ELISEO B. LEMI, PETITIONER, VS. BRIGIDO VALENCIA, SECRETARY OF PUBLIC WORKS AND COMMUNICATIONS; ROBERTO M. SAN ANDRES, CHIEF, RADIO CONTROL OFFICE; ALFREDO M. CARGO (SUPPOSEDLY …

Republic Act 1553, approved on June 16, 1956, authorized the petitioner Eliseo B. Lemi to construct,
maintain and operate radio broadcasting and television stations.  On June
8, 1960 the Radio Control Office of the Department of Public Works
and Communications issued to him license 5931 to construct, maintain and
operate radio station DZQR.  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 to cover the
period from May 24, 1961 to
May 23, 1962, 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 dated December 7, 1962 of the chief of the latter office
requested the licensee “to feature the many newly recorded Philippine
Christmas songs.”

In the morning of January 11, 1963, while the radio station DZQR
was broadcasting, Alfredo M. Cargo, an agent of the Public Works Secretary, and
Heraclio San Juan, a radio regulation inspector of
the Radio Control Office, accompanied by agents of the Presidential Anti-Graft
Committee (PAGCOM), armed with a search warrant issued by the Court of First
Instance of Manila, 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.

On January 19, 1963 Lemi instituted the
present original petition for mandamus with preliminary injunction, against
Public Works Secretary Brigido Valencia, Chief
Roberto San Andres of the Radio Control Office, Alfredo M. Cargo, Heraclio San Juan, Chairman Conrado
Cajator of the PAGCOM and the latter’s agents,
praying that this Court (1) issue a preliminary mandatory injunction directing
the respondents to return immediately the radio transmitter to him, and, after
due hearing on the merits, to make the writ permanent; and (2) order the
respondents to issue without delay the renewal license applied for by him.

The petitioner averred that 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 search warrant was pro­cured “by means
of misrepresentation and deceit” on the part of the respondents’ agents,
who made it appear “that a criminal charge or some sort of charge had been
previously filed against the petitioner when x x x no such charge is known to petitioner up to this
time;” that the transmitter “was never illegally used as it was
(used) with full knowledge and approval and consent of the respondents
themselves;” that the said transmitter was not capable of transmitting
messages abroad; that being “attached to the radio station permanently as
an indispensable structure thereof without which broadcast could not
have been possible,” the trans­mitter is “real property” and
“not subject of seizure warrant;” that the seizure thereof was
“actually inspired by vindictiveness and ill-will arising from the
criticisms aired by a paying commentator x x x R.T. Jocson, in his daily radio
program, ‘So the People May Know’, of the abuses of the Chief of the Radio Control
Office and the present administration x x x further aggravated by the refusal of petitioner to accede
to the repeated requests of respondent Roberto San Andres to refrain from
testifying in the administrative charges x x x which x x x
R. T. Jocson x x x previously filed against respondent Roberto San Andres,
and to bar the said commentator from the air;” 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 that sometime after Novem­ber 3,
1961, after he had filed the first application for renewal of the radio station
license, Eliodoro L. Jose, 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 inspite 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.”

We gave due course to the petition and ordered the respon­dents
to submit their answer and show cause why a writ of preli­minary mandatory
injunction should not be issued.

In their answer to the petition, the respondents claimed that the
radio transmitter was seized “by virtue of a valid search warrant after it
was clearly established x x x
that the transmit­ter x x x
was illegally constructed and installed without any previous permit;” that
the seized transmitter “is powerful enough to transmit messages
abroad;” that no misrepresentation was committed in securing the search
warrant as “a criminal charge has already been filed against the
petitioner with the Office of the City Fiscal for violation of Radio Station
and Communications Law, docketed as I.S. No. 1689 and scheduled for hearing x x x on Jan­uary 31, 1963; and
that the transmitter is subject to seizure as it is movable property.”

The respondents further averred that although license 5931
expired on May 23, 1961, 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; that mere payment
of the corresponding renewal license fee does not in itself constitute a
renewal of the radio station license; that the renewal license was withheld
because the petitioner was using a transmitter “without any nameplate or
serial number,” different from the one authorized by the Radio Control
Office which initially was an “UNELMANCO-BCT 500 S/N RCD-0503” and
later authorized to be substituted by a “COLLINS T.M. 400 S/N
RCD-0637;” that the use of the unauthorized transmitter is in gross
violation of section 1-A of Act 3846, as amended; that the issuance of a
license to operate a radio station involves the exercise of judgment and
discretion; and that the only specific legal duty of the respondent Public
Works Secretary is to hold a hearing in case he disapproves a license, pursuant
to section 3(1) of Act 3846, as amended.

The 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.

The petitioner’s rejoinder recited that when he filed the first
application for renewal on April 12, 1961, the period fixed in license 5931
(May 23, 1961) had not yet expired; that it has been a long established and
existing practice that once the renewal license fee is accepted, the acceptance
is equivalent to a permit to conti­nue operating during the pendency
of the issuance of the renewal license until the disapproval of the application
for renewal, which may take effect only after due notice and hearing; that if
the transmitter “has no visible name plate, it was because the same was
repainted to conform with good engineering practice, it being a secondhand
surplus equipment;” that the search warrant is null and void ab initio, the
respondents having admitted “the absence of any formal information against
the petitioner before the filing of an application for a search warrant with
the Court of First Instance of Manila;”^[1]
that the respondents’ “refusal to renew x x x license for an unreasonable length of time is equivalent
to a dis­approval of the application itself and/ or revocation of the old license
without due notice and hearing,” in violation of section 3(1), supra,
and section 17 of Department Order 11, series of 1950; that a petition for
mandamus can be availed of even without exhausting available administrative
remedies; and that in matters of this nature, this Court has concurrent
jurisdiction with courts of first instance, pursuant to section 5 of Rule 67 of
the new Rules of Court.

Acting on the manifestation filed by the petitioner on Feb­ruary 20, 1963, we issued a
resolution on the following February 28, commanding the respondents to return
the radio transmitter, upon the filing of a bond of P1,000.

Is the petitioner entitled to the reliefs
prayed for?

Section 3 of Rule 65 of the new Rules of Court authorizes the
issuance of a writ of mandamus when “any x x x person unlawfully neglects the performance of an act
which the law specifically enjoins as a duty resulting from an office, trust,
or station, or unlawfully excludes another from the use and enjoyment of a
right or office to which such other is entitled, and there is no plain, speedy
and adequate remedy in the ordinary course of law.” It is essential,
therefore, for a writ of mandamus to issue, 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.^[2]
The legal right of the plaintiff to the thing demanded must be well-defined,
clear and certain.^[3]
The corresponding duty of the defendant to perform the required act must also
be clear and specific.^[4]
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.^[5]
Mandamus will lie to compel action, or to re­medy official inaction.^[6]

Under section 3 of the Radio Control Law,^[7]
the Public Works Secretary^[8]
is empowered to regulate the establishment, use and operation of all radio
stations and of all forms of radio communication and transmission within the Philippines,
and to issue such rules and regulations as may be necessary for the pro­per
implementation of the law.^[9]
In addition,

“(k) He is hereby empowered to approve or to disapprove any application
for the construction, installation, establishment or operation of a radio
station;

“(l) He may approve or disapprove any application for renewal
of station or operator license: Provided, however, that no application
for renewal shall be disapproved without giving the licensee a hearing;

“(m) He may, at his discretion, bring criminal actions against
violators of the radio laws or the regulations and confiscate the radio
apparatus in case of illegal operation; or simply suspend or revoke the offender’s
station or operator licenses, or refuse to renew such licenses; or just repri­mand
and warn the offenders.”

The exercise of the above-enumerated
specific powers and duties involves judgment and discretion on the part of the
Secretary.  Discretion,

“when applied to public functionaries,
means a power or right conferred upon them by law of acting officially, under
certain circumstances, according to the dictates of their own judgments and
consciences, uncontrolled by the judgments or consciences of others.  .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, with out regard to or the exercise of his own
judgment upon the propriety or 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 or
judgment.”^[10]

Under section 9 of the Radio Control Law, the Public Works
Secretary is authorized “to create a Radio Regulation
Section, Division or Office which shall take charge of carrying out the
provisions of this Act and of the regulations prescribed by him, or to delegate
temporarily the duties herein conferred upon him and the enforcement of the
regulations prescribed by him, to any bureau or office under his department,
subject to his general supervision and control.”

1.       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), supra, to
“approve or disapprove” the petitioner’s applications for renewal of
the radio license.  On April 12, 1961 the latter filed the
first application for renewal of license 5931, and paid the corresponding
license fee of P50.  The Radio Control
Office which is directly under the “supervision and control” of the
Public Works Secretary took no action on this application.  On May
31, 1962 the petitioner filed another application for renewal of
his radio license and paid the corresponding renewal license fee.  No action was likewise taken on this
one.  And despite the continued operation
of the radio station since May 23,
1961, the date license 5931 expired, there was no interference
whatsoever from the office of the respondent Secretary and the Radio Control
Office.  In point of fact, such continued
operation was officially tolerated, as can be gleaned from the letter dated
December 7, 1962 sent by the Chief of the Radio Control Office to the
petitioner, at the behest of the respondent Secretary, requesting the licensee “to
feature the many newly recorded Philippine Christmas songs,” as a special
public feature in the radio programs of station DZQR.

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 5931
expired (on May 23, 1961), and the second renewal application was filed only on
May 31, 1962, 8 days more or less after the period supposedly covered by the
first application for renewal was to expire (on May 23, 1962), in violation of
section 2 of Act 3846, as amended, which requires that “if a renewal is
desired, the licensee shall submit application x x x at least two months before the expiration
date of the license to be renewed.”

We see no obstacle to the application to the case at bar of our
ruling in Bolinao Electronics Corporation
et al. vs. Valencia,
et al.^[11]
There this Court made the following pronouncements:

“But the only reason relied upon by the res­pondents to be the
ground for the disapproval of the applications, is the alleged late filing of
the petitions for renewal.  The notices
sent to petitioners x x x
alleged only one supposed violation which would justify disapproval.  But petitioners claim that this violation has
ceased to exist when the act of late filing was condoned or pardoned by respon­dents
by the issuance of the circular dated July
24, 1962, which in its pertinent part, reads:

“‘CIRCULAR TO:

ALL RADIO STATIONS, RADIO DEALERS, MANUFACTURERS AND RADIO
TRAINING SCHOOLS

‘It has come to the attention of this Office that a great number of
radio station operators have been conducting their operations resorting to
practices which are in violation of existing radio laws and regulations, such
as:

xx           xx           xx

‘6.  Late submission of applications for new and
renewal licenses.

‘It is now the intention of this Office to correct whatever laxity
which in the past has encouraged this illegal practice, to strictly enforce the
radio regulations and to take drastic action against violators of these
regulations.

‘You are, therefore, requested to examine closely your operating
practices, permits and licenses and take remedial measures as soon as possible
but not later than August 10, 1962.

“(SGD.)
ROBERTO M. SAN ANDRES

Radio Regulation Chief’

“It seems clear that the foregoing circular sustains
petitioners’ contention that the previous non-observance by station operators
of radio laws and regulations of the Radio Control Office regarding filing of
petitions for renewal, among others, was condoned if the necessary steps were
taken to correct their records and practices before August 10, 1962.  It is not denied that herein subject
applications for renewal were all made before said date, or even before the
issuance of the circular itself on July
24, 1962.  The
lone reason given for the in­vestigation of petitioners’ applications,
i.e., late filing thereof, is therefore no longer tenable.  The violation, in legal effect,
ceased to exist and, hence, there is no reason nor need for the present
investigation.  The raison d’etre for it has disappeared.  Its continuation will serve no useful pur­pose
in contemplation of the law authorizing inves­tigations in connection with applications
for renewal of permit.”

2.       The respondents
further maintain that in the operation of radio station DZQR, the petitioner
was using a transmitter different from the authorized one; that the authorized
transmitter was an “UNELMANCO-BCT 500 S/N RCD-0503” which, upon prior
approval of the Radio Control Office, was later changed to a “COLLINS T.
M. 400 S/N RCD-0637;” that the transmitter which was seized on January 11,
1963 was “without any name plate or serial number,” in gross
violation of section 1-A of Act 3846, as amended, providing that “no
person x x x shall possess
or own a radio transmitter x x x
without registering the same with the Secretary of Commerce and Industry, x x x and no person x x x shall construct x x x radio transmitter x x x without a permit issued by
the Secretary of Commerce and Industry;” ” and that in the exercise
of his discretionary power under section 3(m), supra, the respondent
Secretary filed a criminal action against the petitioner for such violation
with the City of Manila, docketed as I.S. No. 1689; and that the radio
transmitter was seized on the strength of a search warrant issued by the Court
of First Instance of Manila.

We 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. 
We said in that resolution that

“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, in
spite 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.”

The use of the radio transmitter by the
petitioner having been “known and – to a certain extent – tolerated”
by the Radio Control Office; “the violation in legal effect, ceased to
exist.”

No validity can be accorded to the respondents’ assertion that,
in seizing the transmitter, the respondent Secretary was merely exercising his
confiscatory power under section 3(m), supra.  This Court in no certain terms declared in
its resolution of February 28, 1963 that the seizure, though made under
authority of a search warrant, cannot obliterate the fact that such seizure
violated section 3(1), supra, which provides that “no application
for renewal shall be disapproved without giving the licensee a hearing,
” and section 17 of Department Order 11 which provides that no “radio
station license may be revoked for willful violations of the radio laws and
regulations, local or internatio­nal x x x without giving the licensee a hearing;” that
the application for issuance of the search warrant and the ultimate seizure of
the radio transmitter in effect amounted to an attempt to evade the requirement
of such hearing; and that the seizure effected made it impossible for the radio
station to continue operating.

The requirement of a hearing as provided by the Radio Control Law
and the rules and regulations promulgated thereunder,
is founded on the fundamental principle that no person shall be deprived of his
property without due process of law.  A
franchise, like the one granted by R.A. 1553 to the petitioner, is property
entitled to constitutional protection.^[12]
A “radio license is an operating authority of importance involving primarily
the inte­rest of the public,”^[13]
and “valuable rights and investments made in reliance on a license x x x should not be destroyed x x x except for the most
compelling reasons.”^[14]

3.       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 if an appeal
there be to the respondent Secretary, by virtue of the latter’s power of general
supervision and control” over the Radio Control Office,^[15]
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,”^[16]
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”^[17]
as its seizure completely immobilized the radio station DZQR and prevented the
petitioner from complying with his contractual commitments.

4.       On the matter of the ex
parte motion of the petitioner that the
respondents be cited for contempt, we fully concur in the finding of our then
1st Deputy Clerk of Court & Reporter, contained in his report of January
18, 1964, that although the conduct of the respondents in “not
faithfully” complying with the terms of the writ of preliminary mandatory
injunction issued by this Court on March 4, 1963, constitutes “reckless
imprudence,” such con­duct “may not be as grave as contempt as it
would had they actually refused to return the transmitter.”

ACCORDINGLY, the writ of preliminary mandatory injunction
issued on March 4, 1963 is
made permanent.  Although there was clear
official neglect and unwarranted inaction on the part of the respondents in the
matter of the issuance of the renewal licenses applied for in the first and
second renewal applications, the periods covered by the said applications have
long expired.  The pertinent relief
prayed for is now a matter that is obviously moot and academic.  No pronouncement as to costs.

Concepcion, C.J., Dizon,
Makalintal, Zaldivar,
Sanchez, Fernando, and Capistrano, JJ., concur.

Reyes, J.B.L., J., concurs in
separate opinion.

^[1] The
initiation of a criminal prosecution is not essential for the issuance of a
search warrant.  (Philips vs.
Municipal Mayor and Chief of Police of Caloocan,
L-9183, May 30, 1959).

^[2]
Gonzales vs. Board of Pharmacy, 20 Phil. 367, 375.

^[3] Villamor, et al. vs. Lacson,
et al., L-15845, Nov. 28, 1964.

^[4] Llanto vs. Mohamad Ali Dimaporo, et al., L-21905, March 31, 1966.

^[5] Alzate, etc. vs. Aldana,
etc., et al., L-18085, May 31, 1963
and cases cited therein.

^[6]
Gonzales vs. Board of Pharmacy, supra; Guanio
vs. Fernandez, 55 Phil. 814, 821; Sanson vs.
Barrios, 63 Phil. 198, 204; Hipolito vs. The
City of Manila, et al., 87 Phil. 180; Gocheco
Brothers, Inc. vs. Ycasiano, et al., L-5999,
March 20, 1954; Alzate vs. Aldana,
etc., et al., supra; Bernabe vs.
Bolinao, et al., L-22000, Nov. 29, 1966.

^[7]
Act 3846, as amended by Commonwealth Acts 365 and 571, and further amended by
R.A. 584.

^[8]
The Secretary of Commerce and Industry was replaced by the Secretary of Public
Works and Communications, pursuant to section 20 of Executive Order 392 and
section 2 of Department Order 89.

^[9]
On January 1, 1951 the
Public Works Secretary promulgated Department Order 11, series of 1950, which
took effect on January 1, 1951.  This Department Order is entitled “General
Rules and Regulations governing the construction, installation, establishment
or operation of radio stations and the possession or ownership, construction or
manufacture, purchase, sale and transfer of transmitters or transceivers in the
Philippines.”

^[10] Sanson vs. Barrios, supra.

^[11] L-20740,
June 30, 1964.

^[12]
2 Tañada & Carreon,
Political Law of the Philippines, 1962 ed., p. 30, citing Terrace vs.
Thompson, 263 U. S. 197; Campbell vs. Holt, 115 U.S. 620.

^[13]
Ranger vs. Federal Commun. Com. [1961], 42 PUR
3d, 297 F2d 782.

^[14] Churchill
Tabernacle vs. Federal Commun. Com. [1947], 69
PUR NS 185, 81 US
App DC 411, 160 F2d 255.

^[15]
Sec. 8, Act 3846, as amended.

^[16]
Gonzales vs. Hechanova, etc., et al., L-21897,
Oct. 22, 1963, and cases
cited therein; Abaya vs. Villegas, et al., L­25641,
Dec. 17, 1966 and cases
cited therein.

^[17]
Gonzales vs. Hechanova, etc., et al., supra.

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