep. 70) . . ."cralaw virtua1aw library

(c) Authorities cited. —

I have examined the citations of authorities in the majority opinion. Most of

the cases therein cited are, I think, inapplicable to the one under
consideration, and those which may have some application, I believe
reinforce this dissent. None of them was for mandamus to compel the
granting of a permit for holding a meeting, assembly, or the like, upon a
public place within the control of the general or local government.

The fact that a law or municipal ordinance under which a person had been
prosecuted for delivering a speech without the required permit, for example,
was declared unconstitutional or otherwise void for delegating an unfettered
or arbitrary discretion upon the licensing authority, thus completely failing to
confer the discretion, does not mean that such person has the right by
mandamus to force said authority to grant him the permit. If, in such a case,
the law or ordinance, conferring the discretion, is unconstitutional or void,
the mandamus suit becomes entirely idle. Such a suit would involve a self-
contradictory proposition, for the very idea of a permit is something which
may be granted or withheld. He who has the power to grant permission for
the doing of an act necessarily has the correlative power to deny the
permission. A "permit" which under no conditions or circumstances and at no
time can be refused needs a different name.

Willis Cox v. State of New Hampshire, 312 U. S., 569, was concerned with a
statute of the State of New Hampshire which was construed by the Supreme
Court of the same State as not conferring upon the licensing board
unfettered discretion to refuse the license, and was held valid both by said
Supreme Court and the Supreme Court of the United States.

In our case, section 2434 (b)-(m) of the Revised Administrative Code does
not confer upon the Mayor of Manila an unfettered discretion to grant or to
refuse the permit — his power to grant or to refuse the permit is controlled
and limited by the all-important requirement of the same section that
whatever his determination, it should be "for any good reason of general
interest."cralaw virtua1aw library

In City of Chicago v. Trotter, 136 Ill., 430, the Supreme Court of the State of
Illinois held that the power of city councils under the state laws to regulate
the use of the public streets could not be delegated by them, and therefore
could not be delegated to the superintendent of police. But in our case the
power of the City Mayor under the Revised Administrative Code has not been
delegated by the Municipal Board of Manila but has been directly conferred
by the State through its legislature.

In State ex rel. Garrabad v. Dering, 84 Wis., 585, what was involved was a
city ordinance committing to the unrestrained will of a public officer the
power to determine the rights of parties under the ordinance without
anything "to guide or control his action." In our case, as already stated, the
City Mayor received his power from the State through the Legislature which
enacted the Revised Administrative Code, and moreover, his action was
therein provided to be guided and controlled by the already mentioned
requirement that whether he grants or refuses a municipal permit of any
class, it shall be for some "good reason of general interest," and not as his
unfettered will may dictate.

The case of In re Fradzee, 63 Mich., 399, involved a city ordinance declared

unreasonable and void by the Supreme Court of Michigan, the ordinance
prohibiting certain uses of the public streets of the City of Grand Rapids
"without having first obtained the consent of the mayor or common council
of said city." The ordinance did not prescribe any guide, control or limitation
for, of, and to, the exercise of the power thus conferred upon the mayor or
common council. The following passage from the quotation from the decision
of the Supreme Court of Michigan made in the majority opinion would seem
to reinforce the stand taken in this dissent.
". . . We must therefore construe this charter, and the powers it assumes to
grant, so far as it is not plainly unconstitutional, as only conferring such
power over the subjects referred to as will enable the city to keep order, and
suppress mischief, in accordance with the limitations and conditions required
by the rights of the people themselves, as secured by the principles of law,
which can not be less careful of private rights under a constitution than
under the common law.

"It is quite possible that some things have a greater tendency to produce
danger and disorder in the cities than in smaller towns or in rural places.
This may justify reasonable precautionary measures, but nothing further;
and no inference can extend beyond the fair scope of powers granted for
such a purpose, and no grant of absolute discretion to suppress lawful action
altogether can be granted at all . . . ." (Italics ours.)

The instant case is concerned with an "indignation rally" to be held at one of

the busiest and most frequented public places in this big cosmopolitan city,
with a present population estimated to be 150 per cent larger than its
prewar population, and the public officer who was being called upon to act
on the petition for permit was the chief executive of the city who was by
reason of his office the officer most directly responsible for the keeping and
maintenance of peace and public order for the common good. And as stated
elsewhere in this dissent, his power in the premises was not without control,
limitation or guide and, lastly, the action taken by him was not an absolute
suppression of the right claimed but was merely a postponement of the use
of a public place for the exercise of that right when popular passions should
have calmed down and public excitement cooled off sufficiently to better
insure the avoidance of public peace and order being undermined.

Rich v. Mapervill, 42 Ill. Ap., 222 had to do with another city ordinance. The
court there held that when men in authority are permitted in their discretion
to exercise "power so arbitrary, liberty is subverted, and the spirit of our
free institution violated." (Italics ours.) This is not our case, as the power of
the Manila Mayor now under consideration is not at all arbitrary. It was
further held in that case that where the granting of the permit is left to the
unregulated discretion of a small body of city alderman, the ordinance can
not be other than partial and discriminating in its practical operation. The
case at bar is radically different for, as already shown, the discretion of the
City Mayor here is not unregulated, for the phrase "any good reason of
general interest" is certainly an effective regulatory condition precedent to
the exercise of the power one way or the other. And just as certainly the
reasons alleged by the respondent Mayor for his action stated in his letters
dated November 15 and 17, 1947, addressed to petitioner and in his
affidavit Annex 1, seem entirely well founded and well taken, consideration
being had of his grave responsibilities as the immediate keeper of peace and
public order in the city. Elsewhere in this dissent we quote from said
documents textually.

On page 13 of the majority opinion there is a quotation of another passage

from the case of Cox v. New Hampshire, supra, which
says:jgc:chanrobles.com.ph

"As regulation of the use of the streets for parades and processions is a
traditional exercise of control by local government, the question in a
particular case is whether that control is exerted so as not to deny or
unwarrantedly abridge the right of assembly and the opportunities for the
communication of thought and the discussion of public questions
immemorially associated with resort to public places."cralaw virtua1aw
library

The above rule means that if the control exerted does not deny or
unwarrantedly abridge the right of assembly, such control is legally valid.
This is precisely our case, since the respondent Mayor neither denied nor
unwarrantedly abridged the right asserted by petitioner and his companions.
If the postponement of the granting of the permit should be taken as a
denial of the right, then we would be practically denying the discretion of the
proper official for it would be tantamount to compelling him to grant the
permit outright, which would necessarily mean that he can never refuse the
permit, for one who cannot even postpone the granting of such permit much
less can altogether refuse it.

Hague v. Committee for Industrial Organization, 307 U. S. 496, 83 Law. ed.,

1423, apart from being clearly distinguishable from the instant case as later
demonstrated, contains the passage quoted on page 7 of this dissent, which
decidedly supports it. The distinction between that case and this is that there
"the ordinance deals only with the exercise of the right of assembly for the
purpose of communicating views entertained by speakers, and is not a
general measure to promote the public convenience in the use of the streets
or parks" (83 Law. ed., 1436); while in the instant case section 2434 (b)-
(m) of the Revised Administrative Code is not solely aimed at prohibition of
any particular act for it likewise provides for permission, and in both cases is
expressly aimed at promoting the "general interest."cralaw virtua1aw library

Cox v. State of New Hampshire, 312 U. S., 569, 95 Law, ed., 1049, is
equally in solid support of this dissent as appears from No. 2 of the syllabus
therein:jgc:chanrobles.com.ph
"A statute requiring persons using the public streets for a parade or
procession to procure a special license therefor from the local authorities is
not an unconstitutional abridgment of the rights of assembly or of freedom
of speech and press, where, as the statute is construed by the state courts,
the licensing authorities are strictly limited, in the issuance of licenses, to a
consideration of the time, place, and manner, of the parade or procession,
with a view to conserving the public convenience and of affording an
opportunity to provide proper policing, and are not invested with arbitrary
discretion to issue or refuse licenses, but are required to exercise their
discretion free from improper or inappropriate considerations and from
unfair discrimination." (Italics ours)

In empowering and directing the City Mayor to grant or refuse permits "for
any . . . good reason of general interest," the Revised Administrative Code
plainly has in view only the common good and excludes all "improper or
inappropriate considerations" and "unfair discrimination" in the exercise of
the granted discretion.

Lastly, as between Hague v. Committee for Industrial Organization, supra,

and Cox v. State of New Hampshire supra, the choice is obvious with regard
to their authoritative force, when it is considered that in the former out of
the nine Justices of the United States Supreme Court two did not take part
and of the seven who did only two, Justices Roberts and Black, subscribed
the opinion from which the majority here quote, while in the latter (Cox v.
State of New Hampshire) the decision was unanimous.

(d) Mandamus unavailable. —

McQuillin on Municipal Corporations, 2nd ed., Revised, Volume 6, p. 848,

section 2714, expresses the rule obtaining in the United States that the
immunity from judicial control appertaining to the Office of the Governor of
the State, or to the Presidency of the United States, does not attach to the
mayoralty of a city. But on page 878, section 2728, he has the following to
say on the unavailability of mandamus to compel the granting of licenses
and permits by municipal officers:jgc:chanrobles.com.ph

"Sec. 2728. To compel the granting of licenses and permits. — If the

issuance of the license or permit is discretionary with the officer or municipal
board, it is clear that it cannot be compelled by mandamus. The cases
rarely, if ever, depart from this well established rule, and in consequence in
doubtful cases the judicial decisions uniformly disclose a denial of the
remedy. As already stated, the fundamental condition is that the petition
must show a clear legal right to the writ and a plain neglect of duty on the
part of the public officer to perform the act sought to be enforced. For
example, one who seeks to compel a city to issue to him a permit for the
erection of a building must show compliance with all the valid requirements
of the building ordinances and regulations.

"The granting of licenses or permits by municipal or other public authorities,

as mentioned, is usually regarded as a discretionary duty, and hence,
ordinarily, mandamus will not lie to compel them to grant a license or issue
a permit to one claiming to be entitled thereto, especially where it is not
alleged and shown that the exercise of such discretion was arbitrary. All the
court can do is to see that the licensing authorities have proceeded
according to law. Their decision will not be reviewed on its merits. Where,
however, refusal to grant a license or to issue a permit, as said above, is
arbitrary or capricious mandamus will lie to compel the appropriate official
action. . . ." To my mind, the following reasons, alleged by the respondent
Mayor, negative all element of arbitrariness in his official action. . . ."cralaw
virtua1aw library

To my mind, the following reasons, alleged by the respondent Mayor,

negative all element of arbitrariness in his official
action:jgc:chanrobles.com.ph

". . . please be advised that upon reading the metropolitan newspapers this
morning wherein it appears that your meeting will be an indignation rally at
which all the supposed election frauds allegedly perpetrated in many parts of
the Philippines for the purpose of overriding the popular will, will be bared
before the people, this office hereby revokes the said permit.

"It is believed that public peace and order in Manila will be undermined at
the proposed rally considering that passions have not as yet subsided and
tension remains high as an aftermath of the last political contest.

"According to the same newspapers, delegates from the provinces and

students from local universities will participate in the said rally which, in my
opinion, would only precipitate trouble since no guarantee can be given that
only the opposition elements will be there. The moment the crowd becomes
mixed with people of different political colors which is most likely to happen,
public order is exposed to danger once the people are incited, as they will be
incited, considering the purposes for which the meeting will be held as
reported in the newspapers above mentioned.

". . ." (Mayor’s letter dated November 15, 1947.)

"I have the honor to acknowledge receipt of your letter of November 7,

1947, requesting for a permit to hold a public meeting at Plaza Miranda,
Quiapo, on Saturday, November 22, 1947, for the purpose of denouncing
the alleged fraudulent manner in which the last elections have been
conducted and the alleged nationwide flagrant violation of the Election Law,
and of seeking redress therefor. It is regretted that for the same reasons
stated in my letter of November 15, 1947, your request can not be granted
for the present. This Office has adopted the policy of not permitting
meetings of this nature which are likely to incite the people and disrupt the
peace until the results of the elections shall have been officially announced.
After this announcement, requests similar to yours will be granted.

". . ." (Mayor’s letter dated November 17, 1947.)

"That according to Congressman Primicias, the meeting will be an

indignation rally for the purpose of denouncing the alleged fraudulent
manner the said elections were conducted and the nationwide flagrant
violations of the Election Law;

"2. That it is a fact that the returns of the last elections are still being
recounted in the City of Manila in the Commission on Elections, and pending
the final announcement of the results thereof, passions, especially on the
part of the losing groups, remain bitter and high;

"3. That allusions have been made in the metropolitan newspapers that in
case of defeat, there will be minority resignations in Congress, rebellion and
even revolution in the country;

"4. That I am sure that the crowd that will attend the said meeting will be a
multitude of people of different and varied political sentiments;

"5.x x x

"6. That judging from the tenor of the request for permit and taking into
consideration the circumstances under which said meeting will be held, it is
safe to state that once the people gathered thereat are incited, there will
surely be trouble between the opposing elements, commotion will follow,
and then peace and order in Manila will be disrupted; and

"7. That the denial of said request for permit has been made for no other
reasons except to perform my duty as Mayor of Manila to maintain and
preserve peace and order in this City.

"8. That I have assured Congressman Primicias that immediately after the
election returns shall have been officially announced, the Nacionalista Party
or any party will be granted permit to hold meetings of indignation and to
denounce alleged frauds." (Annex 1, Answer.)

For these and other reasons which could be advanced in corroboration, I am

of the considered opinion that the respondent Mayor had under the law the
requisite discretion to grant or to refuse the permit requested, and therefore
to revoke that which had previously been granted, and that the reasons for
such revocation alleged in his letters dated November 15 and 17, 1947, to
petitioner and in his affidavit Annex 1 were amply sufficient to justify his last
action. And be it distinctly observed that this last action was not an absolute
denial of the permit, but a mere postponement of the time for holding the
"rally" for good reasons "of general interest" in the words of section 2434 (b)
— (m) of the Revised Administrative Code.

TUASON, J., dissenting:chanrob1es virtual 1aw library

I join in Mr. Justice Hilado’s dissent and wish to add a few remarks.

As Mr. Justice Hilado says, freedom of speech, of the press, and of peaceable
assemblage, is only an incidental issue in this case. No one will contest the
proposition that the mayor or the Congress itself may not stop the petitioner
and his men from meeting peaceably and venting their grievances in a
private place. The main issue rather is the extent of the right of any group of
people to use a public street or a public plaza for a purpose other than that
for which it is dedicated.

The constitutional guaranty of free speech does not prevent the government
from regulating the use of places within its control. A law or ordinance may
forbid the delivery of addresses on the public parks, or on the streets as a
valid exercise of the police power. (12 C. J., 954.) Rights of assembly and of
petition are not absolute rights and are to be construed with regard to the
general law. (16 C. J. S., 640.) Indeed, "the privileges of a citizen of the
United States to use the streets and parks for communication of views on
national questions . . . must be exercised in subordination to the general
comfort and convenience." (Hague v. Committee for Industrial Organization,
307 U. S., 496, 83 Law. ed., 1433.) And so long as the municipal authorities
act within the legitimate scope of their police power their discretion is not
subject to outside interference or judicial revision or reversal. (44 C. J.,
1101.) Of necessity a municipality must be allowed reasonable latitude in
this regard. (14 C. J., 931.)

The mayor did not act capriciously or arbitrarily in withholding or postponing

the permit applied for by the petitioner. His reasons were real, based on
contemporary events of public knowledge, and his temporary refusal was
reasonably calculated to avoid possible disturbances as well as to advance
and protect the public in the proper use of the most congested streets and
public plaza in an overcrowded city. There was reason to fear disturbances,
not from the petitioner and his men but from elements who had no
connection with the holding of the meeting but who, having gripes, might be
easily excited to violence by inflammatory harangues when nerves were on
edge.

The fact that no untoward incident occurred does not prove the
judiciousness of this Court’s resolution. The court is not dealing with an
isolated case; it is laying down a rule of transcendental importance and far-
reaching consequences, in the administration of cities and towns. If nothing
happened, it is well to remember that, according to newspapers, 500
policemen were detailed to prevent possible disorder at the gathering. It
should also be borne in mind that vehicular traffic in the vicinity of Plaza
Miranda had to be suspended and vehicles had to be rerouted before, during
and after the meeting. All of which entailed enormous expense by the city
and discomforts to the general public.

No individual citizen or group of citizens certainly has a right to claim the use
of a public plaza or public streets at such great expense and sacrifice on the
part of the city and of the rest of the community. Yet, by virtue of this
Court’s resolution any person or group of persons invoking political, civil or
religious freedom under the constitution is at liberty to stage a rally or
parade or a religious procession, with the mayor powerless to do anything
beyond seeing to it that no two meetings or parades were held in the same
place or close to each other. No precedent in the United States, after whose
institutions ours are modelled, approaches this Court’s resolution in its
disregard of the government’s authority to control public streets and to
maintain peace and order. In an infant republic where the state of peace and
order is still far from normal, where the forces of law are far from adequate
to cope with lawlessness; in a city where conditions of traffic are among the
worst if not the worst on earth, this Court sets down a principle that
outstrips its prototype in "liberality," forgetting that personal rights can only
exist in a properly regulated society. As Mr. Chief Justice Hughes said in Cox
v. New Hampshire, 61 S. Ct., 762, "Civil liberties, as guaranteed by the
Constitution, imply the existence of an organized society maintaining public
order without which liberty itself would be lost in the excesses of
unrestrained abuses. The authority of the municipality to impose regulations
in order to assure the safety and convenience of the people in the use of
public highways has never been regarded as inconsistent with civil liberties,
but rather as one of the means of safeguarding the good order upon which
they ultimately depend." To be logical, peddlers and merchants should be
given, as a matter of right, the freedom to use public streets and public
squares to ply their trade, for the freedom of expression and of assemblage
is no more sacred than the freedom to make a living. Yet no one has dared
make such claim.

The cases cited in the resolution are not applicable. It will be seen that each
of those cases involved the legality of a law or municipal ordinance. And if in
some of said cases a law or an ordinance was declared void, the grounds of
invalidation were either discrimination or lack of authority of the Legislature
or the municipal council under the state constitution or under the law to
adopt the contested measure.

As applied to Manila, there are both a law and an ordinance regulating the
use of public places and the holding of meetings and parades in such places.
As long as this law and this ordinance are in force the mayor does not only
have the power but it is his sworn duty to grant or refuse a permit according
to what he believes is in consonance with peace and order or is proper to
promote the general comfort and convenience of the inhabitants.

The Court says that section 2434 (m) of the Revised Administrative Code "is
not a specific of substantive power independent from the corresponding
municipal ordinance which the Mayor, as Chief Executive of the City, is
required to enforce under the same section 2434." The Court advances the
opinion that because section 2444 confers upon the municipal board "the
police power to regulate the use of streets and other public places," "it is to
be presumed that the Legislature has not, in the same breath, conferred
upon the Mayor in section 2434(m), the same power, specially if we take
into account that its exercise may be in conflict with the exercise of the
same power by the municipal board."cralaw virtua1aw library

Section 2434(m) is written in the plainest language for any casual reader to
understand, and it is presumed that it means what it says. This provision
certainly was not inserted in the city charter, which must have been drawn
with painstaking care, for nothing. And I am aware of no constitutional
provision or constitutional maxim which prohibits the delegation by the
Legislature of part of its police power affecting local matters, directly upon
the mayor instead of through the municipal board. Nor is there
incompatibility between section 2434 (m) and section 2444 or the ordinance
enacted under the latter. At any rate, section 2434(m) is of special character
while section 2444 is general, so that, if there is any conflict between section
2434(m) and the ordinance passed under section 2444, the former is to
prevail.

This Court has already set at rest the validity, meaning and scope of section
2434 (m) in a unanimous decision with all the nine members voting, when it
sustained the mayor’s refusal to grant a permit for a public meeting on a
public plaza to be followed by a parade on public streets. (Evangelista v.
Earnshaw, 57 Phil., 255.) The reference to section 2434(m) in that decision
was not an obiter dictum as the majority say. The sole question presented
there, as we gather from the facts disclosed, was the legality of the mayor’s
action, and the court pointed to section 2434(m) as the mayor’s authority
for his refusal. The fact that the mayor could have denied the petitioner’s
application under the general power to prohibit a meeting for unlawful
purposes did not make the disposition of the case on the strength of section
2434 (m) obiter dictum. An adjudication on any point within the issues
presented by the case cannot be considered a dictum; and this rule applies
as to all pertinent questions, although only incidentally involved, which are
presented and decided in the regular course of the consideration of the case,
and lead up to the final conclusion, and to any statement in the opinion as to
a matter on which the decision is predicated. Accordingly, a point expressly
decided does not lose its value as a precedent because the disposition of the
case is or might have been made on some other ground, or even though, by
reason of other points in the case, the result reached might have been the
same if the court had held, on the particular point, otherwise than it did. (1
C. J. S. 314-315.)

But the Court asserts that if the meaning of section 2434(m) is what this
Court said in the Evengelista-Earnshaw case, then that section is void. I do
not think that that provision is void — at least not yet. Until it is invalidated
in the proper case and in the proper manner, the mayor’s authority in
respect of the issuance of permits is to be measured by section 2434(m) and
by the municipal ordinance in so far as the ordinance does not conflict with
the law. The validity of that provision is not challenged and is nowhere in
issue. It is highly improper, contrary to the elementary rules of practice and
procedure for this Court to say or declare that that provision is void.
Moreover, Article VIII, section 10, of the Constitution provides that "all cases
involving the constitutionality of a treaty or law shall be heard and decided
by the Supreme Court in banc, and no treaty or law may be declared
unconstitutional without the concurrence of two-thirds of all the members of
the Court." Only seven members voted in favor of the resolution.

Endnotes: