RoLANDO HEPHONY

R.

ARBUES

B.

PADERNAL

CANCIO C. GARCIA *

I. PUBLIC OFFICERS A. De Facto Officers. A de facto officer has been defined as one who is not fully invested with all the powers and duties concededto the office, but is exercising the office under some color of right. The de facto doctrine was introduced into the ],a.was Q matter of policy and necessity, to protect the interests of the public and individuals, where those interests were involved in the official acts of persons exercising the duties of an office without being La:wful officers. This year, the Supreme Court had occasion to pass upon questions concerning de facto officers, applying the same age-old principles.
1. Right cannot be que.stioned coUaterally; remedies-

The basic rule is that the right of a de facto officer to exercise the official functions may .not be questioned collater,ally.1 Thus, in Acain v. Board of CanvaBsers,2 'Wherethe candidates assumed office, upon authority of the Commission on Elections, they have a color of title to the offices held by them ,and, accordingly, they enjoy the rights of a de facto officer, among which is that their title to said offices may not be contested except directly, by writ of quowar-ranto and/or by election protest, not indirectly by questioning the regularity of their proclama.tion. 2. Can1lJOt claim reinstatement as of rightWhere the temporary appointments of non-civil service eligibles were recalled by the appointing officer and consequently had never been approved or authenticated by the Civil Service Commissioner as preseribed by section 682 of the Rev. Adm. Code, they may only be consideredas de facto officers, having acted, prior to their formal separatio.n, under color of appointment, and henc.e they cannot claim for reinstatem~nt as a matter of right.3 3. May receive salary for services actually rendered-In cases where there is no de jure officer, a de facto officer, who, in. good faith has had possession of the office, has discharged the duties pertaining thereto, is legally entitled to the emolumentsof the office,and may in an appropriate action recover the salary, fees, and other compensation attached to the office. This doctrine is undoubtedly, supported on equitable grounds, since it seems unjust that the public should benefit by service of ,an officer de facto and then be freed from aU liability to pay anyone for such services.4
Member, StUdent Editorial Board, PHIL. LAW JOURNAL, 1960-61. 1 Tayco v. Capistrano, 53 Phil. 866. G.R. No. L.16445, promulgated May 23, 1960; Govt. v. Binangonan, 28 Phil. 116; Meehem. Puhlic Officers. see. 344. Injunction is not an appropriate remedy for the removal of an offtcer or the reinstatement of one removed without cause. (Silen v. Vera, 64 Phil. 868). I Montero v. Castelisnes. G.R. No. L-12694, promulgated June 30, 1960. Petterson v. Benoon, 112 Pac. 801, 32 LRA (NS) 949. Although a writ . is of the contrary opinion. He states that an officer de faeto is not entitled as such to an,. right enforceable

In Oui V. Ottiz,f5 the Court held that where a statute providea that an appointee may, pending approval of his appointment by the President, assume office and receive saJ.aryfor services actually rendered, he may, in that duration until the appointment is finally acted upon favorably or unfavorably, be considered as a de facto officer and entitled to salary for services rendered.
4. Acts of de facto officer moI1/be 'Yatijie&-

An officer whose leg;altitle to the office he holds is clear and complete is ,a.nofficer de jure. One who exercises the functions of an office without any color of title to it or any reputation whatever that he is the officer he claims himself to be is a mere intruder. The acts of an intruder are totally void. A sort of intermediate type stands between these two holders of public officethe de facto officer.6 His acts are not wholly void, but m.ay be the subject of ratification to make them produce valid effects. In CodiUa v. MO/I'tinz,T it appears that on, February 24, 1956, before leaving for Negro!! Occidental, the mayor of Tagum, Dav,ac,designated the vice mayor to act in his place effective January 25, 1956 until further ,advice. The vice mayor in turn fell sick and designated the ranking councilor as acting mayor. The ranking councilor,who himself was not in good health, designated respondent Jose Martinez, the third r,g.nkingcouncilor, to act as mayor. The first official act .as acting mayor of respondent Martinez was to separate petitioners from the service as policemen of the municipality. Petitioners filed the present petition for mandamus to compel respondents to reinstate them. The trial court dismissed the petition holding that the separation of petitioners was made in accordance with law. Petitioners .appealed. Petitioners questioned the designation made by the ranking councilor of the third ranking councilor as acting mayor. According to petitioners, the designation of an acting mayor should be made by the provincial governor with the consent of the provincial board. Held: The designation of respondent :Martinez as .actingmayor is not entirely void or one that would make him a usurper. At most he is a de facto 'Officerwhose acts may be given validity in the eyes of the law. His acts made 'Within the scope of authority vested by law in the office of mayor are valid. Besides all the official acts of respondent Martinez were subsequently endorsed .and ratified by the incumbent mayor when he retunned to office. This ratification served to cure any legal infirmity the acts of respondent Martinez may have suffered because of irregular designation. The Court also said that since petitioners were merely given temporary appointments for the reason that' they do not have civil service eligibility, their status as employeeswas wholly dependent upon the grace of the ruling power. B. Members of Congress; suspension ofOur Constitution, under section 15 of Article VI,TIenshrines parliamentary immunity which is a fundamental privilege cherished in every legislative assembly of the democr.aticworld. As old as the English Parliament, its purpose
in the courts. Thus he (de faeto offieer) "may not sue for the recovery of salary by a mere sbowin.1r tbat he has rendered serviees as a de faeto offieer; for the right to emoluments goes on!:r with a person's legal title to the offiee." (SINCO, PHIL. POLlTlCAL LAw, 1954 Ed . p. 448). I q.R. No. L-13753, promu1lrated April 29, 1960. SINCO, PHIL. POLmCAL LAW, PP. 444-445. To eonstitute a de faeto offieer, there must be an offlee baving a de faeto existen.,e or at least one reeognized by Jaw and the elaimant must be .in ac1>UaJ po8session of the offiee under eolor of title or authority. (State v. Bablo, 20 SE (2d) 683 eited In CodiJla v. Marty,E'Z, infrn) 7 G.R. No. 1-14569, promu1lrated November 23, 1960. 71 It provides: '"I'he Senators and Membe.. of the House of Representatives shall in all eases exeept treason, felony, and breaeh of tbe peaee, be privileged from arrest during their attendance at tbe sessions of the Congress, and in going to and returning from the same; ami for _ epe "h or deb4t th""""n, th"ll shull not b QU88tio'ned in any oth ..plac..... (Underlining ours)

"ia to enable .and encourage a representative of the public to discharge his public trust with firmness and success" for "it is indispensably necessary that he should enjoy the fullest liberty of speech, and that he should be protected from the resentment of every one, however pCJlWerful, to whom the exercise of that liberty may occasion offense/,g Such immunity has come to this country from the practices of Parli.ament as construed and applied by the Co,ngressof the United States. This principle w.as invoked in the case of Osrmeiia 1J. Pendatun 9 as one of the grounds for setting aside the resolution suspending petitioner from his seat in Congress. There is no question that Congressman Sergio Osmefia, Jr., in a privilege speech delivered before the House of Representatives, made the serious imputations of bribery ag13.inst the President of the Philippines which are quoted in Resolution No. 59 of said House, and that he refused to produce before the House Committee created for the purpose, evidence to substantiate such imputations. There is also no question that for having made the imputations and for failing to produce evide.nein support thereof, he was, by resolution of the House suspended from office for a period of fifteen months for serious disorderly behaviour. The Oourt held that parliamentary immunity guarantees the legislator complete freedom of expression without fear of being made responsible in crimin,al or civil actions before the courts or any other forum orutside of the Congressional Hall. But it does not protect him from responsibility before the legislative body itself whenever his words and conduct are considered by the latter disorderly or unbecoming a member thereof. For unparliamentary conduct, members of Congress could be cens1:!red, committed to prison, suspended, or even (>xpelled by the votes of their colleagues. The House of Representatives is the judge of what constitutes disorderly behaviour .among its members. The Court refused to assume the pCJlWer to determine whether Osmefia's conduct constituted disorderly behaviour on the theory of separation of powers. The court also held that the Alejandrino case, which the suspended legislator invoked as a precedent, is no longer valid. Senator Alejandrino, being appointive and not an elective official, could not be removed by the Senate, whose powers were stil11imited under the Jones Law. Whereas today, the court now adds, Congress is vested, under the Republic, with prerogative to suspend a member according to its own rules.11D C. Provincial Fiscals; duty to represent municipality in court; remedies of municipality where such officer f.ails!to actUnder the Rev. Adm. Code,lilthe provincial fiscal is the legal adviser of the mayor and council of the various municipalities of a province and it is his duty to represent the municipality in any court except when he is disqualified by law, in which ca.se the municipal council may engage the services of a special attorney. According to the case of Enrique.z, Sr. 1J. Gitmenez,u the provincial fiscal is disqualified to represent in court the municipelity if and when original jurisdiction of the case involving the municipality is vested in the Supreme Court; when the municipality is a party .adverse to the provincial government or to some other municipality in the province; 13 and when in the
Tenney Y. Brandhove, 841 U.S. 867. G.R. No. L-17144. October 28. 1960 Two justices, however, penned their the cue. Survey In Constitutional Law u Sections 2241, 1682, and 1683. 12 G.R. No. L-12617, promulgated April IS See Reyes v. Cornlsta, 49 O.G. 931; G.R. No. L-6528. May 25. 1958.

own dissenting opinions. For further for 1960, PHILIPPINB LAw JOUBNAL. 29, 1960. Mun. ot Boeaue and Provo of Bulaean

dlseusslon

of

Y.

Maftotot,

case involving the municipality, he, or his wife, or child, is pecuniarily involved as heir, legatee, creditor or otherwise.14 The fact that the provincial fiscal in. the case at bar was of the opinion that Republic Act No. 1383 (which the municipal council is contesting) was valid and constitutional, and, therefore, would not be in a position to prosecute the case of the municipality with earnestness and vigor, could not justify the act of the municipal council in engaging the services of a special counsel. Bias or prejudice and animosity or hostility on the part of the fisc,a.lnot based on any of the conditions enumerated in the law and the Rules of Court do not constitute a legal and valid excuse for inhibition or disqualification.~ And unlike a practising lawyer who has the right to decline employment, a fisc,al cannot refuse the performance of his functions on grounds not provided for by law without violating his oath of office. Instead of engaging the services of a special counsel, the municipal council !ffiouldhave requested the Secretary of Justice to appoint ,an acting provincial fiscal in. place of the provincial fiscal who had declined to handle and prosecute its case in court, pursuant to section 1679 of the Revised Administrative Code. Petitioner claims, however, that it could not do this because the Secretary of Justice, who has executive supervision over the Government Corpor,ate Counsel who represented the NAWlASAin the case filed against it by the municipality and direct supervision .and control over the provincial fiscal, would be placed in an awkward and absurd position of having control of both sides of the controversy. Held: This contention is untenable. Section 83 of the Rev. Adm. Code as ,amendedby Exec. Order 392, series of 1950, provides that the Secretary of Justice shall have executive 8uve'rviBion over the Government Corporate Counsel and supervision and cont'l"ol over provincial fiaws. Citing Mun.da:no v. SilVQlM,16 the court stated:
"Supervision differs from control. The former means overseeing Or the power of ~ official to see that subordinate officers perform their duties. If the latter fall or nC!lrlect to fulfill them the former may take such action or step as prescribed by law to make them perform their duties. Control, on the other hand. means the power of an officer to alter or modify or nullify or set aside what a subordinate officer had done in ~ performance of his duties. and to substitute ~ judgment of the former for that of the latter."

The fact that the Secretary of Justice had, on several occasio;ru;', upheld the validity ,and constitutionality of Rep. Act 1383 does not exempt the municipality of Bauan from requesting the Secretary of Justice to detail a provincial fiscal to prosecute its case. In the present case, since the services of the petitioner as special counsel for the municipality was engaged by the municipal council and the mayor without ,authority of law, the Auditor General was corxect in disallowing in ,audit the petitioner's claim for payment of attorney's fees. It should be noted, however, that under the Local Autonomy Act, (R.A. 2264) municipal councils of municipalities and regularly organized municipal districts may create a legal division or office to be headed by an attorney-at-law appointed by the mayor with the approval of the council. But a member of the cour.cilwho is a lawyer may be appointed municipal attorney with no further compensation.
14 Sec. 13, Rule 116 and sec. 1. Rule 126. Rules of Court. :Ill Cj. Benusa v. Torres. 66 PhiL 737; People v. Lopez, 78 Phil. 286 . 51 O.G. 2884, 2888.

D. Abandonment of office. In Magana. v. Audiw-r General et al.,lT it appears that appellant's position ,as Field Auditor was abolished as an economymeasure. He was subsequently offered and did accept with reservation the position of Inspector in the office of the Auditor in the respondent NAMARCO. Held: It constituted abandonment of his former office. The fact that appellant had made a reserva.tion (regarding the prosecution of the present case) in his acceptance of the new position in the NAMARCO is of no moment, because, once ,a government employee accepts a new position, he loses his right to the old office. Moreover, an appointee cannot impose his own conditions for the acceptance of a public office. He may accept or decline it. However, in Tan v. Gimenez,18 a different holding was made. Petitioner was ordered to resign from the service with prejudice to reinstatement purlluant to the decision of the Commissionerof Civil Service and by virtue thereof was prevented from exercising the functions of his position and receiving the corresponding compensationt.herefor. The faet that during the time his appeal to the Civil Service Board of Appeal!!was pending and being deprived of his salary, he sought and found employment in another branch of the government, doe.! n'Ot constitute abandonment of his former position. He had, according to the court, to find means to support himself and his family during that pl'lriod. II. CIVIL SERVICE A. Preventive Suspension DislwneBty, oppre88ion and misconduct G6 grounds fO'1'preventive 8U8pensian of appointive officer or employee need nD,t have relation to pe'rformanee of dutyIn the case of Nera v. GaJrcia et 0),.,1'11 it appears that one BienvenidoNera, a civil service eligible, was at the time of his suspension, serving as clerk in the Maternity and Children's Hospital, a government institution under the supervision of the Bureau of Hospitals and Department of Health. In the course of his employment,he served as m.anager and cashier of an association of the employeesof the institution, and as officer he was supposed to have under his control funds of the association. On May 11, 1956, a criminal complaint for malversation was filed againost him for allegedly misappropriating funds of the association. An administrative action was filed against him also, and he was subsequently suspended from the service with the .approval'of Garcia, the Secretary of Health. Nera contends that his suspensioR was illegal, because assuming that he was guilty of malversation of the fu.nds of the association, nevertheless, said i:aegularity had no connection 'With his duty ,as clerk of the Maternity and Children's Hospital. The court, in turning aside the contention of Nera, exami.ned Section 34 of the Civil Service Law of 1959 (Rep. Act No. 2260) which provides:
. . With the approval of the proper head of Department, the Chief of a bureau or office may llkewlse preventively suspend any subordinate officer or employeein bls bureau or under hlB authority pending an Investigation, if the eharge aplnst Buebofficer
11 G.R. No. 1.-12180, prom~ated April 29, 1960. '" G.R. No. L-12525.promulgated February 19. 1960. G.R. No. L-13169,promulgated January 30, 1960.

or employee involves diBlwnestlJ. OPP,"""BUm. 0," g",,"'6 miBc<mdt<ct. or neglect in the performance of duty, or if there are Btrong reaoonB to believe that the reopondent i. JrUlIty of chargeo which would warrant his removal from the service." (Underlining oura).

This section introduced certain innov,ationsto section 694 of the Revised Administrative Code20 which formerly govemed the matter of preventive suspension of employeespending their investigation. Ever observant of punctuation marks in the law, the court observed that the provisions of the Civil Service Act of 1959 introduced a sm,all change into section 94 of the Rev. Adm. Code by placing a comma after the words "grave misco,nduct",so that the phra.se "in the performance of duty", instead of qualifying "grave misconduct 'Orneglect", as it did under sec. 694, now qualifies only the last word "neglect". making clear the legislative intent that to justify suspensio,n,when the pe-rsO'ncharged is guilty me-rely of 7I,.6gLect, the iSi!llme must be in the performa:rree of duty; that where he is charged with dishonesty. oppression, or gr(1fl}emisCO'J'U1,uct, theiSe need have no relation to the performance of his duty. Nera was guilty of acts involving grave misconduct and dishonesty, and their commissionneed not be connected'Withthe performance of duty to justify his suspension. . The doctrine in the cases of Laesan v. Roque U and Mondatrw v. Silvo8fJ.22 to the effect that the cause of removal must relate to and affect the administration or performance of the office cannot be applied to this case, because those cases involve eleotive officials who stand on ground different from that of ,an appointive officer or employee, and whose suspension pending investigation is governned by other laws. Furthermore, an. elective oflfcer, elected by popular vote, is directly responsible only to the community that elected him. Ordinarily, he is not amenable to rul~s of official conduct governing appointive officials, and so, may not be forthwith summarily suspended, unless his conduct and acts of irregularity have some connectionwith his office. Furthermore, an elective offici.alhas a definite term of office, re1a.tivelyof short duraation; naturally, since suspension from his office definitely affects and shortens thiS!term of office,said suspension should not be ordered and done unless necessary to prevent further damage or injury to the office and to the people dealing with said officer. In Bautista v. Negai!xJ,,2.3 the unauthorized ~t of receiving money with the promise to install a water service, and the failure to comply with such promise on the part of an employee of the NAWlASA.constituted deceit or dishonesty. Citing the case of Nero" the court held that dishonesty need not be committed in the course of the performance of the erring employee's duties. SUi8p6'nSWn pending investigation, not a penaJ.ty but a preventive measureThe suspension of erring officers or employees pending their investigation under section 34 of the Civil Service Law of 1959 is not 8 penalty, but only a preventive measure. Suspension is a preliminary step in an administrative investigation.24 If after such investigation, the charges ,are established and
This section provides in part: ". . With the approval of the proper head of department. the "hlef of a bureau or office may likewise sUBpend any subordinate or employee in his bureau or under his authority pending an investigation if the charge against such subordinate or employee involves diBli.tn>6lItll. oppreaBWm, or gf'GllJ. ...iBctmdo&ct 01" -glflct in the performance of duty." (Underlining 0UllII) 1149 O.G. 93 (1953) . 51 O.G.2884 (1955) G.R. No. L-14319. promulgated May 26, 1960. Ie Preventive suspension is necesaary in order that the officer may not eas~ influence wit.

n._

to testify in his favor in view of his offlee and position.

the person investigated is found guilty of acts warranting his removal, then he is removed or dismissed. This, is the penalty. There is therefore, nothing improper in suspending an officer pending hisl investigation and before the charges against him are heard ,and be given an opportunity to prove his innocence.26

EmplO'Jleealiready swspended by virtue of prior chalrge need not be ordered 8UJJPe1Uled anew 10'7' J8econdchargeIn Pa,sCUQ, v. Tuazon,~ petitioner, a government employeewas accused> of falsification of public documentson May 14, 1951 and on May 18, 1951 he was suspended by the Secretary of Justice. While he was under suspension, another criminal case for grave coercion was filed .against him. In both cases, petitio.ner was convicted by the Court of First Instance. He was subsequently acquitted by the Court of Appeals of both charges. The acquittal in the case for falsification of public documents became final on April 8, 1953 a.nd his acquittal for grave coercion became final on October 8, 1954. Before his acquittal of grave coercion, he was charged administratively of acts unbecoming a government employee. In view of his acquittal, petitioner requested respon. dent Sec. of Justice Tuazon to reinstate him and order the payment of his back salaries. Upon refusal of the I.atter, petitioner filed the present petition for mandamus. The trial court ordered petitoner's reinstatement to his former positicm with back salaries unless he has been suspended or should be suspended by respondent Secretary by virtue of charges newly filed against him. Both parties appealed. Held: The charges against petitioner in the administrative case 'Were quite grave and are grounds for his suspension and that inasmuch as petitroner was already under suspension,sinceMay, 1957 there was no need to order anew his suspension. The trial court held in effect that to keep petitioner out of the government service, it was essential for the respondent to issue another order suspending him from office. Such suspension is an empty formality and would require an incongruous act, i.e., suspending one already under suspension.

The case of Magana v. Audiror General'27w,asa petition for certiorari praying among other things for the reinstatement of petition to the service and the payment of all salaries and privileges withheld as a result of his allegedly illegal ouster. He is a civil service eligible, .and his office as Field Auditor was abolished in CQ,IUlonance with the reorganization program of the new administration and its policy of economy. The court held that since petitioner enjoyed his unused vacation and sick leave, and receivedgratuity under ,a Board resolution; having accepted the benefits accruing from the abolition of his office, he is estopped from questioning its validity or is deemed to .have waived the right to question thesame.'.l8
Nera v. Gareia, G.R. No. 1.-13169, promulgated January 30, 1960. And in the ab!enee of abuse of discretion. the courts will not interfere with the suspension of the public oftlcer under investigation. (Suelto v. Munoz Palma, et aI., G.R. No. 1.-9034, April 13. 1906) . G.R. No. 1.-13046, promulgated lIIsy 20, 1960. G.R. No. L-12180, promulgated April 29, 1960. Cf. Lopez v. Board of Directors, G.R. No. L-8907, promulgated HaJ<eh 30. 1957.

D. Acts amounting to removal Improper tramfer of civil service emp'(qyee-Civil service employees enjoyed the protection of the Constitution which prohibits their suspension or removal except for c,aUSe as provided by law.l!9 The exigenciesof service morale and efficiencydemand the gr.anting of security of tenure. To permit circumvention of the constitutional prohibition by allowing removal without lawful cause, in the form or guise of transfers from one office to another, or from one province to another, without the consent of the transferee, would blast the hopes of young civil service officials .and career men and women, destroy their security and tenure of office and make for a subservient, discontentedand inefficient civil service force that sways with every political wind that blows and plays up to whatever political party is in the s,addle. That would not be our conceptof a free and efficient Governmentforce, possessed of self-respect and reasonable ambitioo.so In Ga;rciav. Lejano 31 the court ruled that the chief of a provincial hospital is embraced in the unclassified service of the government from which he cannot be removed except for cause, as provided in the Constitution, in relation to pertinent provisions of the Rev. Administrative Code ,and his transfer to another position without his consent is tantamount to removal without valid cause. It was contendedthat Lejano's transfer was merely to give him a temporary assignment elsewhere which can be done without doing violence to the constitutional prohibition. This claim, however, was belied by the evidence which .showsthat what was extended to Lejano was a new appointment. While temporary transfers or assignments can be made of the personnel of a bureau or department without first obtaining the consent of the employee concerned under Sec. 79 (0) of the RAC, such cannot be done when the transfer is with a view to his removal. Three justices diSi'Sented. They maintain that the hospital in question is not like other hospitals because it seems to be a training center for Philippine doctors and the position of the organization becomeshighly technical in nature and such traJlll!feris allowedunder sec. 79 (d) of the Revi'Sed Administrative Code. Furthermore, Lejano's conduct for the past 28 years of service in the government had been criticized as needing some improvement. Principle appmes, however', only to of/wers with POlrticuJmr statUm.The ruling tha.t a transfer of officers against their will amounts to are moval is predicated upon the theory that said officers are appointed to a particular station. Their appointments to their stations are their safeguard. The court in Miclat v. Ganaden3:2 in applying section 34 of Rep.'Ublic Act No. 1800 which provides that "the heads or chiefs of bureaus and offices are hereby authorized to change the designations of positions .and to make changes in the assignments of personnel as the exigenciesof the service may require: Provided, however. that such change shall not ,affect the tenure of office of incumbents of positions, shall not constitute a demotion, either in rank or saLary, nor result in a change in status, and shaH in all cases be subject to the approval of the Commissionerof Civil Service", 'stated th,at that section contemplates the giving of temporary .assignment to a public officer or employee 'With a
Art. XII, sec. 4, Phil. Constitution . Lacson v. Romero. 57 a.G. 1778; Santos v. Mallare. 48 a.G. 1787; Alzate v. Mabutas, 51 a.G. 2452; Gorospe v. De VeyrIa, L-8408, Feb. 17. 1955; Rodriguez v. Del Rosario. L-6715. Oct. 30, 1953. 81 G.R. No. L-12220. promulgated August 8, 1960. G.R. No. L-14459, promulgated May 80, 1960.

fixed and definite place or station, and does not apply to a publie officer or employee whose appointment is not for a particular place, where there is no necessity for the approval of the Civil Service Commissionfor his ,assignment to another station if the interest of the service should require. The appointments extended to petitioner and to Ganaden have no definite station and they are attached to the central office and both may be assigned to ,any place or station where their services may be needed. Conversion of '[JQS'itiion amounting to removalThe eo.n.version of the position of Assistant General Manager to General Field Supervisor; the suppression of the salary of the former position; the ,assignment df the incumbent assistant to the position of General Field Supervisor; and the revival of the positions of the Asst. General Manager with in. creased salary; the appointment of another person thereto, amounts to removal of the incumbent Asst. Gen. Manager surreptitiously. This Wias the ruling in the case of Board of DiJrectors of the Phil. CluJiritySweepstakes Office v. Alandy et 01.38 It appears in this c.ase that on May 21, 1949, Alandy was appointed Asst. General Manager of the Phil. Charity Sweepstakes Officewith an ,annual compensationof P7,000. In August, 1954, the Board of Directors of said office, through resolution, converted the position of Asst. Gen. Manager to Field Supervisor to which Alandy was formally appointed. In Dec. 1955, the Board, by resolutio.n No. 422, resolved to create the position of Asst. Gen. Man;ager with P10,OOO annual salary and appointed one Ambrosio to this position. Immediately, Alandy objected to this appointment and filed a quo WO/N'antopetition, claiming the position of General Manager for himself. The trial court declared the Resolution No. 422 null and void, declaring Aland:r entitled to said position and ordering payment to the latter of the difference in salary between P10,OOO and !'7,OOO from the effective date of the resolution. This order declaring the nullity of the resolution was affirmed by the higher court. However, .an increase in the appropriatio.n or salary should not automatically entitle the holder of the position to such increased salary. A new appointment is necessUlT"/l to entitl6 the employee to the differe7IU between th6 old and the new 'l'at68. Alandy may not therefore receive the increased salary until and unless expressly authorized to receive said promotion in salary. E. Modificationof Penalties Modification of penalty from removal (for adrministrative . pension is not eXone'I'atixm..-chAJrges)

to mere

81t8-

Petitioner, a justice of the peace, was found guilty of administrative charges filed against him ,and was subsequently removed from office by Adm. Order No. 53 of the President. There.after, respondent Fernandez was appointed to said office. Upon request of petitioner for reinvestigatio.nof his case for the purpose of allowing him to leave the service in a less embarassing 'Wayand of escaping criminal prosecution, the President issued Adm. Order No. 260, modifying the former order in the sense that petitioner is considered as having resigned effective on the date of his sep,aration from service without prejudice to reinstatement. Interpreting this last order as exoneration, petitioner requested for reinstatement. Held: Adm. Order No. 260 did not have the effect of exonerating petitioner from the charges or justifying the construction that the same constituted reversal of Order No. 53; it simply modifiedthe penalty by reducing it from removal to mere suspension. From the time of his re-

moval, petitioner had -DOtbeen reappointed to his former position, thereby creating .a vacancy which the President had tined by appointing respondent Fernandez;34 F. Reinstatement of employeeremoved without cause It is the ministerial duty of proper offW(!IT' W reinstate employee afterhi8 moval found to be with../mt ca.usere-

If it is proven that an employeehad been suspended and dismissed without cause contrary to the ~press provision of the Constitution, his reinstatement becomes a plain ministeri.a.lduty of the proper authority.3S This principle was applied in the case of Tan 11. Gimernez.36 In this case, the Commissionerof Civil' Service found petitioner Tan, a head teacher of l\ barrio school, guilty of grave misconduct and required him to resign from the service with prejudice to reinstatement. Tan appe.a,ledto the Civil Service Board of Appeals' on time, before the decision had become final and executory. The Board reversed the Commissioner'Sdecision and .llhsolvedthe petitioner from the charge, and the former's decision was not reversed or modifiedby the President. The Board's holding therefore, became the fi.n,a1 decision on the petitioner's case. Consequently, the petitioner's removal from office was not in accordance 'With law; his reinstatement became a ministerial duty of the proper .authority; and the payment of back salary w.as merely incidental to reinstatement. Officer's faWure to appeal lower court's decision 1IIpooldinghis dismissal is a lHurto hUt reinstatementAppellant Crisologo was appointed patrolm.an in the Cebu police department; he is II. civil service eligible. Subsequently his services were terminated due to the abolition of his salary item in the appropriation for 1968-1954. In January, 1954, Crisologo was reinstated by the mayor but Abayan brought .an action for quo warranw questioning his removal and the appointment of Cri80logo in his place. The lower court declared Abayan entitled to the position, and ,after the judgment had become final, the mayor again dismissed CriSologoand reinstated Abayan. HeJ4: Appellant has no cause of action since his appointment was decLaredillegal by the C.F.I. of Cebu. After the decision had become final and executory the mayor complied with the judgment of the court. Since appellant did not appe.a,lfrom said judgment, he is now barred from seeking reinstatement/'a' G. Temporary Appointments It is a rule supported by a long line of decisionsthat where an appointment is of a tempor.a,rycharacter, the same can be terminated at ple.asureby the appointing power. A temporary appointment is similar to one made in an. acting capacity, the essence of which lies in its temporary char.acter and its terminability at pleasure by the appointing power. And one who bears such e.n.appointment cannot complain if it is terminated at a moment's notice.llT
Bumanlag v. Fernandez. G.R. No. L-1l48, promulgated Nov. 29, 1960 . See Batungbakal v. N.D.C. 49 O.G. 2296; Naric Workers' Union. 52 O.G. 6928; Tabora Y Montellbono, 52 O.G. 3058. G.R. No. L-1252r>. promulgated February 19. 1960. - Crisologo v. Del Rosario, G.R. No. L-12909. August 24, 1960. IT Cuadro v. Cordova, L-1l602. April 21. 1958; R<lyesv. Dones, L-1l427. May 28, 1968; U.P. v. C.I.R.. L-13054. December 16. 1958: VIUanesa v. Alera et aI., L-105/l6. :May 29. 1967; Tolen. tJl~Ov. Torrea. L-6787. January 31, 1965; Branda v. Del Rosario. L-10552, April 28, 1958.

This year, the court added ,a few more cases to support the aiready wellestablished principle.lIs A person holding office as a permanent employee,who subsequently accepts a temporary appointment, instead of protesting the same actually entered the service in such capacity, changes the nature of his employment from perm,anent to that of temporary one. By accepting employment of temponary chamcter in the service, petitioner has. acquiesced or assented thereto, and was barred from questioning the legality of his dismissal or lay-off.;319 Under the Revised Administrative Code,40 any temporary appointment shall continue only for such period not exceeding three months. After such period, the appointment of tempor,ary employeesexpires and they can be replaced by the appointing authority.41 H. Void Appointment In Mariboo v. Ortiz, et 01.,42 it appears that petitioner was appointed Chief of Police by the acting mayor Toribio Chiongwho placed number five as councilor in the elections of November, 195.1, in spite of the fact that the highest number of votes for councilor was garnered by Ortiz and the second highest by one Dianna. On January 1, 1956, Ortiz was elected mayor and he advised petitioner to leave the office. He appointed a new chief of police, and this action was filed to compel the mayor and the treasurer to pay the salaries of petitioner. The court said that under section 2195 of the Rev. Administrative Code,43 the designation by the former Mayor Fortunato Villalon of councilor Chiong, who signed the appointment of petitioner, was illegal since he W,gs only number fiv: in the election. Not being a de jure officer, Chiong cannot appoint petitioner ,as chief of police. Furthermore, petitioner's appointment was not approved by the Commissionerof Civil Service nor by the President, whereas, the appointment of the new appointee made by the respondent Ortiz was approved on January 16, 1956. I. Employees of government institutions. EmpThyees of the National EOOfbO'mic Council embraced within Civil

SeIf"IJice-

Prior to July 1, 1958, petitioners were employeesof the National Economic Council with salaries paid from counterpart funds ,and Philcusa special appropriations. In the budget for the fiscal year 1958-59, their positions were integrated into the appropriation for the Bureau of Census and Statistics. The See. of Commerce and Industry issued and gave due course to new appointments in tavor of petitioners as incumbents of positions integrated with the Census Bureau, but at reduced ratlM of oolaries, despite the opinion of the
Montero v. Castellanes. G. R. No. L-12694, prom. June 30, 1960; U.P. v. C.I.R., G.R. No L-16416, prom. April 28, 1960; De la Torre v. Trinidad, G.R. No. L-14907, prom. May 31. 1960; Ferrer v. De Leon. G.R. No. L-16076, prom. August 29, 1960. Azuelo v. Arnaldo. G.R. No. L-16144. prom. May 26, 1960; Maid v. Auditor General, G.R. No. L-13623, prom. May 31. 1960. Quitiquit v. Vlllacorta. G.R. No. L-16048, prom. April 29, 1960; see also Roque v. President of the. Senate. L10949. July 29, 1968; Pinullar v. Pres. of the Senate. L-11667, June 30. 1968; Tolentmo v. Torres, 61 O.G. 763; Ramon v. Porras. CA. 63 O.G. 7286. Rev. Administrative Code, Sec. 682 Atay v. Doling, G.R. No. L-14680, prom. April 30, 1960; Orals v. Rlbo, L.4946, October 28. 1963; Erauda v. Del Rosario. L-10662, April 28, 1968; Jimenez v. Francisco. 63 O.G. 4894; Pana v. City Mayor, L5700, Dec. 18, 1963; Ramos v. Porras, 63 a.G. 7286; Mendez v. Ganzon. 63 O.G. 4836; Palagod v. Torres, L-10027, June 30. 1968. "G.R. No. L-13760. prom. July 30, 1960 It provides: . Upon the occasion of the absence. suspension. or other tempOrary dlsabUity of the mayor, his duties shalI be discharged by the vice mayor or If there be no vice mayor by the councilor who at the last general election received the highest number of votes."

Civil Service Commissioner,and the Budget Commissionerthat no new appointments were necessary and that reduction of petitioners' salo.ries could not be effected. Held: The National Eco.nomicCouncil is an office in the Executive branch of the government (Com. Act No.2), ,and its employees are embraced within the Philippine civils:ervice. The integration of their positions with the Bureau of Census did not have the effect of depriving petitioners of the status as civil service employees or make their salaries subject to reduction at the win of the respondent Secretary. Petitioners were already employees in the civil service at the time of the approval of s,aid budgetary act and no new appointment for them is necessary.44 Remova.l vf Central Bank EmplJoyees g01Jernedby coorter of that body,
'7IJOt

by

Civil Service LawIn. the case of Castilw v. Bayo-na et al..,4lI it was held that the remov,alof employees of the Central Bank, though they be subject to the Civil Service Law in other respects, is specially governed by sec. 14 of Republic Act No. 265 (Charter of the Central Bank) the part of which provides:
. " ... (c) On the recommendation of the Governor. (the Monetary Board) shall flx the remunerations. ..nd remo1Ie aU officers nd employees of the Central B k. with the exception of the Governor ... " (Underlining ours).

According to the court, the provisions of this section, particularly the ,above paragraph (C), is sufficiently broad to vest the Monetary Board with the power of investigation and removal of its officials a.nd employees,except the Governor thereof. Therefore, the contention that the employee who is a civil service eligible may only be removed under the Civil Service Law, is without merit. The committee cr~ated in this case to investigate the erring employeepursuant to the order of the Monetary Board, was therefore validly constituted, and in proceeding or trying to proceed with said investig.ation,it did not act in excess or with abuse of discretion. J. Peace Officers Detectives in the City vf Manila not embraced in uncOassift,ed serviceUnder the well-accepted principles of ejusdem gerwris, secret ,agents included in Section 611 (j) of the Rev. Administrative Code416 refer to secret or confidential agents and employees appointed by provincial authorities and belong to the unclassified service; they do not include detectives or comprehend members of the Detective Bureau of the Manila Police Department, 'Whoare embraced in the clo.ssifiedservice pursuant to sec. 670 of the s,aid Code, which declares that the cla.ssifiedservice embraces all not expressly declared to be in. the unclassifiedservice. Moreover, detective of the Manila Police Department are not mere agents according to sec. 37 of the Charter of Manil,a but actually peace officers a.nd actually members of the police force and consequently are in the classified service.4'1 It is for this reason that they may no longer be removed except for cause and in the manner prescribed by Republic Act No. 557. Therefore, there
Franche. et al. v. Hernaez. G.R. No. L-16006. prom. October 24. 1960. G.R. No. L-14375. prom . .January 30. 1960. . Sec. 671 partly provides: "The following officers and employees constitute the unclassified service: x x Jl (j) Secretallies of provincial boards. &ll9istant provincial fiscals. provincial wardens. provmeial sheriffs. deputy provincial sheriffs. and secret agents." .f OIegario v. Lacson. L-7926. May 21. 1955; Cy v. Rodriguez. L-6772. July 80. 1954; Pa!amine v. Zagado. L.6901. March 5. 1954: Abella v. Rodrilr\18Z. L-6867. June 29. 1954: Kfaaion v. del Rosario. L-6754. Feb. 26. 1954: Pineda v. Velez. L-8859. Oct. 31. 1956.

is nothing illegal in the appointment of an eligible to a cLassified position; the prohibition in sec. 685 does not apply because he belongs to the classified, not the unclassified service-liS In another ease;4,'9 it was held that under section 34 of the Charter of Manila (Rep. Act No. 409), the chief of police may change the assignment of the city police force, including detectives, if necess,aryin the interest of the service, without need of first securing the a.pproval of the Office of the President and suell transfer or temporary detail is not a removal or discharge from the service, in the absence of manifest abuse of diScretion or some improper motive or purpose. Mere change in the de8ignatwn of the office ewes not affect the right of civil serv'ice eligibles to said office; 'retml)valof policemen. for "lack of confidenc6" violative of R.A. 557In Velasco v. Court of /Appeals et aL,50 Guillermo Teves, a civil service eligible, was appointed chief of the secret service division of Davao City Police Department. He was dismissed by the mayor for lack of confidenceand on the ground that his position was abolished. The truth was that only the desig;n,a.tion of the name of the office was changed but the officer to occupy it remains the same. Velasco was appointed as "Detective captain" instead of "chief of the secret service division" as formerly named and occupiedby Teves. The lower court held that Teves should be reins.tated 'Withback salaries hence this appe,al. The Supreme Court found Teves' dismissal without cause. Respondent Velasco not a civil service eligible and his appointment was temporary. He may therefore be replaced by one entitled to office. The court also declared that the dismissal of detectives and/or members of the city or municipal policeforce for alleged lack of confidenceis violative of Rep. Act 557.51< There was no abolition of office; only a different name was given and consequently Teves' deprivation of the right to such office is illegal. Back salaries, however, were not allowed Teves, .since his action was directed only ag.ainst the mayor and Velasco, ,and not against the city. Back salaries can not be granted without affording either the city itself or the city councilopportunity to be heard and to prepare its defense. K. Exhaustion of Administrative Remedies The doctrines of ripeness for review and exhaustion of administrative remedies both imply that the primary condition under 'Whichcourt review may be sought is that the agency act be final, that is, not subject to any administrative remedies.52 The reaso,t1 for the continued adherence to this rule may be found in the fact th,at it provides for a policy of orderly procedure which favors a preliminary administrative sifting process and serves to prevent attempts to swamp the courts by a resort to them in the first instance.53 The doctrine fbund application in the cases of Ltarena De La Torre 'V. Trinidad.55
'V.

Lacs07t 54 and

"Sec. 686. Limitati<m. on emp/,oyment of per301f. i.. uncla.l!3ified 3ervice.-A person appointed to a poIlition in the unelassifted service "ball not be employed in any position in the classUied ""rvl"" nor "ball be be allowed to do clel\ical duties other than such as may pertain to the office of wbicb he was appointed,' The C&3C above discussed is the, case of Subido v. Sarmiento. et aI., G.R. No. L-14981, prom. May 23, 1960. "1'rlnidad v. Lae3on. G.R.. No. L-12363, prom. August 6, 1960. ooG.R. No. L-14691, and Teves v. Court of Appeals. Porras et aI., G.R. No. L-14776, prom. May 30. 1960.

However, in another case,:X; where petitioners wrote to the Commissioner of Civil Service and to the Secretary of Education, and they failed to obtain the relief sought, and instead the Director of Public Schools threatened to replace them, they had already given an opportunity to these high officials to act upon their petition for relief, which practically is equivalent to an exhaustion of the administrative remedies provided by law. And in another case it was held that when from the very beginning the action of the city mayor is patently illegal, arbitrary and oppressive; when manifestly the mayor has acted without juri.sdiction or has committed a grave abuse of discretion amounting to lack of jurisdiction; when his act is dearly and obviously devoid of any color of authority; the employeeadversely affected may forthwith seek the protection of the judicial department.:x; L. Gratuity The right to gratuity equivalent to one month salary for every year in the government service under section 18(b), par. (3) of Rep. Act No. 1345, is excluded by the enjoyment of retirement insurance benefits under Rep. Act 660. Having received retirement insurance benefits under said Act, oll.ppellant has, therefore, by his own voluntary act, divested himself of his right to gratuity. 57 M. Backpay claims O!fic~8 claim under Rep. Act 304 !maY be get ol! by his indebtedness to government-In Untalarn v. GelkL,58 it appears that claimant filed a petition in the CFI of Manila for a declaratIon that the authority gra.nted by the Auditor General to the Treasurer of the Philippines to withhold the proceeds of his backpa.y under Rep. Act 304 in order to compensate an indebtedness or obligation owed to the government by the officer or employee to be null and void. Claimant based his argument on sec. 5 of Rep. Act 304 which states that "the salaries or wages or certificates of i.ndebtednessherein provided shall be exempt from attachment or levy, except for payment of taxes or obligations for which the particular officers or employeesmay be directly liable as provided i.n this act". Held: Appellant's indebtedness is an obligation "for which the particular officer or employees may be directly liable and for that reason his backpa.ybe withheld and applied in satisfaction of his indebtednessand .allowedunder sec. 624 of the Rev. Administrative Code. When appellant applied for backpay under Rep. Act 894 ,a.pproved June 20, 1953he had a subsisting obligation to indemnify the government by virtue of a final judgment rendered on March 10, 1953 by a competent court.
Citing Olegario v. Laeson, L-7926, May 21, 1954; Mission v. Del Rosario, L-6754, Feb. 25, 1954; Abella v. Rodriguez. 1.-6901, March 15, 1954; Quintos v. Lac80n. L-8062, July 18, 1955. PARKER,ADMINISTRATIVE LAw (1952) 260. 50 U.S. v. Sing Tuek, 194 U.S. 161. G.R. No. L-15696, prom. May 30, 1960. II G,R. o. L-I+907, prom. May 31, 1900. See also Subido . Citll of G.R. No. LalMlG~ Prom. May 30, 1960, where it was held that court action WlU! not available for recovery of ~tuity pending approval by the President . Alzate v. Aldana, G.R. No. L-1<l407, prom. February 29, 1960. Fernandez v. Cuneta. G.R. No. L-14392, prom. May 30, 1960 citing Mangubat v. Osmeila et aJ., G.R. No. L-12847, April 30, 1959. 0' Laeson v. Auditor General et al.. G.R. No. L-12538, prom. April 29, 1960; see a1ao De la Rosa v. GSIS, G.R. No. L-13493, prom. April 30, 1960; Gabriel v. GSIS, G.R. No. L-11580 (decided :May 9, 1958). !ill G.:R. No. L-13296. prom. May 25, 1960.

M4"u..,

N. Liability of Officers Acts of office'l's honestTty d.cYne in the line of duty do8J8, not rt1li/..etr them I1Ubiect to claims fM civil liabilityIn a race in Santa Ana Hippodrome, the Board of Stewards, even knowing that there 'Was ,a faulty start, did not cancel the r.ace. Subsequently,the Commissionon Races cancelled it. Under Rep. Act No. 309, the law governing the operation of races, the decision of the Board of Steward is final and the action of the Commissionon Races was in excess of its mere power of supervision under the same law. The present action is brought by members of the B~rd of Stew.a.rdsfor damages; the Court of Appeals relieved respondents, hence this appeal. The Supreme Court held that since respondents have acted in their official capacity and in the honest belief that they had the power to cancel the race held, they cannot be held liable. The court quoted American Jurisprudence:
As a rule, a public officer x x x Is not personally liable to one Injured in consequence of an act performed within the scope of his official authority and In the line of his official duty. In order that acts may be done within the scope of official authority it Is not necessary that they be prescribed by statute or specifically directed but it is sufficient if they are done by officer In relation to tters committed by law to his e<m(W that they ha"e more (W leas c""""""tion with such tt...... '" '" "," (Underiining ours) "Where an officer is invested with discretion and is empowered to exercise judgment x x x be is sometimes cal1ed Q.uasi-judlclal officer and when acting he is usually given immunity from liability to persons who may be injured as the result of the erroneous or mistaken decision x x x provided that they are done within the scope of the officer's authority and without wilfulness, malice or corruption.""

troT.(W supervision

O. Civil Service Law of' 1959 Under Republic Act No. 2260 (Civil Service La.w of 1959), ,appointment m,ay be either permanent, provisional or temporary. "Probationary" appointments do not exist and under sec. 24(b) of said Act; "permanent" appointees must serve a probationary period of six months followingtheir original appointment although on prob,ationsuch appointees may .not be dropped from the service except for unsatisfactory conduct or want of capacity at any time before the expiration of the probationary period. One of these two causes must exist for valid dismissal and when the law fixes the causes thereof the employeeor officer must be given ,an opportunity to contest its existence. In other words, there must be notice ,and hearing. However, the requirement of undergoing the probationary period was not applied to petitioners in Fetrnatndez '11. CUn.eta,60 beeause that would prejudice petitioners, the Act having been approved on June 18, 1959 or almost three years and a half after the iUeg;alremoval of petitioner, They were ordered reinst,ated without passing through the probationary period ot appointment. P. 'Effect of Illegal Dismissal Illegal. dismissal does not result in vacancy in office; ousted wmtplJoyee entitled to back ~riesEven if there are present occupants of said offices, still, since petitioners were dismissed illegally, there was no vac.ancyand the present occupants would
Philippine Racing Club v, Bonifacio et citing 48 Am. J'ur. pp. 85-86 G.R. No. L-14392, prom. May 30, 1960. al., G.R. No. L-11944, prom. AUlrU8t 81, 1960

have to give way to petitioners' superior righVa Back salaries and damages were properly ,awarded to petitioners aside from the order reinstating them since respondent acted with gross negligence amounting to malice .and bad faith.\;2 Q. Veterans; preference

Prefe-renee given to veterans oonstrued

Section 5 of Republic Act No. 1363 provides that in order to enable a veteran to obtain preference, it must be shown that he has approximately the same qualifications ,as other applicants, and that it is not intended that a veteran shall have priority over civil service eligibles, unless he himself is of the same or higher civil service eligibility. In the case of Gomoles v. A.ldana,63 the principal question was whether w.ar veteran employees, given temporary appointments as industrial arts teachers in a public school, may be replaced by civil service eligibles, when at the time, there were non-veterans temporary appointees who could be replaced first. Petitioners Gonzales and Alcazar are not civil service eligibles, but they had approximately the siame qualific.ati<mS as the other five non-veterans who are occupying similar positions. Held: Petitioners cannot be replaced. The court also held that this preference extends not only in appointments whereby a veteran is accepted in the service of the government but also to his enjoyment of the benefits, rights, ,and emoluments accruing from said appointment. II. ELECTION LAW

A. Powers of the Commission on Elections Under the Constitution (Art. X, sec. 2), the Commission on Elections has exclusive charge of the enforcement and administration of all laws relative to the conduct of elections. It has under the same provision the power to decide, save those involving the right to vote, all administrative questions ,affecting elections, including the determination of the number and location of polling places and the appointment of election inspectors .a:nd other election officials. Some of the powers as decided in actual cases are the power to annul fraudu lent registry list,% to appoint election inspectors,65 to receive and acknowl edge certificates of candidacy 66 and to annul the canvass of election returns.67 The Supreme Court in the c.ase of Salcedo v. Commissimt 01l. El&c. fJions 68 enumerated some of the grounds for annulment. In this case it appears that after the decision of Salcedo v. GormmtBri<mon Electiffns 69 has become final the Commission on Elections ordered the Municipal Board of Canvassers of Bansud, Oriental Mindoro to c,anvass the votes for the municipal offices. The defeated candidate for mayor, Mampusti, questioned the canvass because in said election return the votes of the candidates did Mt tally with those appearing in the certified ,and correct photostatic copy of the election returns for the Commission on Elections and the discrepancy was vital. The board of canvassers continued the canvass despite the prohibition of the representative of the Commission on Elections: and proclaimed petitioner ,as mayor elect. There: B~tungbakal v. NDC. Agliega.do. 49 O.G. 2290. cited in Fernandez v. Cuneta. supra note 61. Diaz v. Amante, G.R. No. L9229. Dec. 26. 1958 cited in Cunet<J, case G.R. No. L-14576 .prom. April 27. 1960. . Feliciano v. Lugay, G.R. No. L-6715. Nov. 9, 1953. Rodriguez v. Aganon. G.R. No. L7215. Nov. 9. 1953 Y'caIn v. Caneja. 46 O.G. 433. tr. Sees. 168 and 163 Revised Election Code. G.R. No. L-16835. July 26. 1960 G.R. No. L16360. January 29. 1960. For the facts see footnote 16. supra.

fore Kampusti f,ailed with the Commission on Elections for the annulment of the canvass and the Commission took cognizance of the petition. The mayor eleet 1Ued a motion to dismiss but the Commission denied it hence this present action for certiorari and prohibition contesting the jurisdiction of the Commission to entertain such petitioo to prevent the proclamation. It was held by the Supreme Court that the Commission has ,authority to annul proclamation on the ground of illegal canvass;1'O proclamation based on incomplete returns,l1 proclamation made despite a timely petition filed with the board of c.anv,assers by all the members of the election inspectors calling attention to an inadvertent and unintentional mistake in the election returns and correcting' the same, as ,well as the petition by the candidate affected to give him opportunity to go to the court both of which petitions were denied by the board,12 and proclamation m.ade in ,an unauthorized meeting of the Board of Canvassers because held over the objection of the Commission's representative and against the express instructions of the Commission itself in the exercise of its advisory power.1S Under sections 163 and 168 of the Revised Election Code whenever there are contmdictory statements the board itself or ,any c,andidate affected may resort to court and in pursuance with these sections the Commission promulgated its rules and instructions in Case No. C.E. 334(K) providing for the suspension of canv.ass in cases of contradictory statements of the electioo returns in order to determine the true result. The Commission has power to annul proclamations a'lnd it has jurisdiction to entertain a petition of the affected party for the purpose of determining whether there are grounds for suspending the proclamation. It would be incongruous to declare the Commission with authority to .anlnul a proclamation and without authority to entertain and investigate a petition to prevent a proclamation. B. ProcLamation in violation of the Commission's instructions; mation after canvass based on photostatic copy effect of procla-

In the c.ase of Santos v. Commission O'n Elections 14 the proclamation of one of the candidates for mayor by the board of canvassers' in violation of an express instructions of the Commission not to proceed with the same until further orders ,and signed by only five of the ten members of the board of canvassers which is not a majority thereof, was declared null and void. The Court further s,aid that e. proclamation made by a board of canvassers after -a canvass of the votes based on the photostatic copy of the duplicate received by the Commission and not on the basis of the original !'eturns for the precinct received by the municipal treasurer as prescribed by law be declared null and void. It would be dangerous .according to the Court "to authorize the board of c.a.nvassers to use any copy of the return other than the one indicated by law, without first establishing that the latter is not available."

Jurisdiction .af CFI to annul proclamation made by the Bomrd of CanvassersIn the case of Municipal Board of CanV(ll88EmS, et al., v. Benitez, et al.,ITs it was held that the Court of First Instance has no jurisdiction to entertain a petition for mandamus for ,alleged anomalies committed by the municipal board
'i'O Mintu v. Enage et al.. G.R. No. L-1834. December 31, 1947; Ramos v. Commission Eleetions. 80 Phil. 722 n Abenda.nte v. Relato, G.R. No. L-6813. Noveml>&r 6, 111li3. '12 Laeson v. Commission. G.R. No. 1.-16261. December 28. 1969 Santos v. Commission on EJections. G.R. No. 1.-16413. lanuary 26, 196(,. ,. G.R. No. L-16413. January 26, 1960. G.R. No. 1.-16319, prom. lune 80, 1960.

on

of canvassers in the canvassing of votes and the ilIubsequentproclamation'of the result thereof, to the extent of annulling said proclamation, after the Commission on Elections had already taken steps to suspend the members of the board of c,anvassers Bnd hada,ppointed substitutes to take their place. C. Certificate of Candidacy-Substantial compliance with Section 3516 is sufficient. When the Election Law does not provide that a departure from a prescribed form will be fatal and such procedure has been due to an honest miSUlkeor misiJ1terpreta,tio.n of the Election Law on the part of him who was obligated to observe it, and such departure has not been used as a means of fraudulent practices or for the intimidation of voters Bnd it is clear that there has been a free and honest expression of the popular will, the law will be held directory and such dep,arture will be cOllsidereda harmless deficiency.11Thus in the ee.seof Canceran et 01. v. Commission on Electwns,18 the Commissiondeclared null and void a certificate of' candidacy filed with it on the ground that it was not subscribed under oath by the secret,ary of the party chapter in the locality and because it failed to state that the persons ,named therein are official candidates of the party in said municipality. On appeal, the Supreme Court reversed the decision stating that the statements contained in the certificate of candidacy to the effect that the local chapter chairman of the politic.al party in the municip,ality announces the candidacy of the petitioners and that they belO'l1g to the party may be considered substantial compliancewith the requirements of section 35. This f.act coupled with the fact that the said local chapter chairman did not attest to the c,andidacyof any other person than the candidates mentioned in the certificate filed by him, conveys the impression that the petitioners have been officially nominated by said party as its official c,andidates. The failure of the local secretary of the party to sign the certificate due to his honest belief that being one of the official candidates for councilor of said p,arty, he was no longer authorized to sign the same, is an honest mistake of fact which does not invalidate the certificate. Moreovera timely motion for reconsideration was filed where the names of the chairman and the secretary of the party in the municipality, the very officials required by the statute to sign said certificate were included. This cured the defects originally existing. D. New Political Subdivision. Even though a new municipality is holding its first election to fill its municipal offices, the provincial board can only assume the functions of a municipal board of canvassers if the municipal council concerned has not yet been constituted, otherwise the latter should act, the provision of section 167 (B) of the' Revised Election Code being applicable only when offices of the municipality have not yet been filled. This 'WaS the ruling in the, case of Salcedo 'lJ. C~n on Elections.19 It appears that the municipality of Bansud, Oriental Mindoro, which was newly created by Rep. Act 2514 was to hold for the first time an election to fill its municipal offices, including that of mayor ,and amQng the candidates who filed their certifiootes for this office were Filemon
,. Section 36 of the Revised Election Code provides In part: "Certificate of candldaey of cancHckte may be filed b)' a pl>lIUcaI party nominating them without the signature or _tb of said candidates. "Any political party haviug officially nl>luinated candidates shall file with the Commiuion on Elections a certificate of such official nominations subscribed under oath by the president and secretary or corresponding officers of such political group or party. x x x" "Gardiner v. Romulo. 26 PhiL 621. "IS G.R. No. L-1632, March 30, 1960. 10 G.R. No, L-16360. January 29. 1960.

Salcedo Jr. and Leon Mampusti. The provincial board of Oriental Mindoro, acting as municipal board of canv,assers of the new municipality pursuant to the provisions of section 167(B) of the Revised Election Code proclaimed Salcedo as mayor-elect. Mampusti filed a petition with the Commissionto Mlnul the canvass and proclamation made by the said provincial board on the ground that such should have been doneby the municipal councilof the new mUlllicipality. Said petition was granted and the Commissionordered the municipal board of canv.assers of the new municipality to immediately make a new canvass and thereafter proclaim the winning candidates. The provincial board was also ordered to deliver to the municipal treasurer all election retilrns submitted by the inspectors of said municipality. Petitioner filed the present petition for certiorari with preliminary injunction to set aside the resolution of the Commission The Court held that the provincial bo.ard ef Mindoro erroneously acted as municipal board of canvassers of the new municipality for the simple reason that at the time it acted as such there was already a municipal council existing. While section 167(B) of the Revised Election Code provides "For the first election in a new municipality the provincial board of OOlDvassers to proclaim the result of the municipal elections," however this provision should be interpreted in conjunction with section 10 of the same code which provide that "In the absence of a municipal or city council, the provincial board shall perform the duties of the former with respect to the first election in the new political subdivision,"from which it is logical to infer that even if a new municipality is holding its first election to fill its municipal offices, the provincial board can only assume the functions of a municip.alboard of canvaSSersif the municipal council concerned has not yet been constituted, otherwise the latter should act. E. Municipal Board of Canvassers--Member's disqualification to act. Section 28 of the Revised Election Code provides that "Any member of a provincial board or of a municipal council who is a candida.tefor office in any election shall be incompeten.tto act on said body in the performance of the duties thereof relative to said election . . ." Under this provision, where the members of the provincial bOlardwere all candidates for reelection they were all held to be disqualified to ,act as board of canvassers to proclaim the result of the municipal elections in a 'new municipality, since the law consider them incompetent to act in the provincial board in the performance of its duties in connection with the election.so In the case of Acain et al. 'II. BOOlT'd of Ca?t'lla88e'rSof Cmrmen, IAgwsan et 01.,81 Jose Malimit and Esteban Degamo were candidates for mayor. The Municipal Board of Canvassers by ,a vote of five to three proclaimed Malimit as mayor-elect. The three members objected to is,aidproclamation and refused to sign the certificate of canvass on the ground that the municipal treasurer's copy of the election returns for a certain precinct had been tampered with during the canvass The Commissionby a resolution found the tampering true and the five members who signed the certificate of canv,ass and proclamation were guilty of falsification apart from violating subparagraph K, paragraph IV of resolution No. 334 directing board of canvasSers in the event of conflict between several statements of the election returns ,and when said difference
Sakedo v. Commission on Elections, see footnote 79. In G.R. No. L-16445, May 23, 1960. G.R. No. L-16360, January 29. 1960. For the facts

affects the result to suspend the canvass 8IJldprocle.mationwhile the aggrieved party sought to ask a recount before the proper court. The Commission annulled the canvass and proclamation, suspended the five members, IIU1d ,authorized the representative of the Commissionto appoint the substitutes. The new board of canvassers with the substitutes appointed participating made a recanvass .and proclaimed Degarno and Palarca as mayor and vice mayor respectively. On January 4, 1960 Malimit and Acain instituted the present action for p~hibition, mandamus and certiorari with preliminary injunction to prevent the enforcement of the proclamation and to set aside said procl.arn.ation contending that it is void because the substitutes were not electors of Carmen, Agusan belonging to the party of the suspended and substituted members. A writ of preliminary injunction was issued by the lower court hence this appeal by Degamo and Pa1arc,afor its dissolution. One of the questions rai.gedwas the validity of the substitution. The Court held it was valid since section 16782 of the Revised Election Code providing for the appointment to the municipal board of canvassers of "registered voters of the same p,arty" as the members of the said bo.ardexcluded therefrom applies only when the latter are candidates" for the election not when temporary substitutes are appointed due to suspension of members, under section 3 of the said code on account of irregularities committed in the discharge of their duties in the conduct of election. F. Applicability of quo warranto, injunction, contempt, mandamus. One of the issues decided in the c,ase of Ac4in 11 Boatrd of Ca:ntlJQ,B8f!'r8,83 is the validity of the issuance by the lower court of the writ of preliminary injunction despite the fact that the defendant mayor elect was already aasurning said office at the time of the filing of the petition.. The Supreme Court held that the issuance was not proper since at the time of the filing of the petition, defendants 'Were not "merely threatening to ,assume the office of mayor and vice mayor respectively" ,as alleged in the petitiion on January 4, 1960 but hadalreedy assumed said office since January 1, 1960. Injunction may be availed of only to restrain an ,act that is about to be done but which has not materialized but not to undo wha.t has already been consummated.54 Having assumed office upon the authority of the proclamation made by the board of canv,assers backed up by the Commission on Elections Degamo and Palarca enjoyed at least the rights of a de f,acto officer and their title to said offices may not be contested except directly by a writ of quo warranto and/or by election protest not indirectly by questioning the regularity of their proclamation.85 An injunction is not an appropriate remedy for the removal of ,an officer or the reinstatement of one removed without cause.86 The Court further said since petitioner, M,a.limit filed with the Court of First Instance of Agusan a petition for a writ of quo warranto and an election protest against Degamo on December 17 ,and 18 respectively upon such filing the Court of First Instance of Agusan acquired exclusive authority to inquire into and pass upon the title of Degamo and the v,alidity of the proclamation.
02 Section 167 "Municipal board of canvnssers-(a) The municipal council shall constitute the municipal board of canvassers, excluding the members who are candidates and who shan be replaced by the Commi.sion on Elections with registered voters of the same party x x x" Supra. note 81. Municipal Council of Santa Rosa v. Provincial Board of Laguna, 3 Phil. 206; Matilde v. Cajucom, 19 Phil. U3; Reyes v. Harty, 21 Phil. 422. Tayko v. Capistrano. 53 Phil. 866; Government v. Binangonan. 28 Phil. 116. U BUen v. Vera. 64 Phil. 868.

In the case of Mali7l(Ji) v. Maf'c()8 Raveles 87 the Court cited the case of of Canvassers of BOf'ongan v. Benitez, supra, that the discrepancy betweeD the election returns and the certificate given to the watchers did not under the doctrine of the PCfIT'kule case give jurisdictio.nfor the Court to order the opening of the ballot boxes for the recounting under sections 163 and 168 of the Revised Election Code and cannot annul proclamations based on this ground. It follows that the lower court in the instant case had no jurisdiction to issue the preliminary writ of injunctio.n prohibiting petitioners from cOntinuing the canvass blllsedon this discrepancy neither had it jurisdiction in finding petitioners guilty of contempt :lIJldsentencing them accordingly. Imprisoned petitioners can avail themselves of the remedy of oobeas corpu.s since the order is void and the court has no jurisdiction over the crime or person of the accused. Also in the case of C"amav. del Ro8Cl1'io,8S one of the reasons why the Supreme Court set aside the writ of mandamus which 'was granted in the lower court is that in this case the Municip.alBoard of Canvassers suspended the canvass in accordance with sections 163 and 168 of the Revised Election Code hence according to the court there is no exclusion of ,another .from a right or office or neglect in the performance of Q duty. On the contrary the board performed the steps authorized by law. Mandamus is improper.
BOOII'd

And in another c,ase it was held that where a protest has been filed and the protestee has already assumed office, the protestant should seek his relief in said protest alld not in petition for mandamus and certiorari.8s> G. Recounting based on "Statements" under Secs. 163 and 168 Revised Election Code"In case It appear to the provincial board of the canvassers that another copy of other authentic copies of the statement from an election precinct submitted to the board give to a candidate a different number of votes and the difference affects the results of the election. the Court of First Instance of the Province upon motion of the 1>oard w of any candidate affected, may proceed to recount the votes cast in the precinct for the sole purpose of determining which is the true result of the count of the votes cast in said precinct for the office in question. Notice of such proceeding shall be given to all candidates affected:' (Sec. 163) ''The municipal board of canv&tllle1'S shall meet Immediately after the election, the municipal treasurer shall produce before It the statements of election from the different eleetion precincts ftled with him, and the board sJU.n count the votes east for candidates for municipal offiees ~nd proclaim as elected for said offices those who have polled the largest number of votes for the different offices in the same manner as hereuntofore provided for the provincial board. and to cluding that of resorting to the court In cipal board of canvassers shall not recount proceed upon the statements presented to between the copies. of the same statements, ClOdeshall be followed:' (Sec. 168) that end It shall have the same powers Incase of contradictory statements. The munithe votes nor examine any of them but shall It. Incase of contradictions or discrepancies the procedure provided in section 163 of this

The above provisions have been repeatedly applied in the recent case. In Cama v. del Rosan-in;se it appears that Cama and Pa.sta were registered candidates for mayor and during the canvassing the board found a discrepancy between the election returns for a certain precinct submitted by the municipal treasurer and the Commissionon Elections. The Municipal Board of Ca.n'G.R. No. L-16464, July 26, G.R. Nos. L-16834-40, May - Gumpol v. CFI of Isabela, Ilote 96a. G.R. Nos. L-16834-40, May 1960 30, 1960. Fot' facts see footnote 89. G.R. No. L-16409, 16416 promulgated November 29, 1960. 30. 1960.

See

V888er8suspended the canv.assuntil it would be determined under sees. 163 and 168 Cama together with the chairman of the board of election inspectors and the poll clerk filed a petition for ,s.recount but was dismissed. The majority members of the municipal bo.a.rdof canvassers elso filed a verified separate petition for suspension end recount. The opponent Pasta filed a writ of mandamus for the continuance of the canvass .and was granted hence this appe,al by Cama. The Court held that under sections 163 and 168, the canvass of the election for a municipal office shall be undertaken by the municipal board of canvassers on the basis of the statements submitted by the municipal treasurer amd in case of contradiction the Court of First Instance upon motion will proceed to recount the 'Votes. As to what election returns are involved was stated in P6I1'lade v. Quicho 90 to be referring only to the return in. possession of the munieipal treasurer .and the authentic copies in the possession of the pro-vineialtreasureran<} the Commissionon Elections. The discrepancy must appear "between copies of the same statements" and not to those appearing in an election return and certificate of votes given to watchers by inspectors. The recount in this case is necessary and must be made upon motion of the board or eny c,andidate affected. The trial court was in error in ignoring the petition filed by Cama because under the law a candidate affected is authorized to file such petition even if alone. The Supreme Court criticized the lower court's stand that the latter cannot consult the ballots for it will ha'Vea different criterion of appreciating them. The trial court is of the impression that it can exercise such discretion when no such ,authority is contemplated by law. The recount is merely a mathematical counting of votes and dDeiS not involve ,appreciation of ballots. H. Purpose of recount; who may make it As held in the ease of Sannson v. Nwme'T'ia1W Entenzo et al.,91 the recount authorized under section 168 in relation to 163 must be made by the Court of First Instance itself, not by the board of canvassers ,and is authorized for the sole purpose of determining, not who is' the elected candidate but which is the true result of the count of the votes east in the precinct in question. I. Discrepancy between election resultsThe case of Rabe v. Commission on Election ~2 involves two cases related to the outcome of the election for mayor. When the Municipal Board of Canvassel1Scanvassed the votes it noticed th,a.t there was a discrepancy between the Commissionon Election Form No. 8 known as advance election result and the official election result submitted by the mlMicipal treasurer, and the discrepancy 'Wasvital. The four members of the ~rd of election inspectors of the precinct in question unanimously admitted error in. the return of said precinct and decl,a.red that the advance election result or the Election Form No.8 contained the true returns. However the board of canvassers chose to follow the return submitted by the treasurer and proclaimed Rahe the winner. The opponent, Rapisura, complained to the Commissionand the latter nullified said proclamation and ordered the board of c,a.nvassersto file an action in court or to give interested party five days for judici.al correction of the return. On Nov. 23, 1959, Rapisura filed with the Court of First Instance of Ilocos Sur
G.R. No. L-16259. December 29. 1959. '" G.R. No.' L-16286. January 30. 1960 G.R. Nos. L16341. L-16470, May 26. 1960.

for the recounting of 'Votes. Rabe's motion to dismiss was denied so he' filed a petition for certiorari and prohibition asserting excess or abuse of jurisdiction by the Commissionand lack of jurisdiction of the court to order therecount, the discrepancy being insufficient in law specially after the proclama, tion by the Commissionand lack of jurisdiction of the court to order the rev. Commission on ElectJions.94 On January 9, 1960 Rabe filed this new petition and alleged that in Pwrlade case, a court of first instance has no power to order the recounting of votes merely upon a showing of discrepancy between the election results signed by the inspector and the certificate given to the watchers (signed by the inspectors too) because discrepancy among the four copies of the election returns according to Rabe's contention is the sole ground for the recounting of votes and argues that discrepancy is between one election return and C.E. Form No. 8 and which is not one of the four copies so there should be no recounting. A majority of the members find that the caSe of Lacson 11. OIml-misswn, supra, did not pass upon the application of sections 163 and 168 of the Revised Election Code to C.E. Form No. 8' as a copy or authentic copy of the statement from an election precinct Neither did the Pwrlade deciSionhold that discrepancy among the four copies of the election return constitutes the ooly ground for a recounting of the votes under aforesaid section. Though the Court did not expressly state but the holding implies that a conflict between C.E. Form No. 8 and any of the copies stated in the Pwrlade case may be a basis for a recount under sections 163 and 168. J. Election Return, Amendments of In the same case of Rabe v. Commission on Elections, supra, the Court further held that where the three election inspectors and the poll clerk of a precinct acknowledgedtheir error of having given a candidate the wrong number of votes in the election return (statement) this makes out a case for correction or amendment of the election return under section 154 of the Revised Election Code.9s It pr.actioolly amounted in the instant case to a request by Rapisura for the Court to authorize the board of inspectors to correct their statement and the Court may without any need of opening the ballot boxes order the correction of such error in the inspectoI'1S' statement of the election result citing the case of Benitez v. Pwredes.96 And in Gumpal 11. The CFl of lsabelaooa it was held that the Board of Election Inspectors may file, pursuant to section 154 of the Rev. ElectiOin Code, a petition for correction of its return dter this statement had been canvassed by the Provincial Board of Ca:;nv,assers but before said Board had canvassed all votes in the province ,and proclaimed who has been elected. The Provincial Board of Canvassers is charged by law (section 160, REC) with the duly of canvassing not the electiOin return for each precinct, but all the votes cast in the province and such duty is not deemed complied with until completion of the canvass and separate statements of all the votes received by candidates shall have been made and the board shall have proclaimedwho has been elected. Before the Provincial Board of Canv,assershave taken these steps, the Board
osDizon v. Provincial Board of Canvassers, 52 Phil. 47. G.R. No. L-16261. December 28. 1959. Section 154 Revised Election Code reads. "Alterations In statement-After the announcement of the results of the election In the polling place, the board of Inspectors shall not make any alterattons or amendment In any of Its statements. unless It be ordered by a competent eourt." 62 Phil. 1 G.R. No. L-16409 and L-16416, promulgated November 29. 1960.

of Election Inspectors may petition for correction of its returns. Such a petition for correction may be heard and resolved without notice to other affected ca;ndidatessince said section 154 does not require such notice. It 'Wasfurther held that any affected candidate ma.y also file this petition, since section 154 does not specify the party who m.ay institute the proceeding therein contemplated. So long as the members of the corresp<mdingboard of inspectors are unanimous on the existence of erro-r on the return and are willing to rectify the same, the court may authorize such correction of the return upon the petition of a c.andidateaffected by such mistake. K- Void Contract Among the political rights of the citizen is the right to present one's candidacy to the people, and to be voted to public office, provided that all the qualifications prescribed by the l,aw obtains; said right cannot be bargained away or surrendered for consideration by the citizen for it is! conferred not for withdrawal or private benefit or advantage but for the public good a.:nd interest. This doctrine was applied by the Supreme Court in the case of Saum v. Sindic.o 97 'Whereit held that the contract whereby the aspirants for nomination as the official candidate of a political party agreed to respect the result of the conventionand to desist from running as a "rebel or independent" candidate after losing in said convention is ,a void contract being against the law and public policy98 since the electors' choice would be limited to only those persons selected by a small group or by party bosses. L. Moot Question The case of Sandoval v. Commission on' Election 00 involves a petition for certiorari to review a resolution of the Commissionnot to give due course to the certificate of candidacy of petitioner, a candidate during the l,ast election for councilor. At the commencementof the proceedings in the court a writ of preliminary injunction was issued, ordering the Commissionto give due course to the petitioners' certificate of co.ndidacyand to consider and count the votes cast in his f,avor on Nov. 10, 1959. It appearing from the records before the courts, however, that the petitioner w,as not elected during the election then the queStionof whether or not his certificate of candidacy was filed in accordance with the law has become moot and purely academic and was therefore properly dismissed. M. Election Protest The basic leg-a}issue originally raised in the case of Mrunicipal BQOh'd Qf Canvassers of Borongan et al v. Benitez 1-00 was whether the respondent judge had jurisdiction to entertain alleged anomalies committed by the municipal board of canvassers after the Commission has remediedthe mistakes by appointing substitutes: ,after the suspension of the old members. Although the discrepancy of the election return and the certificates given to watchers did not justify the annulment followingthe Parlade case but in view further of the ,allegations of the other supposed election frauds allegedly committed in the keepin~
G.&. No. L-13403, March 23. 1960 Article 1409 New Civil Code enumellates as one of the void contracts: x x x "(1) Those whose e&use, object or purpose is contrary to law, morals, good customs, public order or public policy. x x x" G.&. No. L-16150, April 29, 1960. G No. L-16319. J'une 30. 1960

.a.

and delivering of the ballot boxes it is just and advis.ableaccording to the court to allow the protest .already filed to take its due course. Justices Paras, Jose Gutierrez David and Bautista Angelo dissented, although concurring in the result, following also their reasons in their dissent in the Parlade v. Quicho decision that the discrepancy between the certificate given to 'Watchersand that of the treasurer justifies opening of the ba.llotboxes for a recount but they concurred in the result because a. protest has been filed after the canvass and proclamation. N. Costs in Election Contests The facts in Montero v. Guerre'1'o:OOl are ,as follows: After the election of Guerrero the closest rival Montero filed a protest. The returns were .actually recanvassed but before its final termination a counter protest was also filed by Guerrero. Protestant Montero subsequently withdrew from the case and Guerrero also withdre'Wthe counter protest. This suit is brought by Guerrero to recover "bill of expenses and costs" covering his traveling expenses, ,attorneys' fees and for the filing of his answer. The court held that attorney's fees and expenses are not taxable as costs under section 102102 of the Revised Election Code and under section 10, Rule 131.103 "Expenses" in election contests should mean actual expenses connected with the trial and not expenses that attorneys and client incurred in preparing for trial Expenses for bringing the ball-otboxes and the commissioners'fees are also disallowedbecause they were incurred in connectionwith the counter protest but expenses for filing and .attendance of appellee are allowedas costs. It has been held that commissioners' fees are proper expenses payable under section 180104 and within the terms "expenses and costs." O. Factual Questions Appealable to the Court of AppealsTrajano and Gardicho lWerecandidates for mayor of the municipality of Lawa-an, Samar. Tr,ajano filed a protest against the proclamation of Gardicho as mayor-elect, alleging fraud and irregularities. After trial, Trajano was declared winner. Gardicho app~aled to the Supreme Court. Held: While the assigned errors .apparently involve questions of law, however, appellant in his discussion states in part that there is no sufficient evidence to show a "preconceivedplan to mark ballots '(in the precinct in question) identify them by means of putting the :n,amesof non-candidates in said ballots," which is a factual questiQD, and therefore not within the jurisdiction of the Supreme Court to resolve. It results that the present appeal involves mixed questions of law and fact, cognizable by the Court of Appeals. The case was remanded to that court.105

or

G.R. No. L-12579. June 30. 1960. Section 180 Revised Election Code "Botnds or MBh deposit.-Before the court shall take cognizance of the protest or a counter protest or admit an appeal. the party who has filed the pleadin& 01' interposed the appeal shall file a bond with two sureties satisfactory to the court and for such amount as it may fix. to answer for the payment of all expenses and costs incidental to said motion or appeal or shall deposit with the court cash in lieu of the hond or hoth as the court may order. The Court in which the contest is pending shall for good reason order from time to time that the amount of the bond or cash deposit he increased or decreased or order the disposition of such deposit as course of the contest may require x x x." "'" Sec. 1 Rule 131 "Costs O'rdmarily folJq,g reBtJlt of 81I.it.-Unless otherwise provided in these rules costs shall be allowed to the prevailing party as a matter of course but the court shall have power for speolal reasons to adjudge that either party shall pay the costs of an aetion or 'that the same may be divided may be equitable. No costs shall be allowed against the RePublic of the Philippines unless otherwise provided by law." - Torres v. Riho. G.R. No. L-5394, April 29, 1953. Trajano v. Gardicho, G.R. No. L-16679. promulgated October 25, 1960.
101 101