3/4/25, 11:23 PM G.R. No. L-1800 | Primicias v.

Fugoso

EN BANC

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

CIPRIANO P. PRIMICIAS, General Campaign Manager of Coalesced Minority

Parties, petitioner, vs. VALERIANO E. FUGOSO, Mayor of City of Manila,
respondent.

DECISION

FERIA, J : p

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."
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,
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"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:
"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."
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 vs. 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, . . ."

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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 vs. 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 vs. 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 vs. Dering, 84 Wis., 585; 54 N. W.,
1104, held the following:
"The objections urged in the case of City of Baltimore vs. 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."
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:
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". . . 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."
In Rich vs. 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 vs. 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
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first obtaining a permit from the Chief of Police of the City of Walsenburg so to do," held the
following:
"[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, vs. 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 vs. 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 vs. Criffin, 303 U.S., 444, 451; 58 S. Ct., 666, 668, 82 Law. ed., 949 [953];
Hague vs. Committee for Industrial Organization, 307 U.S., 496, 515, 516; 59 S. Ct., 954, 963,
964; 83 Law. ed., 1423 [1436, 1437]; Scheneider vs. State of New Jersey [Town of Irvington];
308 U. S., 147, 160; 60 S. Ct., 146, 150; 84 Law. ed., 155 [164]; Cantwell vs. 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 vs. 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 vs. Troter,
136 Ill., 430; 26 N. E., 359. See, also, Anderson vs. City of Wellington, 40 Kan. 173; 19 P., 719;
2 L.R.A., 110; 10 Am. St. Rep., 175; State ex rel. vs. Dering, 84 Wis., 585; 54 N. W., 1104: 19
L. R. A., 858, 36 Am. St. Rep., 948; Anderson vs. Tedford, 80 Fla., 376; 85 So., 673; 10 A. L.
R., 1481; State vs. 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."
The Supreme Court of the United States in Hague vs. 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
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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:
". . . 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."
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 vs.
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
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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 vs. 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."
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 vs. 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."
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 vs. 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 vs. California, 71 U. S. (Law. ed.), 1105-1107:
"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
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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 vs. 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.

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