petitioner filed a second application for renewal to cover the period from
LEMI v VALENCIA
On January 11, 1963, upon application of respondent Alfredo M. Cargo,
supported by a sworn statement subscribed by his co-respondent, Heraclio
San Juan, the Court of First Instance of Manila issued a Search Warrant
authorizing them to search radio station DZQR located at 603 Ronquillo St.,
Sta. Cruz, Manila, and to seize and take possession of the radio transmitter
used thereat, allegedly in violation of law. On that same date and in the
middle of a broadcasting program, they, accompanied by agents of the
Presidential Anti-Graft Committee (PAGCOM), served the search warrant,
made the corresponding search, and seized the transmitter then being
used at the aforesaid station.
Subsequently, Eliseo B. Lemi filed with Us a special civil action of
mandamus, with a petition for the issuance of a preliminary mandatory
injunction against Brigido Valencia, Secretary of Public Works and
Communications; Roberto M. San Andres, Chief, Radio Control Office;
Alfredo M. Cargo, Agent of the abovenamed secretary; Heraclio San Juan,
Radio Regulations Inspector, Radio Control Office; and Conrado Cajator,
Chairman, Presidential Anti-Graft Committee.
After respondents had been summoned and required to show cause why
the preliminary mandatory injunction prayed for should not be issued, a
hearing thereon was held, and the matter is now before Us for resolution.
It appears that by virtue of Republic Act No. 1553 petitioner is the holder of
a franchise authorizing him to construct, install, maintain, and operate radio
stations in the Philippines. On January 8, 1960, he was issued a license by
the Radio Control Officer, Department of Public Works and
Communications, to construct, maintain, and operate radio station DZQR,
with an assigned frequency of 740 kc. at 603 Ronquillo st., City of Manila,
which location was, with approval of the authorities concerned,
subsequently transferred to Globe Theater Bldg., corner of Raon st. and
Quezon Boulevard, Manila, and again, with proper authority, returned to its
original location where the search mentioned heretofore was made.
The first license (No. 5931) issued to petitioner on January 8, 1960 was for
the period from May 24, 1960 to May 23, 1961. On April 12, 1961 he filed
an application for its renewal to cover the period from May 24, 1961 to May
23, 1962, and paid the corresponding fees. Although the Radio Control
Office appears not to have acted at all on this application, petitioner
continued to operate his station without any interference whatsoever from
said office, this giving rise, naturally, to the presumption that it had no
objection to the continued operation of said station. On May 31, 1962,
May 24, 1962 to May 23, 1963 and paid the corresponding fees. Again the
Radio Control Office took no action on the matter, one way or the other,
thus inducing petitioner to believe that there was nothing irregular or wrong
with his application and with the continued operation of his station. In fact,
as late as December 7, 1962, respondent San Andres, on behalf of his co-
respondent, the Secretary of Public Works and Communications, requested
petitioner to feature some matters in his radio broadcasts as a public
service feature. Up to the time of the hearing on the motion for the issuance
of a preliminary mandatory injunction there had been no hearing held on
the question of whether petitioner's last application for renewal should be
approved or disapproved.
Respondents admit petitioner's authority to operate the radio station
mentioned heretofore but claim that in the operation thereof he had, in
violation of law, used a transmitter different from the one he was authorized
to use for the purpose; that the transmitter petitioner was authorized to use
was UNELMANCO-BCT 500 S/N-RCD-0503 which, with the approval of the
Radio Control Office, was later changed to COLLINS T.M. 400 S/N RCD-
0637, while the transmitter used by him and seized under the search
warrant already mentioned was one without any name plate or serial
number.
Petitioner denies the above allegations of the respondents and claim that
the seized radio transmitter was the COLLINS transmitter which the Radio
Control Office had authorized it to use instead of the original UNELMANCO
transmitter; that if it appeared not to have any visible name plate or serial
number, it was due to the fact that, it being a mere second hand surplus
equipment, it had to be repainted.
The fact that petitioner had been allowed to operate his radio station for so
long practically without any interference on the part of the Radio Control
Office would seem to support his contention.
True, a memorandum submitted on March 29, 1962, by Eliodoro B. Jose,
Head, Project No. 2, to the Chief, Radio Control Division, is to the effect
that, in a previous report made by him, he had stated that when he
inspected petitioner's station then located at the Capitol Technical Institute
Building he was shown a permit for the transfer of the station from Globe
Theater Building to the Capitol Technical Institute Building; that the
transmitter then being used was not the same for which the permit to
transfer was issued; that he advised petitioner to apply for the
corresponding permit to purchase, possess or construct the transmitter so
that a license may be issued for the new station; but the same report shows
that Mr. Jose had recommended that a license be issued to petitioner upon
the filing of the corresponding application; that the non-closure of radio
station DZQR, inspite of an order given to Mr. Jose to have it closed was
explained by him in another memorandum of March 26, 1962, this being
the reason presumably why the station continued to operate without
any interference on the part of the Radio Control Office. This report or
memorandum itself shows that, aside from the claim that the radio
transmitter used at the time by petitioner was not the one he was
authorized to use, the same was not objectionable in any other respect;
that its use was known and was to a certain extent tolerated by the
Radio Control Office.
That because of the seizure of the radio transmitter petitioner's station can
not continue broadcasting is undeniable. In fact, by reason of the seizure
affected in the middle of a broadcasting program, the latter had to be
discontinued. It can not be denied, therefore, that, in practical effect, the
seizure amounted to a closure of the station and/or disapproval of
petitioner's last application for the renewal of his license..
Section 3 of the Radio Control Act provides that no application for the
renewal of station or operator license shall be disapproved without giving
the licensee a hearing. This legal provision was implemented by
Department Order No. 11, series of 1950, Section 17 which provides, inter
alia, that a radio station license may also be revoked for violations of the
radio laws and regulations, local or international; provided, however, that no
such license shall be revoked without giving the licensee a hearing.
While, as already stated, petitioner's last application for renewal of license
has not been disapproved, we believe that the requirement of a hearing
applies not only if a radio license is to be revoked, but also before the
Radio Control Office may lawfully do any thing that, for all practical
purposes, would amount to such revocation because it makes it impossible
for the radio station concerned to continue broadcasting. This, precisely, is
the situation obtaining in the present case.
But respondents claim that the seizure of petitioner's transmitter was
effected lawfully because it was done pursuant to a search warrant issued
by the Court of First Instance of Manila. We perceive no force and validity
in this argument. That the seizure was made under authority of a search
warrant can not obliterate the fact that such seizure was made in violation
of the law requiring a previous hearing. The application for the issuance of
the warrant amounted, in effect, to an effort to evade the law requiring said
hearing.
While courts should exercise great care in granting preliminary mandatory
injunctions because the writ operates not merely to preserve the status quo
between the parties but to compel one of them to perform a positive act;
nevertheless, we held in Meralco vs. Del Rosario, 22 Phil. p. 433, that in
cases of extreme urgency; where petitioner's right to the writ is clear; where
considerations of relative inconvenience are strongly in his favor; where
there appears to be a willful invasion of petitioner's right, the injury inflicted
upon him being a continuing one; and where the effect of the mandatory
injunction would not be to create a new relation between the parties but
solely to re-establish a pre-existing relation between them recently and
arbitrarily interrupted by the respondent, courts should not hesitate in
granting the writ. Considering the facts obtaining in the present case,
particularly the circumstance that petitioner's inability to continue
broadcasting through his radio station affects his contractual relations with
third parties, we find it justified to grant the preliminary writ of mandatory
injunction prayed for.
LEMI vs. VALENCIA | Castro, J. (1968)
FACTS
- RA 1553 authorized petitioner Lemi to construct, maintain and operate
radio broadcasting and television station (Station DZQR). The Radio
Control Office of the Department of Public Works and Communications
issued to him a license. This license was effective for one year, that is, from
May 24, 1960 to May 23, 1961.
- On April 12, 1961, Lemi applied for renewal of the license and paid the
corresponding renewal license fee of P50. The Radio Control Office took no
action on this renewal application. On May 31, 1962, he again applied for
renewal of the license, to cover the period from May 24, 1962 to May 23,
1963, and again paid the corresponding renewal license fee. Again the
Radio Control Office took no action thereon.
- He continued operating the radio station without any interference
whatsoever from the office of the Public Works Secretary and the Radio
Control Office. As a matter of fact, a letter of the chief even requested the
licensee "to feature the many newly recorded Philippine Christmas songs."
- While the radio station DZQR was broadcasting, an agent of the Public
Works Secretary, and a radio regulation inspector of the Radio Control
Office, accompanied by agents of the PAGCOM, armed with a search
warrant, searched the radio station and thereafter seized and carried away
a radio transmitter which was being used at the time, on the pretext that it
"was without any name plate or serial number and is entirely different from
the authorized transmitter," in gross violation of the Radio Control Law.
- Lemi instituted the present original petition for mandamus with
preliminary injunction.
- The Court issued a resolution commanding the respondents to return the
radio transmitter, upon the filing of a bond of P1,000.
- Petitioner avers the ff. (among many others):
- The summary and unwarranted seizure of the transmitter "was a wanton
and deliberate disregard" of the pertinent provisions of the Radio Control
Law and the regulations promulgated thereunder providing for "due formal
hearing before a seizure or closure";
- that the transmitter "was never illegally used as it was used with full
knowledge and approval and consent of the respondents themselves ";
- and that the continued deprivation of the use of the transmitter
during the pendency of the petition would work great injustice and
irreparable damage and injury to him because he would then be
prevented from fulfilling his contractual commitments with his
numerous clientele.
- The petitioner further averred the chief radio inspector of the Radio
Control Office, inspected the station and found the equipment and
installations therein "in order and in compliance with the pertinent
requirements of radio regulations, [and] recommended the issuance of a
radio station license"; and that in spite of such recommendation, the
respondents Public Works Secretary and Chief of the Radio Control Office,
"with the evident purpose of prejudicing the operations of the herein
petitioner, unlawfully neglected the performance of their duties by
maliciously withholding the license for station DZQR already paid by the
petitioner, although the law specifically enjoins issuance thereof as a
ministerial duty after petitioner had complied with the requirements of the
law and regulations."
- Respondents in theur answer avers: that the radio transmitter was
seized "by virtue of a valid search warrant after it was clearly established ..
that the transmitter .. was illegally constructed and installed without any
previous permit".
- The respondents further averred that the renewal application was filed
only on May 15, 1962, in violation of Section 2 of Act 3846, as amended
which provides that applications for renewal of radio licenses should be
filed at least two months before the expiry dates of the licenses sought to
be renewed.
- Respondents further maintained that the petitioner not having exhausted
other available remedies in the ordinary course of law, namely, (1) a court
action to quash the search warrant, and (2) an appeal to the respondent
Secretary, the petition is prematurely filed.
- Court issued a resolution by virtue of which Court granted the writ of
preliminary mandatory injunction commanding the respondents to
return to the petitioner the radio transmitter.
ISSUE/S & HELD:
- Is the petitioner entitled to the reliefs prayed for? YES.
RATIONALE
- Section 3 of Rule 65 of the new Rules of Court authorizes the issuance of
a writ of mandamus.
- It is essential that the plaintiff has a legal right to the thing demanded and
that it is the imperative duty of the defendant to perform the act required
and that there is no plain, speedy and adequate remedy in the ordinary
course of law.
- The legal right of the plaintiff to the thing demanded must be well-defined,
clear and certain. The corresponding duty of the defendant to perform the
required act must also be clear and specific. Mandamus will not issue in
doubtful cases, as it simply commands the exercise of a power already
possessed or to perform a duty already imposed. Mandamus will lie to
compel action, or to remedy official inaction.
- Under Section 3 of the Radio Control Law, 7 the Public Works Secretary
is empowered to regulate the establishment, use and operation of all radio
stations and to issue such rules ad regulations as may be necessary.
- The exercise of the above-enumerated specific powers and duties
involves judgment and discretion on the part of the Secretary.
- A purely ministerial act or duty, in contradistinction to a discretional act, is
one which an officer or tribunal performs in a given state of facts, in a
prescribed manner, in obedience to the mandate of a legal authority,
without regard to or the exercise of his own judgment upon the impropriety
of the act done.
- If the law imposes a duty upon a public officer, and gives him the right to
decide how or when the duty shall be performed, such duty is discretionary
and not ministerial. The duty is ministerial only when the discharge of the
same requires neither the exercise of official discretion nor judgment.
- In the case at bar, the respondents Secretary and Chief of the Radio
Control Office patently neglected the discharge of the duty, under Section
3(1), to "approve or disapprove" the petitioner's applications for renewal of
the radio license.
- The respondents maintain, however, that the petitioner is not entitled
to the renewal of his license, because the first renewal application
was filed only on April 12, 1961, 41 days more or less before license
expired.
- This violation ceased to exist when it was condoned by the fact of the
previous non-observance by station operators of radio laws and regulations
of the Radio Control Office regarding filing of petitions for renewal.
- Petitioner had been allowed to operate his radio station for so long
practically without any interference on the part of the Radio Control Office.
- The respondents further maintain that in the operation of radio
station DZQR, the petitioner was using a transmitter different from the
authorized one: Court resolved this issue in our resolution of February 28,
1963, by virtue of which we granted the writ of preliminary mandatory
injunction commanding the respondents to return to the petitioner the radio
transmitter.
- The use of the radio transmitter by the petitioner having been "known and
- to a certain extent tolerated" by Radio Control Office, "the violation in
legal effect, ceased to exist."
- The respondents finally maintain that the present petition is premature
because the petitioner failed to exhaust available remedies on the
administrative level. This contention is without merit. There is no statute
providing for an appeal from an action taken by the Radio Control Office to
the Secretary of Public Works and Communications.
- And even if an appeal there be to the respondent Secretary, this remedy
is not such "adequate remedy in the ordinary course of law" as would
bar the present action for mandamus, for the acts committed by the
respondents are "patently illegal" having been performed in violation
of the Radio Control Law and the rules and regulations promulgated
thereunder, and the immediate return of the transmitter demanded
"urgency of judicial intervention" as its seizure completely
immobilized the radio station DZQR and prevented the petitioner from
complying with his contractual commitments.
DISPOSITIVE: The writ of preliminary mandatory injunction issued is made
permanent.
MMDA vs Garin
GR No. 130230 April 15, 2005
Chico-Nazario, J.:
FACTS:
Respondent Garin was issued a traffic violation receipt (TVR)
and his drivers license was confiscated for parking illegally.
Garin wrote to then MMDA Chairman Prospero Oreta
requesting the return of his license and expressed his
preference for his case to be file in Court. Without an
immediate reply from the chairman, Garin filed for a
preliminary injunction assailing among others that Sec 5 (f) of
RA 7924 violates the constitutional prohibition against undue
delegation of legislative authority, allowing MMDA to fix and
impose unspecified and unlimited fines and penalties. RTC
rule in his favor, directing MMDA to return his license and for
the authority to desist from confiscating drivers license without
first giving the driver the opportunity to be heard in an
appropriate proceeding. Thus this petition.
ISSUE:
Whether of not Sec 5(f) of RA 7924 which authorizes MMDA to
confiscate and suspend or revoke drivers license in the
enforcement of traffic rules and regulations constitutional?
RULING:
The MMDA is not vested with police power. It was concluded
that MMDA is not a local government unit of a public
corporation endowed with legislative power and it has no
power to enact ordinances for the welfare of the community.
Police power, as an inherent attribute of sovereignty is the
power vested in the legislature to make, ordain, establish all
manner of wholesome and reasonable laws, statutes and
ordinances either with penalties of without, not repugnant to
the constitution, as they shall judge to be for good and welfare
of the commonwealth and for subjects of the same.
There is no provision in RA 7924 that empowers MMDA or its
council to enact ordinance, approve resolutions and
appropriate funds for the general welfare of the inhabitants of
Metro Manila. It is an agency created for the purpose of laying
down policies and coordinating with the various national
government agencies, Peoples Organizations, NGOs and
private sector for the efficient and expeditious delivery of
services. All its functions are administrative in nature.