G.R. No.

L-16808

January 3, 1921

ANDRES BORROMEO, plaintiff, vs. FERMIN MARIANO, defendant. Fisher and DeWitt for plaintiff. Attorney-General Feria for defendant. MALCOLM, J.: Quo warranto proceedings have been instituted in this court to determine the right of the plaintiff and of the defendant to the office of Judge of the Court of First Instance of the Twenty-fourth Judicial District. The only facts, and these are undisputed ones, which need be noticed, are the following: Andres Borromeo was appointed and commissioned as Judge of the Twenty-fourth Judicial District, effective July 1, 1914. He duly qualified and took possession of the office on that date. On February, 25, 1920, he was appointed Judge of the Twenty-first Judicial District, and Fermin Mariano was appointed Judge of the Twenty-fourth Judicial District. Judge Borromeo has since the latter date consistently refused to accept appointment to the Twenty-first Judicial District. Judges of First Instance are appointed by the Governor-General with the consent of the Philippine Senate to serve until they reach the age of 65 years. (Adm. Code, secs. 65, 66, 148.) One Judge of First Instance is commissioned for each judicial district, except the night. (Sec. 154.) The oath of office of the judge is "filed with the clerk of the court to which the affiant pertains and shall be entered upon its records." (Sec. 128.) Judges of First Instance may only be detailed by the Secretary of Justice to temporary duty in a district other than their own for the purpose of trying land registration cases and for vacation duty. (Sec. 155.) The concluding portion of section 155 of the Administrative Code, to which particular attention is addressed by the Attorney-General, is, "but nothing herein shall be construed to prevent a judge of first instance of one district from being appointed to be judge of another district." A Judge of First Instance can be removed from office by the Governor-General only if in the judgment of the Supreme Court sufficient cause shall exist involving serious misconduct or inefficiency in office. (Sec. 173.) The cardinal rule of statutory construction requires the court to give effect to the general legislative intent if that can be discovered within the four corners of the Act. When the object intended to be accomplished by the statute is once clearly ascertained, general words may be restrained to it and those of narrower import may be expanded to embrace it, to effectuate the intent. Along with this fundamental principle is another, equally well-established, that such a construction is, if possible, to be adopted, as will give effect to all provision of the statute. (2 Lewis' Sutherland, Statutory Construction, pp. 662, et seq.; In re Allen [1903], 2 Phil., 630; Code of Civil Procedure, sec. 287.) Leaving out of consideration for the moment the last part of section 155 of the Administrative Code, the provisions of the Judiciary Law are plain and unambiguous. Judges of First Instance are appointed judges of the courts of first instance of the respective judicial districts of the Philippines Islands. They are not appointed judges of first instance of the Philippine Islands. They hold these positions of judges of first instance of definite districts until they resign, retire, or are removed through impeachment proceedings. The intention of the law is to recognize separate and distinct judicial offices.

The concluding portion of section 155 of the Administrative Code, although not beginning with the usual introductory word, "provided," is nevertheless, in the nature of a proviso, and should be construed as such. The office of a proviso is to limit the application of the law. It is contrary to the nature of a proviso to enlarge the operation of the law. It should not be construed so as to repeal or destroy the main provisions of the statute. A proviso which is directly repugnant to the purview or body of an Act is inoperative and void. (See generally, 25 R. C. L., pp. 984, et seq.; and specifically, the leading cases of McKnight vs. Hodge [1909], 55 Wash., 289, 104 Pac., 504, 40 L. R. A. [N.S.], 1207; McCormick vs. West Duluth [1891], 47 Minn., 272, 50 N.W., 128; Idaho Power & Light Co. vs. Blomquist [1916], 26 Idaho, 222; 141 Pac., 1083, Ann. Cas. [1916 E], p. 282, where these principles concerning provisos are applied.) To arrive at a correct decision with reference to the proviso before us, let it first be recalled that the law is emphatic in its specification that, save when judges of first instance are detailed to try land registration cases or when assigned to vacation duty, "no judge of first instance shall be required to do duty in any other district than that for which he is commissioned." The keyword to the proviso which follows is "appointed." This word should here be given its usual signification. Many of the decisions follow the definition of "appoint" found in the Century Dictionary and Encyclopedia. "Appoint" is there defined as "to allot, set apart, or designate; nominate or authoritatively assign, as far a use, or to a position or office." All the authorities united in saying that the term "appoint" is wellknown in law and whether regarded in its legal or in its ordinary acceptation, is applied to the nomination or designation of an individual. Appointment signifies no more than selection for public office. (4 C. J., 1402, 1404, citing numerous decisions.) The effect to be given to the word "appoint" is corroborated by the principles of the law of public officers. Appointment and qualification to office are separate and distinct things. Appointment is the sole act of those vested with the power to make it. Acceptance is the sole act of the appointee. Persons may be chosen for office at pleasure; there is no power in these Islands which can compel a man to accept the office. (22 R. C. L. 423.) If, therefore, anyone could refuse appointment as a judge of first instance to a particular district, when once appointment to this district is accepted, he has exactly the same right to refuse an appointment to another district. No other person could be placed in the position of this Judge of First Instance since another rule of public officers is, that an appointment may not be made to an office which is not vacant. (29 Cyc., 1373.) In our judgment, the language of the proviso to section 155 of the Administrative Code, interpreted with reference to the law of public officers, does not empower the Governor-General to force upon the judge of one district an appointment to another district against his will, thereby removing him from his district. Returning again to the principle of statutory construction that a proviso should not be given a meaning which would tend to render abortive the main portions of the law, it should further be recalled that judges of first instance are removable only through a fixed procedure. Moreover, impeachment proceedings, as conducted by the Supreme Court, may be in the nature of jurisdiction, conferred upon the Supreme Court by ratification of the Congress of the United States, which, it has uniformly been held, cannot be diminished. (We make no ruling on this point because unnecessary for the resolution of the case.) But, certainly, if a judge could be transferred from one district of the Philippine Islands to another, without his consent, it would require no great amount of imagination to conceive how this power could be used to discipline the judge or as an indirect means of removal. A judge who had, by a decision, incurred the ill-will of an attorney or official, could, by the insistence of the disgruntled party, be removed from one district, demoted, and transferred to another district, at possibly a loss of salary, all without the consent of the judicial officer. The only recourse of the judicial officer who should desire to maintain his self-respect, would be to vacate the office and leave the service. Unless we wish to nullify the impeachment section of the Administrative Code, and thus possibly to encroach upon the jurisdiction conferred upon the Supreme Court by the Organic Law, section 155 must be interpreted so as to make it consistent therewith.

What we have said is reinforced by the authorities most directly in point. In the early decision of Marbury vs.Madison ([1803], 1 Cranch, 137), the Supreme Court of the United States, in unmistakable terms, explained the powers of the Judiciary in enforcing the Constitution as the Supreme Law of the Land and held that the President of the United States had no power to remove a justice of the peace of the District of Columbia from office. Mr. Chief Justice Marshall said that "When the officer is not removable at the will of the executive, the appointment is not revocable, and cannot be annulled: it has conferred legal rights which cannot be resumed. The discretion of the executive is to be exercised, until the appointment has been made. But having once made the appointment, his power over the office is terminated, in all cases where, by law, the officer is not removable by him. The right to the office is then in the person appointed, and he has the absolute unconditional power of accepting or rejecting it." The great jurist further or observed that "It is, emphatically, the province and duty of the judicial department, to say what the law is" In State of Louisiana vs. Downes ([1869], 21 La. Ann., 490), the Supreme Court of Louisiana said that a judge of a court could, under the Constitution of that State, only be removed from office by impeachment, by address of the Legislature, or by proceeding under the intrusion act. It was held that the appointment and commissioning by the Governor of the State of a party to an office which has legally been filled, without the vacancy being first declared according to law, was an absolute nullity. The Attorney-General brings to our notice an obsolete law which had escaped us, and which, if any lingering doubts exist, would serve to remove that. This law is Act No. 396, enacted by the Philippine Commission in 1902. Section 4 thereof, separate and distinct from the other provisions of the Act, and not tacked on as a proviso, provided that "any judge of a Court of First Instance . . . may be transferred from one judicial district to another by order of the Civil Governor, with the advice and consent of the Commission. Any judge so transferred shall, upon such transfer, cease the performance of judicial duties in the district to which he was originally appointed, and shall be the regular judge thereafter in the judicial district to which he as been so assigned." But Act No. 396 was thrice repealed by the Philippine Legislature; the first time, impliedly by the enactment of Act No. 2347, the Judiciary Reorganization Act, and subsequently, expressly by the Administrative Code of 1916 and the Administrative Code of 1917. Instead, also, of continuing the phraseology of section 4 of Act No. 396, the Legislature merely included the proviso to which we have alluded. It cannot, therefore, admit of doubt that the members of the Philippine Legislature had before them the Act of the Philippine Commission and preferred, not to perpetuate the old law, but to insert language of their own. The purpose of the Philippine Legislature was clearly to safeguard the interests of the judiciary, and this laudable purpose, it is for us now to effectuate. Far more convincing than precedent or argument are great and basic principles long inherent in popular government intended to create an independent judiciary. A history of the struggle for a fearless and an incorruptible judiciary prepared to follow the law and to administer it regardless of consequences, can be perused with ever-recurring benefit. Since the early days of the Republic, the judicial system in the United States, with certain exceptions which only served to demonstrate more fully the excellence of the whole, has been viewed with pride, and confidently relied upon for justice by the American people. The American people considered it necessary "that there should be a judiciary endowed with substantial and independent powers and secure against all corrupting or perverting influences; secure, also, against the arbitrary authority of the administrative heads of the government." (Woodrow Wilson, Constitutional Government in the United States, pp. 17, 142.) It was such a conception of an independent judiciary which was instituted in the Philippines by the American administration and which has since served as one of the chief glories of the government and one of the most priceless heritages of the Filipino people. The Attorney-General in the argument in support of his motion for reconsideration, quotes the last preceding sentence and says that he dissents therefrom. The number of authoritative replies to the

proposition advanced by the law officer of the government relative to the intention to establish an independent judiciary in these Islands, is limited only by space in which to quote them. Possibly we can do no better than to make our own the language of Mr. Justice Trent, speaking for a unanimous court, in Severino vs. Governor-General and Provincial Board of Occidental Negro ([1910], 16 Phil., 366, 384), when he said: "This governments in the United States, now possesses a complete governmental organization, with executive legislative, and judicial departments, which are exercising functions as independent of each other as the Federal or State governments." (For the legislative version of the same idea, see Administrative Code, sec. 17.) On occasion, the Supreme Court of the Philippine Islands has applied the accepted theory of the division of powers, termed by the United States Supreme Court as "one of the chief merits of the American system of written constitutional law" (Kilbourn vs. Thompson [1881], 13 Otto, 168), and has unhesitatingly refused to interfere with the official acts of the Governor-General or to intrude on the rights and privileges of the Philippine Legislature (In the Patterson [1902], 1 Phil., 93; Severino vs. Governor-General and Provincial Board of Occidental Negros,supra; In re McCulloch Dick [1918], 38 Phil., 41; U.S. vs. Bull [1910], 15 Phil., 7; U.S. vs. Ten Yu [1912], 24 Phil., 1; Veloso vs. Boards of Canvassers of Leyte and Samar [1919], 39 Phil., 886.) As an instance of this class of decisions, in Veloso vs. Boards of Canvassers of Leyte and Samar, supra, this court, in considering the right of the Philippine Senate to be the judge of the elections, returns, and qualifications of its elective members, said: The grant of power to the Philippine Senate and the Philippine House of Representatives, respectively is full, clear, and complete. . . . The judiciary, with its traditional and careful regard for the balance of powers, must permit this exclusive privilege of the legislature to remain where the sovereign authority has placed it. Since, therefore, the Philippine Senate is made the sole judge of the elections, returns, and qualifications of its elective members, this tribunal neither can, nor ought, to take jurisdiction of the case. Although much more reluctantly, and also much more infrequently we are happy to add, the court has had to defend the judiciary against legislative and executive encroachment. (Ocampo vs. Cabagis [1910], 15 Phil., 626;In re Guaria [1914], 24 Phil., 37; Barrameda vs. Moir [1913], 25 Phil., 44; and Province of Tarlac vs. Gale [1913], 26 Phil., 338.) As an instance of the latter class of decisions, in Province of Tarlac vs. Gale, supra, Mr. Justice Moreland, speaking for the court, said: The judiciary is one of the coordinate branches of the Government. (Forbes vs. Chuoco Tiaco, 16 Phil., 534; United States vs. Bull, 15 Phil., 7.) Its preservation in its integrity and effectiveness is necessary to the present form of Government. . . . It is clear . . . that each department is bound to preserve its own existence if it live up to the duty imposed upon it as one of the coordinate branches of the government. Whatever a person or entity ought to do or must do in law, it has the power to do. This being true, the judiciary has the power to maintain its existence; and whatever is reasonably necessary to that end, courts may do or order done. But the right to live, if that is all there is of it, is a very small matter. The mere right to breathe does not satisfy ambition or produce results. Therefore, courts have not only the power to maintain their life, but they have also the power to make that existence effective for the purpose for which the judiciary was created. They can, by appropriate means, do all things necessary to preserve and maintain every quality needful to make the judiciary an effective institution of Government. Courts have, therefore, inherent power to preserve their integrity, maintain their dignity and to insure effectiveness in the administration of justice. This is clear; for, if the judiciary may be deprived of any one of its essential attributes, or if any one of them may be seriously weakened by the act of any person or official, then independence disappears and subordination begins. The power to interfere is the power to control, and the power to control is the power to abrogate. The

sovereign power has given life to the judiciary and nothing less than the sovereign power can take it away or render it useless. The power to withhold from the courts anything really essential for the administration of justice is the power to control and ultimately to destroy the efficiency of the judiciary. Courts cannot, under their duty to their creator, the sovereign power, permit themselves to be subordinated to any person or official to which their creator did not itself subordinate them. A stirring plea has been made by the learned representative of the Government for a decision which will work for the public welfare. We agree that, under the peculiar conditions existing in the Philippines, it is sometimes well for a judge not to remain indefinitely in a particular district. But it is a far cry from this premise to the use of a method not sanctioned by existing law and savoring of military discipline. Our conception of good judges has been, and is, of men who have a mastery of the principles of law, who discharge their duties in accordance with law, who are permitted to perform the duties of the office undeterred by outside influence, and who are independent and selfrespecting human units in a judicial system equal and coordinate to the other two departments of government. We are pleased to think of judges as of the type of the erudite Coke who, three centuries ago, was removed from office because when asked "if in the future he would delay a case at the King's order," replied: "I will do what becomes me as a judge." For the reasons given, we are of opinion that the reasonable force of the language used in the proviso to section 155 of the Administrative Code taken in connection with the whole of the Judiciary Law, and the accepted canons of interpretation, and the principles of the law of public officers, leave from for no other construction than that a Judge of First Instance may be made a judge of another district only with his consent. It is our holding that the plaintiff Andres Borromeo is lawfully entitled to the possession of the office of Judge of the Court of First Instance of the Twenty-Fourth Judicial District. It is our judgment that the defendant Fermin Mariano shall be ousted from the office of Judge of the Twenty-fourth Judicial District, and the plaintiff placed in possession of the same. The motion for reconsideration filed by the Attorney-General is denied. No costs shall be allowed. Let this be entered as the order of the court. So ordered.

G.R. No. L-11985

January 28, 1961

MARIANO CONDE, plaintiff-appellant, vs. THE NATIONAL TOBACCO CORPORATION and THE BOARD, OF LIQUIDATORS, defendantsappellees. Matias E. Vergara for plaintiff-appellant. Feliciano Tumale for defendants-appellees.

DIZON, J.: Appeal by Mariano Conde from the decision of the Court of First Instance of Manila dismissing the complaint filed by him against the National Tobacco Corporation and the Board of Liquidators, without costs. It appears that on September 6, 1940 appellant was appointed Secretary-Treasurer of the National Tobacco Corporation with an annual compensation of P4,800 effective as of October 15, 1940. On August 22, 1941 he was appointed Secretary and Administrative Officer of the same company with the same annual compensation. On October 23, 1945 he was appointed Acting Secretary and Administrative Officer of the company with an annual compensation of P5,100.00. On March 18, 1946 he was appointed Acting Secretary and Administrative Officer with an increased annual compensation of P6,000.00. On September 16 of the same year he was appointed Treasurer and Chief, Credit Department, with the same annual compensation of P6,000.00. The appointment extended indicated that it was a mere "change of designation". On November 18, 1946 he was appointed Treasurer and Credit Manager with an increased annual compensation of P7,200.00 effective as of November 1st of said year. Finally, on December 21, 1948 he was appointed Treasurer with a reduced annual compensation of P6,000.00 effective as of December 16, of said year. This was in pursuance of Resolution No. 265 passed by the Board of Directors of the company on December 6, 1948, which stated, inter alia, that the reduction of the salary of appellant was for the purpose of making uniform the annual compensation of the Department Chiefs of the company. In this connection the resolution also renewed appellant of his duties as Secretary of the Board of Directors and Administrative Officer, presumably in order that his work as department chief would not be much more than that of other department chiefs. Several petitions for reconsideration filed by appellant in connection with the reduction of his annual compensation were denied by the Board of Directors. By executive order No. 372, the National Tobacco Corporation was dissolved and a Board of Liquidators was created for the purpose of settling and closing its affairs within a period of three years. Appellant also sought twice from the Board of Liquidators a reconsideration of the Board resolution reducing his annual compensation, but his petitions were denied. As a result, after his retirement from the service of the National Tobacco Corporation on January 31, 1952, he commenced the present action to recover from the latter and/or the Board of Liquidators, jointly and severally, the sum of P5,283.33, with legal interest thereon from the filing of the complaint, plus the sum of P1,750.00 for attorney's fees, and the cost of the suit. The first amount represented alleged salaries and gratuity differentials which he failed to receive by reason of the fact that the computations made for the payment of his salaries and gratuity were based on his reduced compensation of P6,000.00 per annum. The question raised by appellant in this instance may be summarized as follows: firstly, that the document Exhibit B constituted an appointment and not a mere notice of the reduction of his salary, and that, therefore, it was not valid without the approval of the Chief Executive; secondly, that the approval of the Operation Budget of the company for the first year July 1, 1948, to June 30, 1949 by the Control Committee of the Government Enterprises Council did not amount to presidential approval of Exhibit B; and lastly, that the court should have judgment in his favor by reason of the prevailing governmental practice of not applying any reduction of salary for any particular position to the incumbent, and on the further ground that the Board of Directors of the National Tobacco Corporation had discriminated against appellant. Appellant concedes the authority of this former employee to reduce his salary or compensation, but argues that the document Exhibit B appointing him as Treasurer was never approved by the

President of the Philippines and, for this reason never became legally effective. This contention is untenable. It is true that the approval of the President was necessary in the case of appointments to Positions in the National Tobacco Corporation involving a salary of P3,000.00 or more annually. It is likewise a fact that the appointments extended to appellant mentioned heretofore were submitted to and approved by the President of the Philippine, through the Chief of the Executive Officer with the exception of the last which appointed him as Treasurer only and reduced his annual compensation from P7,200.00 to P6,000.00. The rule referred to, however, would apply to appellant's case only if the document marked Exhibit B constituted in fact and in law, a real appointment and not a mere notice advising him of the reduction of his annual salary and of his duties as employee of the company. After a careful consideration of the circumstances that led to the issuance thereof, we are inclined to believe that the document was in the nature of a mere notice and, therefore, needed no presidential approval. It must be observed that the preceding appointments were as SecretaryTreasurer (Exhibit C); as Secretary and Administrative Officer (Exhibit D); as Acting Secretary and Administrative Officer (Exhibit E); as Acting Secretary and Administrative Officer (Exhibit F); as Treasurer and Chief, Credit Department (Exhibit G); and as Treasurer and Credit Manager (Exhibits A, A-1), while the one in question was as Treasurer exclusively. Appellant, therefore, was not given a new job; the so-called "appointment" merely reduced his duties and, as a consequence, made a corresponding reduction states that the change was made in pursuance of Resolution No. 265 which was adopted for the purpose of standardizing the salaries of chiefs of departments, for which reason, "the compensation of the treasurer be (was) reverted to six thousand (P6,000.00) pesos per annum effective December 16, 1948" (Exhibit 6). It is clear therefore, that exhibits 6 and B, in effect, merely took away from appellant his additional duties as credit manager, and in view of his reduced duties and to accomplish standardization of salaries, his compensation WAS REVERTED to P6,000.00 per annum. Moreover, the reduction of appellant's duties was not at all arbitrary. It was motivated principally by the fact that there had been created in the corporation a separate position with an annual compensation of P6,000.00, entrusted with the discharge of the duties of which appellant was relieved. From a technical point of view, there would seem to be less reason to uphold appellant's contention. The term" appointment" is in law equivalent to "filling a vacancy" (6 C.J.S. 89). In this case it seems obvious to us that appellant never vacated the position of Treasurer; he did not have to vacate it in order to accept the position to which he was "appointed" on December 21, 1948 (Exhibit B). In point of fact, therefore, the position of Treasurer was not vacated by him by reason of his alleged appointment as Treasurer only. The fact that the appointments extended in favor of appellant prior to the one in question were submitted to and actually approved by the Office of the President of the Philippines is explained by the fact that the appointment of September 6, 1940 was his original appointment as SecretaryTreasurer and the subsequent ones involved increases in salary or additional duties imposed upon the appointee. Their submission to the Office of the President was in pursuance of a policy in relation to appointments in government controlled corporations involving additional expenditure and disbursement or appropriation of funds. There is no showing in the record that the same policy applied to a case of reduction of salary. But even granting that the so-called appointment required presidential approval, it may be cleaned from the record that there had been substantial compliance with this requirement. The reduction of appellant's salary, after its approval by the General Manager and the Board of Directors of the National Tobacco Corporation was carried in the Operation Budget of the corporation for the fiscal

year July 1, 1948 to June 30, 1949. This Operation Budget was submitted to and approved by the Control Committee of the Government Enterprises Council, through its Chairman. This affirmative action was taken by authority of the President of the Philippines (Exhibit 8-A). It must be stated in this connection that by Executive Order No. 93 (Exhibit 15) the Government Enterprises Council and particularly the Control Committee thereof is the representative of the President in the supervision of all government-owned and controlled corporations. The act of said body, therefore, should be deemed to be an act done on behalf of the President of the Philippines himself. This must be binding upon appellant for the reason that all his appointments prior to the one in question which lie deems valid and regular were not approved by the President of the Philippines personally but by the Executive Secretary acting "by authority of the President". (Exhibits 1 to 5) With what has been stated heretofore we deem fully resolved the main questions involved in this appeal and, finding the appealed decision to be in accordance with law, the same is hereby affirmed, with costs.

G.R. No. L-26979

April 1, 1927

THE GOVERNMENT OF THE PHILIPPINE ISLANDS, plaintiffs, vs. MILTON E. SPINGER, DALAMACIO COSTAS, and ANSELMO HILARIO, defendants. Attorney-General Jaranilla, F. C. Fisher, and Hugh C. Smith for plaintiff. Jose Abad Santos; Ross, Lawrence and Selph; Paredes, Buencamino and Yulo; Araneta and Zaragoza; Charles E. Tenney; Camus, Delgado and Recto and Mariano H. de Joya for defendants. MALCOLM, J.: This is an original action of quo warranto brought in the name of the Government of the Philippine Islands against three directors of the National Coal Company who were elected to their positions by the legislative members of the committee created by Acts. Nos. 2705 and 2822. The purpose of the proceeding is to test the validity of the part of section 4 of Act No. 2705, as amended by section 2 of Act No. 2822, which provides that "The voting power of all such stock (in the National Coal Company) owned by the Government of the Philippine Islands shall be vested exclusively in a committee consisting of the Governor-General, the President of the Senate, and the Speaker of the House of Representatives." The material facts are averred in the complaint of the plaintiff and admitted in the demurrer of the defendants. The National Coal Company is a corporation organized and existing by virtue of Act No. 2705 of the Philippine Legislature as amended by Act No. 2822, and of the Corporation law. By the terms of the charter of the corporation, the Governor-General was directed to subscribe on behalf of the

Government of the Philippine Islands for at least fifty-one per cent of the capital of the corporation. The government eventually became the owner of more than ninety-nine per cent of the thirty thousand outstanding shares of stocks of the National Coal Company. Only nineteen shares stand in the names of private individuals. On November 9, 1926, the Government-General promulgated Executive Order No. 37. Reference was made therein to opinions of the Judge Advocate General of the United States Army and of the Acting Attorney-General of the United States wherein it was held that the provisions of the statutes passed by the Philippine Legislature creating a voting committee or board of control, and enumerating the duties and powers thereof with respect to certain corporations in which the Philippine Government is the owner of stock, are nullities. Announcement was made that on account of the invalidity of the portions of the Acts creating the voting committee or board of control, the Governor-General would, thereafter, exercise exclusivelythe duties and powers theretofore assumed by the voting committee or board of control. Notice of the contents of this executive order was given to the President of the Senate and the Speaker of the House of Representatives. (24 Off. Gaz., 2419.) A special meeting of the stockholders of the National Coal Company was called for December 6, 1926, at 3 o'clock in the afternoon, for the purpose of electing directors and the transaction of such other business as migh properly come before the meeting. Prior thereto, on November 29, 1926, the President of the Senate and the Speaker of the House of Representatives as members of the voting committee, requested the Governor-General to convene the committee at 2:30 p. m., on December 6, 1926, to decide upon the manner in which the stock held by the Government in the National Coal Company should be voted. TheGovernor-General acknowledged receipt of this communication but declined to participate in the proposed meeting. The president of the Senate and the Speaker of the House of Representatives did in fact meet at the time and place specified in their letter to the Governor-General. It was then and there resolved by them that at the special meeting of the stockholders, the votes represented by the stock of the Government in the National Coal Company, should be cast in favor of five specified persons for directors of the company. On December 6, 1926, at 3 o'clock in the afternoon, the special meeting of the stockholders of the National Coal Company was held in accordance with the call. The Governor-General, through his representative, asserted the sole power to vote the stock of the Government. The president of the Senate and the Speaker of the House of Representatives attended the meeting and filed with the secretary of the company a certified copy of the minutes of the meeting of the committee held at the office of the company a half hour before. The Governor-General, through his representative, thereupon objected to the asserted powers of the President of the Senate and the Speaker of the House of Representatives, and the latter likewise objected to the assertion of the Governor-General. The chair recognized the President of the Senate and the Speaker of the House of Representatives in their capacity as majority members of the voting committee as the persons lawfully entitled to represent and vote the Government stock. To this the representative of the Governor- General made protest and demanded that it be entered of record in the minutes. The vote cast by the President of the Senate and the Speaker of the House of Representatives was in favor of Alberto Barretto,Milton E. Springer, Dalmacio Costas, Anselmo Hilario, and Frank B. Ingersoll. The Governor-General through his represetative, alleging representation of the Government stock, cast his vote in favor of Alberto Barreto, Romarico Agcaoili, Frank B. Ingersoll, H. L. Heath, and Salvador Lagdameo. The chair declared the ballot cast by the President of the Senate and the Speaker of the House as electing the names therein indicated, directors of the National Coal Company. Immediately after the stockholder's meeting, the persons declared by the chairman to have been elected, met and undertook to organized the board of directors of the National Coal Company by the

election of officers. All the directors for whom the President of the Senate and the Speaker of the House of Representatives voted and who were declared elected at the meeting of the stockholders participated in this meeting. Included among them, were the three defendants, Milton E. Springer, Dalmacio Costas, and Anselmo Hilario. The applicable legal doctrines are found in the Organic Law, particularly in the Organic Act, the Act of Congress of August 29, 1916, and in statutes enacted under authority of that Act, and in decisions interpretative of it. The Government of the Philippine Islands is an agency of the Congress, the principal, has seen fit to entrust to the Philippine Government, the agent, are distributed among three coordinate departments, the executive, the legislative, and the judicial. It is true that the Organic Act contains no general distributing clause. But the principle is clearly deducible from the grant of powers. It is expressly incorporated in our Administrative Code. It has time and again been approvingly enforced by this court. No department of the Government of the Philippine Islands may legally exercise any of the powers conferred by the Organic Law upon any of the others. Again it is true that the Organic Law contains no such explicit prohibition. But it is fairly implied by the division of the Government into three departments. The effect is the same whether the prohibition is expressed or not. It has repeatedly been announced by this court that each of the branches of the Government is in the main independent of the others. The doctrine is too firmly imbedded in Philippine institutions to be debatable. (Administrative Code sec. 17; Barcelon vs. Baker and Thompson [1905], 5 Phil., 87; U. S. vs. Bull [1910], 15 Phil., 7; Severino vs. Governor-General and Provincial Board of Occidental Negros [1910], 16 Phil., 366; Forbes vs. Chuoco Tiaco vs. Crossfield [1910], 16 Phil., 534; Province of Tarlac vs. Gale [1913], 26 Phil., 338; Concepcion vs. Paredes [1921], 42 Phil., 599; U. S. vs. Ang Tang Ho [1922], 43 Phil., 1; Abueva vs. Wood [1924], 45 Phil., 612; Alejandrino vs. Quezon [1924], 46 Phil., 83.) It is beyond the power of any branch of the Government of the Philippine Islands to exercise its functions in any other way than that prescribed by the Organic Law or by local laws which conform to the Organic Law. The Governor-General must find his powers and duties in the fundamental law. An act of the Philippine Legislature must comply with the grant from Congress. The jurisdiction of this court and other courts is derived from the constitutional provisions. These canons of political science have more than ordinary significance in the Philippines. To the Government of the Philippine Islands has been delegated a large degree of autonomy, and the chief exponent of that autonomy in domestic affairs is the Philippine Legislature. TheGovernor-General on the other hand of the Government and symbolizes American sovereignty. That under such a political system, lines of demarcation between the legislative and the executive departments are difficult to fix, and that attempted encroachments of one on the other may occur, should not dissuade the Supreme Court, as the guardian of the constitution, from enforcing fundamental principles. The Organic Act vests "the supreme executive power" in the Governor- General of the Philippine Islands. In addition to specified functions,he is given "general supervision and control of all the departments and bureaus of the government of the Philippine Islands as far as is not inconsistent with the provisions of this act. "He is also made "responsible for the faithful execution of the laws of the Philippine Islands and of the United States operative within Philippine Islands."The authority of the Governor-General is made secure by the important proviso "that all executive functionsof Government must be directly under the Governor-General or within one of the executive departments under thesupervision and control of the Governor-General. "(Organic Act, secs. 21, 22.) By the Administrative Code, "the Governor-General, as chief Executive of the Islands, is charged

with the executive control of the Philippine Government, to be exercised in person or through the Secretaries of Departments, or other proper agency, according to law." (Se.58) The Organic Act grants general legislative power except as otherwise provided therein to the Philippine Legislature. (Organic Act, secs. 8, 12.) Even before the approval of the existing Organic Act, it was held that the Philippine Legislature has practically the same powersin the Philippine Islands within the sphere in which it may operate as the Congress of the United States. (Chanco vs. Imperial [1916], 34 Phil., 329.) The rule judicially stated is now that an Act of the Philippine Legislature which has not been expressly disapproved by Congress is valid, unless the subject-matter has been covered by Congressional legislation, or its enactment forbidden by some provision of the Organic Law. The legislative power of the Philippine Government is granted in general terms subject to specific limitations. (Gaspar vs. Molina [1905], 5 Phil., 197; U. S. vs. Bull, supra; In re Guarina [1913], 24 Phil., 37; U. S. vs. Limsiongco [1920],41 Phil., 94; Concepcion vs. Paredes, supra.) An independent judiciary completes the governmental system. Thejudicial power is conferred on the Supreme Couts, Courts of FirstInstance, and inferior courts. (Organic Act, se. 26) It is axiomatic that the Philippine Legislature was provided to make the law, the office of the Governor-General to execute the law, and the judiciary to construe the law. What is legislative, an executive, or a judicial act, as distinguished one from the other, is not alwayseasy to ascertain. A precise classification is difficult. Negatively speaking, it has been well said that "The legislature has no authority to execute or construe the law, the executive has no authority to make or construe the law, and the judiciary has no power to make or execute the law." (U. S.vs. And Tang Ho, supra.) It is legislative power which has been vested in the Philippine Legislature. What is legislative power? Judge Cooley says he understands it "to be the authority, under the constitution, to make laws, and to alter and repeal them." Those matters which the constitution specifically confides to the executive "the legislature cannot directly or indirectly take from his control." (Cooley's Constitutional Limitations, 7th ed., pp. 126-131, 157-162.) President Wilson in his authoritative work, "The State", page 487, emphasizes by italics that legislatures "are law makingbodies acting within the gifts of charters, and are by these charters in most cases very strictly circumscribed in their action." If this is true, the converse that legislative power is not executive or judicial or governmental power needs no demonstration. The Legislature essentially executive or judicial. The Legislature cannot make a law and them take part in its execution or construction. So the Philippine Legislature is not a partaker in either executive or judicial power, except as thePhilippine Senate participates in the executive power through the Governor-General, and except as the Philippine Senate participates in the executive power through having the right to confirm or reject nominations made by the Governor-General, and except as the Legislature participates in the judicial power through being made the sole judge of the elections, returns, and qualifications of its elective members and through having the right to try its own members for disorderly behavior. The Philippine, Legislature may nevertheless exercise such auxiliary powers as are necessary and appropriate to its indenpdence and to make its express powers effective. (McGrain vs. Daugherty [1927], 273 U. S., 135; 71 Law. ed., 580.) When one enters on a study of the abstract question, Where does the power to appoint to public office reside?, one is nearly buried in a mass of conflicting authority. Yet we have been at pains to review all of the cases cited by counsel and others which have not been cited. Shaking ourselves loose from the encumbering details of the decisions, we discern through them a few elemental truths which distiguish certain cases from others and which point the way for us in the Philippines. The first principle which is noticed is that the particular wording of the constitution involved, and its correct interpretation predetermines the result. Does the constitutions deny the legislative body the

right of exercising the appointing power. The legislature may not do so. (State vs. Kennon [1857], 7 O. St., 547; Clark vs. Stanley[1872], 66 N. C., 28.) Does the constitution confer upon the government the power to prescribe the manner of appointment. The authorities are in conflict as to whether the legislature the power to prescribe the manner of appointment. The authourities are in conflict as to whether the legislature may itself make the appointment. Does the constitution merely contain the usual clause distributing the powers of government and no clause regulating appointments. The weight of judicial opinion seems to be that the power of appointing to office is not exclusively an executive function and that the legislature may not only create offices but may also fill them itself, but with a vigorous opposition in most respectable quarters. (Contrast Pratt vs. Breckinridge [1901], 112 Ky., 1, and Statevs.Washburn [1901], 167 Mo., 680, with People vs. Freeman [1889], 80 Cal., 233, and Richardson vs. Young [1909], 122 Tenn., 471.) The second thought running through the decisions is that in the state governments, the selection of persons to perform the functions of government is primarily a prerogative of the people. The general powerto appoint officers is not inherent in any branch of the government. The people may exercise their political rights directly or by delegation. Should the people grant the exclusive right of appointment to the governor, he possesses that right; but if they should otherwise dispose of it, it must be performed as the sovereign has indicated. Inasmuch, however, as the legislative body is the repository of plenary power, except as otherwise restricted, and the chief executive of the State is not, legislative bodies usually possess wide latitude in the premises. But this situation does not obtain in the Philippines where the people are not sovereign, and where constitutional rights do not flow from them but are granted by delegation from Congress. It may finally be inferred from the books that the appointment of public officials is generally looked upon as properly an executive function. The power of appointment can hardly be considered a legislative power. Appointments may be made by the Legislature of the courts, but when so made be taken as an incident to the discharge of functions properly within their respective spheres. (State vs. Brill [1907], 100 Minn., 499; Stockmanvs. Leddy [1912], 55 Colo., 24; Spartanburg County vs. Miller [1924], 132 S. E., 673; Mechem on Public Officers, secs. 103-108; Mechem, The power of Appoint to Office; Its Location and Limits, 1 Mich. Law Rev. [1903], 531.) From the viewpoint of one outside looking in, it would seem that the State legislatures have all too often been permitted to emasculate the powers properly belonging to the executive deparment, and that the governor of the State has been placed with the responsibility of administering the government without the means of doing so. The operations of the executive department have been fundamentally variedby the legislative department. The legislature has absorbed strength, the executive has lost it. This tendency has rather been tolerated than acquiesced in. The executive should be clothed with sufficient power to administer efficiently the affairs of state. He should have complete control of the instrumentalities through whom his responsibility is discharged. It is still true, as said by Hamilton, that "A feeble executive implies a geeble execution of the government. A feeble execution is but another phrase for a bad execution; and a government ill executed, whatever it may be intheory, must be in practice a bad government." The mistakes of State governments need not be repeated here.. The history of the power of appointment and the stand taken by the judiciary on the question in the State of Kentucky is of more than ordinary interest. Kentucky was permitted to become an independent State by Virginia. The clause in the Kentucky constitution separating and guarding the powers of government came from the pen of the author of the Declaration of Independence, Thomas Jefferson. He it was who, in a letter to Samuel Kercheval, dated July 16, 1816, said: "Nomination to office iss an executive function. To give it to thelegislature, as we do is Virginia, is a violation of the principle of the separation of powers. It swerves the members from correctness by the temptation to intrigue for office for themselves, and to a corrupt barter for votes, and destroys responsibility by dividing it among a multitude." Possibly inspired to such action by the authorship of the portion of the

State constitution which was under consideration, in the early days of the Supreme Court of Kentucky, Mr. Chief Justice Robertson in the case of Taylor vs. Commonwealth ([1830], 3 J. J.Marshall, 4010) announced that "Appointmets to office are intrinsically executive," but that it might be performed by a judicial officer when the duties of the office pertains strictly to the court. This opinion was shaken in the case of Sinking Fund Commissioners vs. George([1898], 104 Ky., 260) only to be afterwards reaffirmed in Pratt vs. Breckinridge ([1901], 112 Ky., 1), and in Sibert vs. Garrett ([1922], 246 S. W., 455). in the decision in the latter case, one of the most recent on the subject, the Supreme Court of Kentucky after reviewing the authorities refused to be frightened by the bugaboo that numerically a greater number of courts take a contrary view. It said: "We are convinced that they by doing so are inviting destruction of the constitutional barriers separating the departments of government, and that our interpretation is much the sounder one and is essential to the future preservation of our constitutional form of government as originally intended by the forefathers who conceived it. . . . Such power (of appointment) on the part of the Legislature, if a full exercise of it should be persisted in, would, enable it to gradually absorb to itself the patronage and control of the greater part of the functioning agencies of the state and county governments, and, thus endowed, it would be little short of a legislative oligarhy." It is of importance, therefore, not to be confused by Statedecisions, and invariably to return to the exact provisions of the Philippine Organic Law which should be searched out and effectuated. The right to appoint to office has been confided, with certain well defined exceptions, by the Government of the United States to the executive branch of the government which it has set up in the Philippines. Let the Organic Law speak upon this proposition. The original government inaugurated in the Philippines after American occupation was military in nature, and exercised all the powers of government, including, of course, the right to select officers. The original civil authority with administrative functions establishedhere was the second Philippine Commission. President Mckinley, in his Instructions to the Commisions of April 7, 1900, ever since considered as the initial step taken to introduce a constitutional government, provided that until further action should be taken by congress or otherwise, "The Commission will also have power . . . . to appoint to office such officers under the judicial, educational, and civil- service systems, and in the municipal and departmental goernments, as shall be provided for." When the first Civil Governor was appointed on June 21, 1901, the President again took account of the power of appointment in the following language: The power to appoint civil officers, hererofore Governor, will be exercised by the Civil Governor with the advice and consent of the commission." The Congress when it came to make legislative provision for the administration of the affairs of civil government in the Philippine Islands, in the Act of Congress of July 1, 1902, the Philippine Bill, "approved, ratified and confirmed," the action of the President, and in creating the office of Civil Governor and authorizing said Civil Governor to exercise powers of government to the extent and in the manner set forth in the exectutive order date June 21, 1901. (Philippine Bill, sec. 1.) Congress in the same law provided that the Islands "shall continue to be governed as thereby and herein provided." (See opinion of Attorney-General Araneta on the power of the Governor-General to appoint and remove civil officers, 3 Op. Atty.-Gen., 563.) Thus stood the right to appoint to office for fourteen years. The Organic Act of August 29, 1916, included what follows on the subject of appointments. The governor-General "shall, unless otherwise herein provided, appoint, by and with the consent of the Philippine Senate, such officers as may now be appointed by the Governor-General,or such as he is authorized by law to appoint." (Organic Act, sec. 21.) The exception to the general grant is that the Philippine Legislature "shall provide for the appointment and removal of the heads of the executive departments by the Governor-General." (Organic Act, sec. 22.) Each House of the Philippine

Legislature may also elect a presiding officer, a clerk, a sergeant at arms, and such other officers and assistants as may be required. (Organic Act, sec. 18.) The Philippine Legislature is authorized to choose two Residentcommissioners to the United States. (Organic Act, sec. 20.) The prohibition on the local Legislature, which has been thought of as referring to the Resident Commissioners, is that "No Senator or Representative shall, during the time for which he may have been elected, be eligible to any office the election to which is vested in the Legislature, nor shall be appointed to any office of trust or profit which shall have been created or the emoluments of which shall have been increased during such term." (Organic Act, sec. 18.) The Administrative Code provides the following: "In addition to his general supervisory authority, the Governor-General shall have such specific powers and duties as are expressly conferred or imposed onhim by law and also, in particular, the powers and duties set forth," including th special powers and duties "(a) To nominate and appointofficials, conformably to law, to positions in the service of the Government of the Philippine Islands. (b) To remove officials from office conformably to law and to declare vacant the offices held by such removed officials. For disloyalty to the Government of theUnited States, the Governor-General may at any time remove a personfrom any position of trust or authority under the Government of the Philippine Islands." (Sec. 64 [a], [b].) The Administrative Code lists the officers appointable by the Governor-General. (Sec. 66.) It will be noticed that the Governor-General, in addition to being empowered to appoint the officers authorized by the Organic Act and officers who thereafter he might be authorized to appoint, was to continue to possess the power to appoint such officers as could be appointed him when the Organic Act wa approved. The careful phraseology of the law and the connection provided by the word "now" with prior Organic laws is noteworthy. It would not be at all illogical to apply the same rule to the Governor-General in his relations with the Legislature which the judiciary uniformly applies to the courts in their relations with the Legislature, which is, that the Legislature may add to, byt may not diminish, the jurisdiction of the courts The Legislature may add to, but may not diminish, thepower of the Governor-General. (Organic Act, sec. 26; Barrameda vs. Moir [1913], 25 Phil., 44; In re Guarina, supra; U. S. vs. Limsiongco, supra.) It will also not escape attention that the only reference made to appointments by the Legislature relates to the selection of Secretaries of Departments, of officers and employees for the Legislature, and of Resident Commissioners, from which it would naturally be inferred that no other officers and employees may be chosen by it. The exceptions made in favor of the Legislature strengthen rather than weaken the grant to the executive. The specific mention of the authority of the Legislature to name certainofficers is indicative of a purpose to limit the legislative authority in the matter of selecting officers. The expression of one things not expressed. Had it been intended to give to the Philippine Legislature the power to name individuals to fill the offices which it has created, the grant would have been included among the legislative powers and not among the executive powers. The administrative controlof the Government of the Philippine Islands by the Governor-Generalto whom is confided the responsibility of executing the laws excludes the idea of legislative control of administration. Possibly, the situation may better be visualized by approching the question by a process of elimination. Is the power of appointment judicial? No one so contends. Is the power of appointment legislative? Not so if the intention of the Organic Law be carried out and if the Legislature be confined to its law-making function. Is the power of appointment executive? It is. The exact question of where the power of appointment to office is lodged has never heretofore arisen in this jurisdiction. But a decision of this court and a controlling decision of the United States Supreme Court are in point.

In Concepcion vs. Parades, supra, this court had before it a law which attempted to require a drawing of lots for judicial positionss in derogation of executive power. The case was exhaustively argued andafter prolonged consideration, the questioned portion of the law was held invalid as in violation of the provisions of the Organic Act. Following the lead of Kentucky, it was announced that "Appointment to office is intrinsically an executive actinvolving the exercise of discretion." In the case of Myers vs. United States ([1926], 272 U. S., 52; 71 Law. ed., 160), the United States Supreme Court had presented the question whether, under the Constitution, the President has the exclusive power of removing executive officers of the United States whom he has appointed by and with the advice and consent of the Senate. The answer was that he has. The decision is ephocal. The Chief Justice quoted from Madison the following: If there is a principle in our Constitution, indeed in any free Constitution more sacred than another, it is that which separates the legislative, executive and judicial powers. If there is any point inwhich the separation of the legislative and executive powers ought to be maintained with great caution, it is that which relates to officers and offices. 'The powers relative to offices are partly legislative and partly executive. The legislature creates the office, defines the powers, limits its duration and annexes a compensation. This done, the legislative power ceases. They ought to have nothing to do with designating the man to fill the office. That I conceive to be of an executive nature. Although it be qualified in the Constitution, I would not extend or stain that qualification beyond the limits precisely fixed for it. We ought always to consider the Constitution with an eye to the principles upon which it was founded. In this point of view, we shall readily conclude that if the legislaturedetermines the powers, the honors, and emoluments of an office, we should be insecure if they were to designate the officer also. The nature of things restrains and confines the legislative and executive authorities in this respect; and hence it is that the Constitution stipulates for the independence of each branch of the Government.' (1 Annals of Congress, 581, 582. Also see Madison in The Federalist, Nos. 47, 46.). The distinguished Chief Justice said: "* * * The Constitution was so framed as to vest in the Congress all legislative powers therein granted, to vest in the President the executive power, and to vest in one Supreme Court and such inferior courts as Congress might establish, the judicial power. From this division on principle, the reasonable construction of the Constitutionmust be that the branches should be kept separate in all cases in which they were not expressly blended, and the Constitution should be expounded to blend them no more than it affirmatively requires. Madison, 1 Annals of Congress, 497. xxx xxx xxx

The vesting of the executive power in the President was essentially a grant of the power to execute the laws. But the President alone and unaided could not execute the laws. He must execute them by the assistance of subordinates. This view has since been repeatedlyaffirmed by this court. . . . As he is charged specifically to take care that they be faithfully executed, the reasonable implication, even in the absence of express words, was that as part of his execute power he should select those who werre to act for him under his direction in the execution of the laws. The further implication must be, in the absence of any express limitation respecting removals, that as his selection of administrative officers is essential to the execution of the laws by him, so must be his power of removing those for

whom he cannot continue to be responsible. (Fisher Ames, 1 Annals of Congress, 474.) It was urged that the natural meaning of the term "executive power" granted the President included the appointment and removal of executive subordinates. If such appointments and removals were not an exercise of the executive power, what were they? They cetainly were not the exercise of legislative or judicial power in government as usually understood. It is quite true that in state and colonial governments at the time of the Constitutional Convention, power to make appointments and removals had sometimes been lodged in the legislatures or in the courts, but such a disposition of it was really vesting part of the executive power in another branch of the Government. xxx xxx xxx

We come now to a period in the history of the Government when both Houses of Congress attempted to removes this constitutionalconstruction and to subject the power of removing executive officers appointed by the President and confirmed by the Senate to the control of the Senate, indeed finally to the assumed power in Congress to place the removal of such officers anywhere in the Government. xxx xxx xxx

The extreme provisions of all this legislation were a full justification for the considerations so strongly advanced by Mr. Madison and his associates in the First Congress, for insisting thatthe power of removal of executive officers by the President alone wasessential in the division of powers between the executive and the legislative bodies. It exhibited in a clear degree the paralysis to which a partisan Senate and Congress could subject the executive arm and destroy the principle of executive responsibility, and separation of the powers sought for by the framers of our Government, if the President fhad no power of removal save by consent of the Senate. It was an attempt to redistribute the powers and minimized those of the President. xxx xxx xxx

For the reasons given, we must therefore hold that the provision of the law of 1876 by which the unrestricted power of removal of first class postmasters is denied to the President is in violation of the Constitution and invalid. Membership in the Committee created by Acts Nos. 2705 and 2822 is an office. No attempt will be made to accomplish the impossible, which is to formulate an exact judicial definitions of term "office." The point is that the positions in question constitute an "office," whether within the meaning of that word as used in the Code of Civil Procedure under the topic "Usurpation of Office," and in the jurisprudence of Ohio from which these portions of the Code were taken; whether within the local definitions of "office" found in the Administrative Code and the Penal Code; or whether within the constitutional definitions approved by the United States Supreme Court. (Code of Civil Procedure, secs. 197 et seq., 519; Act No. 136, sec. 17; State vs. Kennon, supra, cited approvingly in Sheboygran co. vs. Parker [1865], 3 Wall., 93; Administrative Code, sec. 2; Penal Code, arts. 264, 401.) Paraphrasing the United States Supreme Court in alate decision, there is not lacking the essential elements of a public station, permanent in character, created by law, whose incidents and duties were prescribed by law. (Metcalf & Eddy vs.Mitchell [1926], 269 U. S., 514; U. S. vs. Maurice [1823], 2 Brock., 96; U. S. vs.Hartwel [1867], 6 Wall., 385.) The Legislature did more than add incidentalor occasional duties to existing executive offices for two of the members of the voting committee are representatives of thelegislative branch. The Supreme Court of North Carolina has

held that the Act of the General Assembly giving to the President of the Senate and the Speaker of the House of Representatives the power to appoint proxies and directors in all corporations in which the State has an interest, creates a public office and fills the same by appointment of the Legislature. (Clark vs. Stanley [1872], 66 N. C., 28;Howerton vs. Tate [1873], 68 N. C., 498; Shoemaker vs. U. S. [1892], 147 U. S., 282; Advisory Opinion to Governor [1905], 49 Fla., 269; Mechem on Public Officers, Ch. I.) To tell the truth, it is possible that the earnestness of counsel has just led us to decide too much. Not for a moment should there be dismissed from our minds the unusual and potently effective proviso of section 22 of the Organic Act, "That all executive functions of the government must be directly under the Governor-General or within one of the executive departments under the supervision and control of the Governor-General." At the very least,the performance of duties appurtenant to membership in the voting committee is an executive function on the Government, which the Organic Act requires must be subject to the unhampered control of the Government-General. The administrative domination of a governmentally organized and controlled corporation is clearly not a duty germane to the law-makingpower. The incorporation of the National Coal Company has not served to disconnect the Company or the stock which the Government owns in it from the Government and executive control. The Philippine Legislatureis empowered to create and control private corporations. (Martinez vs. La Asociacion de Seoras Damas del Santo Asilo de Ponce [1909], 213 U. S., 20.) The National Coal Company is a private corporation.(National Coal Company is a private corporation. (National Coal Company vs. Collector of Internal Revenue [1924], 46 Phil., 583.) By becoming a stockholder in the National Coal Company, the Goverment divested itself of its sovereign character so far as respects the transactions of the corporation. (Bank of the U. S. vs. Planters' Bank of Georgia [1824], 9 Wheat., 904.) Unlike the Government, the corporation may be sued without its consent, and is subject to taxation. Yet the National Coal Company remains an agency or instrumentality of government. Mr. Chief Justice Marshall in speaking of the Bank of the United States said, "It was not created for its own sake, or for private purposes. It has never been supposed that Congress could create such a corporation." (Osborn vs. Bank of the U. S. [1824], 9 Wheat., 738; National Bank vs. Commonwealth [1869], 9 Wall., 353; Railroad Co. vs. Peniston [1873], 18 Wall., 5; Chesapeake & Delaware Canal Co. vs. U. S. [1918], 250 U. S., 123.) Of the National Coal Company, it has been said by Mr. Justice Johnson as the organ of the court in National Coal Company vs. Collector of Interanl Revenue,supra, that "The Government of the Philippine Islands is made the majority stockholder, evidently in order to insure proper governmental supervision and control, and thus to place the Government in a position to render all possible encouragement, assistance and help in the prosecution and furtherance of the company's business.' The analogy is closer in the companionNational Bank case, No. 27225. It further is inconvertible that the Government, like any other stockholder, is justified in intervening in the transactions in the corporation, and in protecting its property rights in the corporation. Public funds were appropriated to create the National Coal Company. Those funds were used to purchase stock. The voting of the government stock is the prerogative of the stockholder, not the prerogative of the corporation. It is transaction in, but not of, the corporation. The stock is property. The Government, the owner of the majority stock in the company, naturally dominates the management of its property. The Government may enforce its policies and secure relief in and through the corporation and as stockholder. The situation will be better understood if it be recalled that, in addition to the National Coal company (Acts Nos. 2705 and 2822), the Philippine Legislature has created the Philippine National Bank (Acts Nos. 2612, 2747, 2938, and 3174), the National Petroleum Company (Act No. 2814), the National Development Company (Act No. 2849), the National Cement Company (Act No. 2855), and the NationalIron Company (Act No. 2862). The aggregate authorized capital stock of these companies is

P54,500,000. The Legislature has in each of these instances directed that a majority of the shares of stock shall be purchased for the Government, and has appropriated money for this purpose. There have likewise been authorized corporations for the promotion of the merchant marine (Act No. 2754). The stock of the Manila Railroad Company has been purchased for the Government. (Acts Nos. 2574, 2752, and 2923.) All these are conspicuous instances of a paternally inclined government investing large sums in business enterprises which after acquisition or organization have vitally concerned the Government. In all of the companies mentioned, the stock is to be voted by a committee or board of control, consisting of the Governor-General, the President of the Senate, and the Speaker of the House of Representatives. The power of the majority stckholders to vote the government stock in the corporation carries with it the right, under our Corporation Law, to elect all the directors, to remove any or all of them, and to dissolve the corporation by voluntary proceedings. (Corporation Law, secs. 31, 34, 62.) In the case of the Philippine National Bank, the law explicitly enumerates variousfunctions of the bank which may not be performed without the express approval of the Board of Control. (Act No. 2938.) Very important property rights are involved in the transactions in the governmental directed corporations. Just as surely as the duty of caring for government property is neither judicial nor legislative in character is it as surely executive. Yet a majority of the voting committee or board of control is made up of the presiding officers of the two houses of the Legislature and they are in a position to dictate action to the directors and subordinate personel of these corporations. Based on all the foregoing considerations, we deduce that the power of appointment in the Philippines appertains, with minor exceptions, to the executive department; that membership in the voting committee in question is an office or executive function; that the National Coal Company and similar corporations are instrumentalities of the Government; that the duty to look after government agencies and government property belongs to the executive department; that the placing of members of the Philippine Legislature on the voting committee constitutes an invasion by the Legislative Department of the provileges of the Executive Department. Under a system of government of delegated powers, under which delagation legislative power vests in the Philippine Legislature and executive power vests in the Governor-General, and under which Governor-General and a specified power of appointment resides in the Philippine Legislature, the latter cannot directly or indirectly perform functions of an executive nature through the designation of its presiding officers as majority membersof a body which has executive functions. That is the meaning we gather from the tri-partite theory of the division of powers. That is the purport of the provisions of the Organic Law. That has been the decided trend of persuasive judicial opinion. The intimation contained in the conclusions just reached does not necessarily mean that the plaintiff will be privileged to substitute the directors designated by the Governor-General for those designated by the two presiding officers in the Legislature. The burden has heretofore been on the defenfants. From this point, it will be on the plaintiff. It is well established in quo warranto proceedingsthat the failure of the defendant to prove his title does not established that of plaintiff. (People vs. Thacher [1874], 10 N. Y., 525.) The answer to the problem comes from two directions. The acting Attorney-General of the United States finds the solutions in the supreme executive power entrusted to the Governor-General, while cousel for the plaintiff advance the rule of statutory construction pertaining to partial invalidity. We are frank to say that we experience difficulty in following the lead of the law officer of the Government of the United States. The Governor-General since the approval of the last Organic Act has had no prerogative powers. His powers are so clearly and distincly stated that there ought to be no doubt as to what they are. Like the Legislature and the judiciary,like the most inconspicuous employee, the Governor-General must find warrant for his every act in the law. At this stage of political development in the Philippines, no vague residuum of power should be left to lurk in any of the provsions of the Organic Law.

Counsel for the plaintiff rely on a decision of this court (U. S. vs. Rodriguez [1918], 38 Phil., 759) as best expressing the local rule regarding statutes void in part. Counsel for the defendants cite an earlier case (Barrameda vs. Moir [1913], 25 Phil., 44). As the principle announced in the last cited case is the more comprehensive and is much fairer to the defendants, we give it preference. It was there announce: Where part of a statute is void, as repugnant to the Organic Law, while another part is valid, the valid portion, if separable from the invalid, may stand and be enfored. But in order to do this, the valid portion must be so far independent of the invalid portion that it is fair to presume that the Legislature would have enacted it by itself if they had supposed that they could not constitutionally enact the other. Enough must remain to make a complete, intelligible, and valid statute, which carries out the legislative intent. The void provisions must be eliminated without causing results affecting the main purpose of the Act in a manner contrary to the intention of the Legislature. The language used in the invalid part of a statute can have no legal force or efficacy for any purpose whatever, and what remains must express the legislative will independently of the void part since the court has no power to legislate. Omitting reference to the President of the Senate and the Speaker of the House of Representative in section 4 of Act No. 2705, as amended by section 2 of Act No. 2822, it would then read: "The voting powerof all such stock owned by the Government of the Philippine Islands shall be vested exclusively in a committee consisting of the Governor- General." Would the court be justified in so enforcing the law without itself intruding on the legislative field? The Philippine Legislature, as we have seen is authourized to create corporations and offices. The Legislature has lawfully provided for a National Coal Company, but has unlawfully provided for two of its members to sit in the committee. Would this court be doing violence to the legislative will if the votig power be continued solely in the hands of the Governor-General until different action is taken by the Legislature? We conclude that we would not, for the reason that the primordial purpose of the Legislature was "to promote the business of developing coal deposits . . . and of mining . . . and selling the coal contained in said deposits." (Act No. 2705, sec 2; Act No.2822, sec.1.) The incidental purpose of the Legislature was to provide a method to vote the stock owned by the Government in the National Coal comapny. In the words of the United States Supreme Court, "The striking out is not necessarily by erasing words, but it may be by disregarding the unconstitutional provision and reading the statute as if that provision was not there." (Railroad companies vs. Schutte [1880], 103 U. S. 118; State vs.Westerfield [1897], 23 Nev., 468; State vs. Washburn, supra; State vs. Wright [1913], 251 Mo., 325; State vs.Clausen [1919], 107 Wash.,667; 1 Lewis Sutherland, Statutory construction, Second ed. Ch. IX.) The decision of the United States Supreme Court in Clayton vs. People ([1890], 132 U. S., 632) is particularly applicable on account of relating to the validity of an Act passed by a territorial legislature, the question of partial invalidity, and the contention likewise here made, that since the law in question had been on the statute books for a number of years, it must be considered as having been impliedly ratified by the Congress. An Act of the Legislature of Utah of 1878 had declared that the auditor and the treasurer shall be elected by the voters of the territory. In a decision handed down in 1886, the Supreme Court of the territory of Utah held the act void because in conflict with the organic act creating the territory, which provided that the governor, with the consent of the legislative council, shall appoint such officers. It further held that a territorial statute invalid when enacted is not validated by the failureof the congress expressly to disapprove it. (People vs. Clayton [1886], 4 Utah, 421.) The United States Supreme Court on appeal affirmed the judgment. It said:

It can hardly be admitted as a general proposition that under the power of Congress reserved in the Organic Acts of the territories to annul the Acts of their legislature the absence of any action by Congress is to be construed to be a recognition of the power of the Legislature to pass laws in conflict with the Act of Congress underwhich they were created. . . . We do not think that the acquiescenceof the people, or of the Legislature of Utah, or of any of its officers, in the mode for appointing the auditor of public accounts, is sufficient to do away with the clear requirements of the organic Act on that subject. It is also, we think, very clear that only that part of the Statute of Utah which is contrary to the Organic act, namely, that relating to the mode of appointment of the officer, is invalid; that so much of it as creates the office of auditor of public accounts and treasurer of the Territory is valid; and that it can successfully and appropriately be carried into effect by an appointment made by the governor and the Council of the Territory, as required in the Act of Congress. On the assumption, however, that the entire provision authorizing the voting committee be considered as wiped out, yet we think it would still devolve on the Governor-General to protect the public interests and public property. He is made responsible for the execution of the laws, and he would be unfaithful to that trust if, through inaction, instrumentalities of government should fail to function and government property should be permitted to be dissipated. Counsel for the dependants have injected the argument into the discussion that, as the President of the Senate and the Speaker of the House of Representatives are at least de facto officers, their right to act as members of the voting committee cannot be collaterally attacked, and that the defendants in this suit are the de jure members of the board of directors of National Coal Company. Contentions such as there are out of harmony with the avowed purpose to avoid technical obstruction, and to secure a definite expression of opinion on the main issue. However, it remains to be said that this is a direct proceeding to test the right of the defendants to the offices to which they consider themselves entitled. The inquiry then may go, as is proper in quo warranto proceedings, to the extent of determining the validity of the act authorizing the offices. The fallacy of the argument relating to the de facto doctrine is that, although there may be a de facto officer in a de jure office, there cannot be a de facto officer in a de fact office. There is no such thing as de facto office under an unconstitutional law. (Norton vs. Shelby County [1886], 188 U. S., 425.) Before terminating, a few general observations may be appropriate.The case has been carefully prepared and elaborately argued. All parties appear to desire to have the matter at issue definitely determined. We have endeavored to accomodate them. But in such a bitterly fought contest, the ingenuity of counsel presses collateralpoints upon us which the court need not resolve. We thus find it unnecessary to express any opinion on the propriety or legality of Executive Order No. 37, on that portion of section 18 of the Organic Act which disqualifies Senators or Representatives for election or appointment to office and no other subsidiary matters. Need it be added that the court is solely concerned with arriving at a correct decision on a purely legal question. Every other consideration to one side, this remains certainThe congress of the United States clearly intended that the Governor- General's power should be commensurate with his responsibility. The Congress never intended that the Governor-General should be saddled with the responsibility of administering the government and of executing the laws but shorn of the power to do so. The interests of the Philippines will be best served by strict adherence to the basic principles of constitutional government. We have no hesitancy in concluding that so much of section 4 of Act No. 2705, as amended by section 2 of Act No. 2822, as purports to vest the voting power of the government-owned stock in the National Coal Company in the President of the Senate and the Speaker of the House of Representatives, is unconstitutional and void. It results, therefore, in the demurrer being overruled,

and as it would be impractible for the defendants to answer, judgment shall be rendered ousting and excluding them from the offices of directors of the National Coalcompany. So ordered, without costs.

G.R. No. 127631 December 17, 1999 Atty. ANGEL AGUIRRE JR. as City Legal Officer of Manila; Atty. DOMINADOR MAGLALANG, Atty. MA. THERESA BALAGTAS and Atty. ANALYN T. MARCELO, all members of the Legal Panel of the Office of the City Legal Officer of Manila, petitioners, vs. EVANGELINE C. DE CASTRO, respondents.

PANGANIBAN, J.: The city legal officer of Manila has no disciplinary authority over the chief of the Legal Affairs and Complaint Services of the Division of City Schools of Manila. Inasmuch as the said official was appointed by and is a subordinate of the regional director of the Department of Education, Culture and Sports, she is subject to the supervision and control of said director. The power to appoint carries the power to remove or to discipline. The mere fact that her salary is sourced from city funds does not ipso facto place her under the city legal officer's disciplinary jurisdiction, absent any clear statutory basis therefor. The Case Before this Court is a Petition for Review on Certiorari 1 under Rule 45 of the Rules of Court seeking reversal of the October 22, 1996 Decision 2 of the Court of Appeals (CA) 3 in CA-GR SP No. 40183, the dispositive portion of which reads:
WHEREFORE, premises considered, the petition is GRANTED and the public respondent City Legal Office of Manila is directed to permanently cease and desist from further proceeding with Administrative Case CLO No. 24-96. 4

Likewise assailed is the CA's December 23, 1996 Resolution 5 denying reconsideration. The Facts The undisputed facts of the case are summarized by the Court of Appeals as follows:
[Respondent] 6 Atty. Evangeline C. De Castro is the Chief of the Legal Affairs and Complaint Services of the Division of City Schools of Manila. On February 1, 1996,

[respondent] received a letter from public respondent Angel Aguirre, Jr., City Legal Officer of Manila accompanied by copies of alleged complaints against her. [Respondent] was required in the said letter to explain within seventy two (72) hours upon receipt why no administrative sanctions shall be imposed upon her for gross misconduct and conduct unbecoming . . . a public officer in violation of the Civil Service Law, Rules and Regulations.

On February 6, 1996, [Respondent] Evangeline de Castro filed her answer-affidavit which was received on the same day by the Office of the City Legal Officer. Subsequently, on February 13, 1996, City Legal Officer Angel Aguirre, Jr. notified the [respondent] that her answer-affidavit was found unsatisfactory for which reason she was summoned to appear before the said City Legal Officer for the purpose of conducting a formal investigation. Two (2) days later or on February 15, 1996, [respondent] filed a motion to dismiss. She claimed that she [was] a subordinate of the Secretary of the Department of Education, Culture and Sports (DECS). Thus, the case should be endorsed to the Office of the DECS Secretary or its legal division as nowhere in RA 409, Charter of the City of Manila is there a provision conferring upon the Office of the City Legal Officer jurisdiction to try and investigate personnel of the DECS in general, or the Division of City Schools where petitioner is under, in particular. This motion to dismiss of [respondent] was denied in a resolution of the City Legal Officer dated February 21, 1996 citing Sec. 455 b(1) and (V) of the Local Government Code and Section 3(c) of the same code. In the said resolution it was held that the records of the personnel office disclose[d] that [respondent was] included in the plantilla of the City of Manila and therefore her salary derived wholly and mainly from the funds of the City for which reason she [was] subject to the disciplinary authority of the said City Legal Officer. Thereafter, on February 26, 1996, [respondent] was notified to appear before the panel formed by the City Legal Officer (CLO Panel) to hear administrative case CLO 24-96 filed against her for grave misconduct and conduct unbecoming . . . a public officer. [Respondent] filed a motion to reconsider the resolution dated February 21, 1996. This motion was again denied by the CLO panel in its order dated March 6, 1996.
Again, [respondent] moved to reconsider the above order which was likewise denied in the resolution of the CLO panel dated March 18, 1996. 7

Consequently, respondent elevated the matter to the Court of Appeals via a Petition for Certiorari and Prohibition. Ruling of the Court of Appeals Citing the Administrative Code of 1987, 8 the Court of Appeals ruled that the authority to discipline herein respondent rests with the regional director for the National Capital Region of the Department of Education, Culture and Sports (DECS), not with the city legal officer of Manila. It also held that the Local Government (LGC) did not repeal the pertinent provisions of the Administrative Code. Hence,

absent any contrary provision of the LGC, the CA opined that disciplinary authority over petitioner must remain with the DECS. The CA also noted that officers and staff members of the Division of City Schools were not among those whom the city mayor was authorized to appoint under the LGC. Hence, it ruled that respondent was not an employee of the City of Manila, and that the city legal officer had no authority to investigate her for administrative neglect or misconduct in office. Assuming arguendo that the city mayor was authorized to make a subsequent appointment to the respondent's position should it become vacant, the CA held that this power was not retroactive and could not apply to respondent who had been appointed by the regional director of the DECS. (LGC) did not repeal the pertinent provisions of the Administrative Code. Hence, absent any contrary provision of the LGC, the CA opined that disciplinary authority over petitioner must remain with the DECS. The CA also noted that officers and staff members of the Division of City Schools were not among those whom the city mayor was authorized to appoint under the LGC. Hence, it ruled that respondent was not an employee of the City of Manila, and that the city legal officer had no authority to investigate her for administrative neglect or misconduct in office. Assuming arguendo that the city mayor was authorized to make a subsequent appointment to the respondent's position should it become vacant, the CA held that this power was not retroactive and could not apply to respondent who had been appointed by the regional director of the DECS. Dissatisfied, the city legal officer of Manila lodged this Petition before this Court on January 21, 1997. 9 Issue The solitary issue presented for the Court's consideration is "whether or not the Office of the City Legal Officer of Manila has jurisdiction to investigate the complaint for grave misconduct filed against the respondent." 10 This Court's Ruling The Petition is bereft of merit. Sole Issue: Jurisdiction of the City Legal Officer Petitioners contend that respondent is a city employee under the supervision of the city mayor, because her salary is paid by the City of Manila. They base this argument on Section 455 (b-1v) 11 of the Local Government Code (LGC), which authorizes the city mayor to appoint city employees whose salaries and wages are wholly or mainly paid out of city funds; and on Section 455 (b-1-x), 12 which states that the mayor may institute administrative or judicial proceedings against erring city officials or employees. Petitioners' contentions are not persuasive. Under Book IV, Chapter V, Section 7(4) of the Administrative Code of 1987, the power to appoint and discipline first-level employees, which include

respondent, is specifically lodged with the regional director of the Department of Education, Culture and Sports. xxx xxx xxx (4) Appoint personnel to positions in the first level and casual and seasonal employees; and exercise disciplinary actions over them in accordance with the Civil Service Law. This is also clear in Book V, Section 47 (2) of the same Code; and in Section 32, Rule XIV of the Omnibus Rules Implementing Book V of the Administrative Code of 1987. Sec. 32. The Secretaries and heads of agencies and instrumentalities, provinces, cities, and municipalities shall have jurisdiction to investigate and decide matters involving disciplinary action against officers and employees under their jurisdiction. . . .. We agree with the CA that the LGC did not automatically repeal the provisions in the 1987 Administrative Code, contrary to petitioners' argument. There is no provision in the LGC expressly rescinding the authority of the DECS regional director to appoint and exercise disciplinary authority over first-level employees. On the other hand, "implied repeals are not lightly presumed in the absence of a clear and unmistakable showing of such intention."13 Furthermore, respondent's position as senior legal officer in the Division of City Schools is not one of the offices covered by the city mayor's power of appointment under the LGC. Sec. 454. Officials of the City Government. (a) There shall be in each city a mayor, a vice-mayor, sangguniang panlungsod members, a secretary to the sangguniang panlungsod, a city treasurer, a city assessor, a city accountant, a city budget officer, a city planning and development coordinator, a city engineer, a city health officer, a city civil registrar, a city administrator, a city legal officer, a city veterinarian, a city social welfare and development officer, and a city general services officer. (b) In addition thereto, the city mayor may appoint a city architect, a city information officer, a city agriculturist, a city population officer, a city environment and natural resources officer, and a city cooperatives officer.
xxx xxx xxx 14

Moreover, petitioners failed to show a specific provision in the LGC showing that the power to discipline officials in the Division of City Schools has been devolved from the regional director of the DECS to the city mayor. All that Section 17 (4) of the Local Government Code states is that the city must provide support for education and other such services and facilities. Likewise, Section 455 (b-1-x) of the Local Government Code, which provides that the city mayor "may cause to be instituted administrative or judicial proceedings against any official or employee of the city," is not necessarily incompatible with the provisions of the Administrative Code of 1987 authorizing the regional director to discipline national education employees. Nothing prohibits the mayor from filing complaints against respondent before the DECS.

Petitioners cite paragraph 12, Section 2 (a) of Executive Order (EO) 503, which states that devolved personnel are automatically reappointed by the local chief executive. Since respondent was deemed reappointed by the city mayor, it follows that the latter can exercise disciplinary authority over her. We are not convinced. First, the above provision applies to devolved personnel, and there is no proof whatsoever that respondent is one of them. Second, even if respondent can be considered as a devolved personnel, the cited paragraph of EO 503 must not be read in isolation from but in conjunction with the other paragraphs in Section 2 (a). Thus, paragraph 12 along with paragraphs 5, 6, 8, 13 and 14 15 of EO 503 deals with safeguards against termination, reduction of pay and diminution in rank of existing personnel; it is not about the power of the mayor to discipline personnel of the Division of City Schools. In effect, the said provision serves more to limit the appointing authority of the city mayor, whose acts must be circumscribed by the aforecited conditions. It is not incompatible and can exist with aforecited provisions of the Administrative Code. Indeed, it cannot be deemed to have divested the regional director of his disciplining power. As to petitioners' argument that respondent's salary is wholly or mainly paid out of city funds, suffice it to say that the source of the wages is not the only criteria in determining whether the payor may be deemed the employer. In fact, the most important factor is the control test; that is, who has the power to supervise and direct the work of the employee concerned? Absent any contrary statutory provision, the power to appoint carries with it the power to remove or to discipline. 16Since respondent was appointed by the regional director of DECS, she may be disciplined or removed by the latter pursuant to law. Finally, respondent's primary duty is to conduct investigations of cases involving teaching and nonteaching personnel of the Division of City Schools of Manila. The report on the results of her investigations is then submitted for final evaluation to the DECS regional director, who may approve, disapprove or allow respondent to modify it. This fact clearly shows that supervision over respondent is lodged with the regional director, not the mayor. All in all, petitioners have not convinced us that the Court of Appeals committed any reversible error. WHEREFORE, the Petition is hereby DISMISSED and the assailed Decision AFFIRMED. Costs against petitioners. SO ORDERED.

G.R. No. 92103 November 8, 1990

VIOLETA T. TEOLOGO, petitioner, vs. THE CIVIL SERVICE COMMISSION, DR. PRUDENCIO J. ORTIZ, DR. JOSE M. TUPAZ, JR., and MRS. RUBY G. GELVEZON, respondents. Tranquilino R. Gale for petitioner. Rene S. Sarabia for Ruby G. Gelvezon. Thelma S. Panganiban-Gamindo, Rogelio C. Limare and Florencio P. Gabriel, Jr. for CSC.

CRUZ, J.: The petitioner questions the appointment of private respondent Ruby G. Gelvezon as Chief Nurse I of the Representative Pedro Trono Memorial Hospital in Guimbal, Iloilo, as approved by the Civil Service Commission in its Resolution No. 89-321 dated May 5,1989. She claims she has a preferential right to be appointed to the said position, which she had held in an acting capacity for more than a year. She stresses that she is next-in-rank and not disqualified; Gelvezon, on the other hand, is not eligible. At the time of the challenged appointment, Gelvezon was no longer in the service, having retired as Senior Nurse of the said hospital on October 26,1986, subsequently collecting the gratuity, terminal leave and other benefits due her. She was therefore being reinstated under CSC MemorandumCircular No. 5, s-1983, which allows the reinstatement of a retiree only under certain conditions. The required request of the Regional Health Office No. 6 for authority to reinstate her was denied by Civil Service Regional Office No. 6 (CSRO No. 6) on the ground that the vacancy could be filled by promotion of qualified personnel, "attention being invited to the attached copy of the letter protest dated September 15,1988 of Ms. Violeta Teologo," one of two other aspirants for the same position. This denial was appealed to the Civil Service Commission by Dr. Prudencio J. Ortiz, Regional Health Director, who justified the appointment of Gelvezon on grounds of the "exigency of the service" and her superior qualifications compared to those of the other applicants. In the assailed resolution, the CSC set aside the denial of CSRO No. 6 and directed it "to take appropriate action on the appointment of Mrs. Ruby G. Gelvezon, subject to Civil Service Laws and Rules." It declared inter alia that "in the case of Mrs. Gelvezon, who is neither a retiree nor overage (57 or over), the head is not required to secure prior authority." The petitioner filed a motion for reconsideration insisting that the appointment of Gelvezon was violative of law and the pertinent administrative regulations, particularly CSC Memorandum Circular No. 5, s-1982. CSRO No. 6 also reminded the CSC that "grant of authority is a condition precedent before Mrs. Gelvezon can be reinstated in the service, considering that she retired therefrom as may be duly supported" by her application for retirement dated May 23, 1988 and its approval effective October 26, 1988. These representations were denied by the CSC in its Resolution No. 90-307, dated January 11, 1990, the dispositive portion of which read: WHEREFORE, the foregoing premises considered, the Commission resolved to deny, as it hereby denies, the instant motion for

reconsideration. The earlier decision of this Commission as embodied in CSC Resolution No. 89-321 dated May 5, 1989 is therefore affirmed. However, Mrs. Ruby G. Gelvezon, the Chief of Hospital II of RPTMH and the Regional Health Director of Region VI, Iloilo City are hereby admonished to be more prudent and circumspect in making representations, otherwise, a repetition of a similar act in the future will be dealt with administratively. The petitioner then came to this Court, claiming that the respondent CSC had committed grave abuse of discretion in sustaining the reinstatement of private respondent Gelvezon. Required to comment, the Solicitor General begins with an assertion of his right and duty "to present to the Court the position that will legally uphold the best interest of the Government although it may run counter to a client's position" and his "specific mandate to act and represent the Republic and/or the people before any court, tribunal, body or commission in any matter, action or proceeding which, in his opinion, affects the welfare of the people as the ends of justice may require." He then declares that he cannot agree with the respondent CSC and proceeds to explain why he thinks it is in error. In the recent case of Orbos v. Civil Service Commission 1 we sustained the authority invoked here by the Solicitor General. To be fair, however, we have made it clear that whenever he disagrees with the office he is supposed to represent, as in the case at bar, we shall allow such office to file its own comment in support of its position. Such comment has been submitted by public respondent CSC. It is the contention of the Solicitor General that the abovementioned resolutions of the CSC should be reversed as contrary to law and regulations. His view is that the CSC cannot direct the appointment of Gelvezon as this would be an encroachment on the prerogative of another department, besides the fact that there is no justification for her appointment in view of her ineligibility and the availability of other candidates. He notes especially her disqualification for the office for having misrepresented that she had merely resigned (and so needed no special authority to return) when the truth was that she had retired. It is true, as he maintains, that the CSC cannot usurp the appointing power from the appropriate authority and substitute its choice with another on the ground that the latter is better qualified. The discretion to determine this matter belongs to the appointing authority and not respondent CSC. The only function of the CSC in this regard is to ascertain whether the appointee possesses the prescribed qualifications and, if so, to attest to such fact. The only ground upon which the appointment may be disallowed is that the appointee is not qualified, not that he is in its opinion less qualified than others. The presumption is that the appointing authority is the best judge of this matter. As we said in Luego v. Civil Service Commission: 2 Appointment is an essentially discretionary power and must be performed by the officer in which it is vested according to his best lights, the only condition being that the appointee should possess the qualifications required by law. If he does, then the appointment cannot be faulted on the ground that there are others better qualified who should have been preferred. This is a political question involving considerations of wisdom which only the appointing authority can decide. The CSC denies that it has usurped the appointing power of another department and stresses that all it did was direct CSRO No. 6 to act on the appointment made by the Health authorities. It was not making the appointment itself or ordering it to be made but merely sustaining it under the applicable civil service rules and regulations. Finding that Gelvezon possessed the prescribed qualifications

and satisfied the requirements of CSC Memorandum-Circular No. 5, s-1983, it had merely approved her reinstatement as proposed by the Regional Health Director. It is not clear from the records who has appointed Gelvezon as Chief Nurse I. Dr. Jose M. Tupaz, Jr., Director of the Hospital, merely recommended her reinstatement to Dr. Prudencio M. Ortiz as Regional Health Director, who in turn requested from CSRO No. 6 authority to reinstate her. The reinstatement was presumably to be done by him. Under the law, it is the President of the Philippines or his alter ego, the Secretary of Health, who can make appointments of key personnel in the Department of Health. Yet, in the case at bar, Dr. Ortiz was asking for authority to reinstate Gelvezon as if he himself had the power to do this. It seems to us that Dr. Ortiz's request should at the very least have been coursed through or cleared by the Secretary of Health before being submitted to CSRO No. 6 with his approval. The reinstatement of Gelvezon would require a new appointment and it has not been shown that the Regional Health Director has the power to make such appointment. The presumption of regularity of official functions is not applicable because the power in question clearly belongs not to Dr. Ortiz but his superiors. But even assuming that the Regional Health Director was duly empowered to make the appointment, there were still special conditions that had to be fulfilled under Memorandum-Circular No. 5, s-1983, which, significantly, was promulgated by the Civil Service Commission itself. It must be remembered that we deal here not with the appointment of a newcomer to the public service. Gelvezon is a retiree. Additional requirements are prescribed for her appointment because it involves the reinstatement of a person who, after having left the government, has a change of heart and wishes to return. These requirements are embodied in CSC Memorandum-Circular No. 5, s-1983, reading in full as follows: MEMORANDUM CIRCULAR TO: ALL HEADS OF MINISTRIES, BUREAUS, AND AGENCIES OF THE NATIONAL AND LOCAL GOVERNMENTS, INCLUDING GOVERNMENT-OWNED AND CONTROLLED CORPORATIONS. SUBJECT: Guidelines on Appointment of Persons who have Reached the age of 57 Years. Reinstatement of persons who have been Previously Retired from the Service, and Retention in the Service of Persons who have Reached the Compulsory Retirement Age of 65 Years Pursuant to Presidential Decree No. 830 dated November 27, 1975 as implemented by Letter of implementation No. 47 dated August 18, 1976, the Civil Service Commission is empowered to reinstate in the service persons who have been previously retired from the service, and to extend the services of persons who have reached the compulsory retirement age of 65 years, except Presidential appointees. To insure effective and facilitate action on requests of such nature, the following guidelines are prescribed:

1. All requests shall be made by the appointing authority concerned and directly addressed to the respective Civil Service Regional Office. CSC Regional Offices have been given authority to act on such requests. 2. Requests for authority for such appointment, reinstatement or retention shall meet the following conditions as certified by the appointing authority. a. the exigencies of the service so require; b. the officer or employee concerned possesses special qualification not possessed by other officers or employees in the agency where he is to be appointed or retained; and c. the vacancy cannot be filled by promotion of qualified officers or employees in the agency concerned, or by transfer of qualified officers or employees from other government agencies, or there are no eligibles in the appropriate register of the Commission available for certification to the vacancy. 3. No person shall be reinstated if he has been separated from the service through delinquency or misconduct on his part or if he has been separated under LOI Nos. 11, 14, 14-A, and 14-B unless he has been granted executive clemency by the President. 4. Each request must be accompanied by a medical certificate issued by a government physician certified that the person is still physically and mentally healthy to be appointed in the service. 5. Officers or employees who have been recommended for appointment, reinstatement, or retention in the service shall not be allowed to assumed or continue in office pending receipt of authority from the Civil Service Regional Office concerned. Henceforth, all requests relating to the above matters should make reference to this Memorandum Circular. This Memorandum Circular shall take effect immediately. (SGD.) ALBIN A MANA LODANS Chairm an August 1, 1983 (Emphasis supplied). The Solicitor General maintains that the appointment of Gelvezon, assuming it has been made by the appropriate authority, nevertheless does not meet the three conditions mentioned in Paragraph 2

of the memorandum-circular. Neither is the authorization to reinstate required in Paragraph 5 sustainable under the proven facts. Like the assessment of the appointee's qualifications, the determination of whether the appointment is demanded by the exigencies of the service should be made by the appointing authorities themselves, at least in the first instance. As it is they who can best understand the needs and operations of their own offices, their findings on this matter are entitled to great respect even from this Court. We note, however, that in meeting the requirement of Paragraph 2(a), Dr. Tupas, as Director of the RPTMH merely said in his recommendation. 3 1. That the exigency of the service demands that the position should be filled. Problems in the Nursing Service have cropped up, wanting of the attendance of a nursing administrator which may assume, unmanageable magnitude if left unsolved. This same recommendation was reiterated verbatim by Dr. Ortiz in his own letter to CSRO No. 6 requesting authority to reinstate Gelvezon . 4 Its tortuous construction aside, the above-quoted statement actually says nothing. It is no more than so many cliches stringed together to satisfy the requirement, without any earnest effort to specify the problems facing the Nursing Service and why they "may assume unmanageable magnitude if left unsolved" because of the non-appointment of the recommendee. The "exigency of the service" is not explained nor is it shown why it "demands" the filling of the position. The necessity for Gelvezon sounds exaggerated. The generalization seeks more to impress than to inform and persuade. If a meaningless justification like this could suffice, the requirement might as well be discarded altogether as a useless formality. Regarding subsection (b), the respondents stress that in the examination given by the Selection, Placement and Promotion Board of the RPTMH, Gelvezon placed first with a rating of 88.25%, followed by Medalla P. Balandra with 87.5% and Violeta T. Teologo with 83.25%. This was probably the main reason for the conclusion that Gelvezon was the best candidate among the three and for the following encomium from Dr. Ortiz (again echoing Dr. Tupaz word for word):
2. Mrs. Ruby G. Gelvezon brings along with her the degree of competence, respectability and dedication to service, qualities very desirable among people in the Civil Service, especially in the Department of Health. These qualities are found wanting in the other applicants. 5

It is not explained why applicants Balandra and Teologo are "wanting" in the qualities of "competence, respectability and dedication to service" that seem to be the exclusive virtues of the private respondent. The statement is itself wanting for not stating what other special qualifications Gelvezon possessed, besides topping the examination, that were not possessed by the other candidates. The qualifications of these aspirants were not discussed at all and were probably simply dismissed as irrelevant. But they are not, of course, for the requirement is that the appointee must possess special qualifications "not possessed" by the other candidates. As we see it, the recommendation is at best an unfair commentary on Balandra and Teologo, at worst an undeserved disparagement of their credentials. These are not so far behind those of Gelvezon, especially in the case of Balandra, or even of Teologo, who had served as acting Chief Nurse and holds the degree of Bachelor of Science in Nursing. Gelvezon finished only the Graduate Nurse course.

The discretion given the appointing authority is subject to stricter review where the person appointed is being returned to the government after voluntarily retiring and collecting all the benefits appurtenant to such retirement. The earlier approval of Gelvezon's retirement signifies that her services as Senior Nurse were dispensable in 1986. Suddenly she is needed again. It must take more than the usual explanation to justify her reinstatement now on the ground that her services are after all indispensable. A retiree cannot just resume where he left off without the special qualifications (not possessed by the other candidates) required in Paragraph 2(b). Even assuming that Gelvezon does have these qualifications, her appointment is still not defensible under Paragraph 2(c) because there are other candidates for the office who are eligible and available. The rule expressly allows reinstatement only "if the vacancy cannot be filled by promotion of qualified officers or employees in the agency concerned." It is true that the next-in-rank rule admits of exceptions, as we have ruled in many cases. 6 But deviation from that rule requires special justification in the case at bar because a retiree should ordinarily not be allowed to pre-empt incumbent aspirants. The treatment of Paragraph 5 is still another matter that is not easy to understand. Contrary to the original findings of the respondent CSC, there was a need for authority to reinstate Gelvezon because she had retired from the public service four years ago. The reason for the original erroneous finding was her suppression of that material fact. Confronted later with the record, she could not deny that she had indeed not merely resigned but retired. The CSC then retracted its earlier statement and conceded that as a retiree Gelvezon was directly covered by the memorandum-circular. Nevertheless, by some queer logic, it blandly declared in its Resolution No. 90-037: ... Moreover, the Commission, in said Resolution, directed CSRO No. 6 to act on the appointment of Mrs. Gelvezon for the reason that the Commission found that said Mrs. Gelvezon merely resigned from her position and thus, CSC MC No. 5, series of 1983 does not apply to her case. By this action of the Commission, whatever defect there may be in the questioned appointment of Mrs. Gelvezon to the contested position is thus validated or rectified. The Court feels that in giving such authority, the CSC was unduly forebearing. Even if Paragraph 2 were disregarded, Gelvezon would still not qualify for the position because she had falsified her application and concealed the fact that she was a retiree. It is plain that she was less than honest. As the CSC itself later declared: A keen restudy of the case reveals that Mrs. Gelvezon actually filed an Application for Retirement under RA 1616 on May 23, 1986 effective October 26, 1986, as shown by the said document and her signature in it. More importantly, in a letter dated July 12,1988 to the Secretary of the Department of Health (DOH), the Manager of the Government Service Insurance System (GSIS), Iloilo Branch, Iloilo City, approved the said application for retirement of Mrs. Gelvezon effective October 26, 1986, which approval was docketed as Retirement Gratuity No. ILO-RG 003331. Hence, it can be said that a misrepresentation or suppression of fact was made by Mrs. Gelvezon, the Chief of Hospital II of RPTMH and the Regional Health Director as to the alleged resignation of Mrs. Gelvezon ..., (Emphasis supplied). One wonders why, despite this finding, the CSC still approved Gelvezon's appointment, deciding simply to rap her on the wrist with a mere admonition. To use the language of Rule 111, Section 23, of Civil Service Rules and Personnel Actions and Policies, she "had intentionally made a false statement of a material fact or had practiced or attempted to practice a deception or fraud in

connection with her appointment." Yet the CSC brushed aside this offense as a minor infraction that deserved no sterner action than a mild reproof. Her reinstatement does not square with the high standards the CSC has itself set for the members of the Civil Service. As the constitutional body charged with the improvement of the quality of the civil service, the CSC should have been the first to question Gelvezon's appointment instead of heartily endorsing it. Parenthetically, we note the Solicitor General's observations that Gelvezon was not really being reinstated as she had never before held the position of Chief Nurse I, having retired only as Senior Nurse, He is correct, strictly speaking, but the word out "reinstatement" was probably used in a generic sense to mean simply returning to the service. At any rate, the point is not really material because the memorandum-circular speaks of "appointment, reinstatement or retention" of the persons covered by its provisions. We hold, in sum, that as a retiree, Gelvezon could not be simply reinstated like any new appointee but had to satisfy the stringent requirements laid down by CSC Memorandum-Circular No. 5, s-1983. While it is true that the appointing authority has wide discretion to determine the need to appoint and to assess the qualifications of the person to be appointed, that discretion may not be exercised exgratia but "in conformity to the spirit of the law and in a manner to subserve the ends of substantial justice." 7 That discretion may be reviewed and reversed in proper cases, especially where extraordinary care is required to attend its exercise, as in the case at bar. Apart from the fact that the Regional Health Director does not appear to be the official authorized to appoint the private respondent, we are not convinced that Gelvezon was the best choice under the particular circumstances of this case, not the least important of which was the shunting aside of the other candidates, who were eligible and available, besides being incumbent in the service. We also feel that while not the crucial consideration, the private respondent's disqualification should have been taken into serious account in comparing the over-all competence of the candidates instead of being dismissed as a light and forgivable misdeed. It is really curious that Gelvezon was accommodated in the disputed position despite the confluence of formidable arguments against her reinstatement. For prejudicing the rights of the other qualified candidates, the grave abuse of discretion clearly shown here should be corrected and reversed. Promotions in the Civil Service should always be made on the basis of qualifications, including occupational competence, moral character, devotion to duty, and, not least important, loyalty to the service. The last trait should always be given appropriate weight, to reward the civil servant who has chosen to make his employment in the Government a lifetime career in which he can expect advancement through the years for work well done. Political patronage should not be necessary. His record alone should be sufficient assurance that when a higher position becomes vacant, he shall be seriously considered for the promotion and, if warranted, preferred to less devoted aspirants. WHEREFORE, certiorari is GRANTED. CSC Resolution Nos. 89-321 and 90-037 are hereby SET ASIDE as NULL AND VOID. It is so ordered.

G.R. No. L-65439 November 13, 1985 PAMANTASAN NG LUNGSOD NG MAYNILA, petitioner vs. HON. INTERMEDIATE APPELLATE COURT, HON. FILEM0N FERNANDEZ, JR., HON. ALBINA MANALODANS as Commissioners of Civil Service Commission and HERNANI P. ESTEBAN, respondents. Office of the Legal Officer for petitioner.

GUTIERREZ, JR., J.: The sole issue raised in this petition is the status of respondent Hernani Esteban's appointment as Vice-President for Administration of the Pamantasan ng Lungsod ng Maynila that is, whether or not he holds the position in a permanent capacity as to guarantee as security of tenure. Respondent Esteban asserts that his appointment is permanent whereas the petitioner maintains its temporary and contractual nature such that the respondent may be dismissed at any time even without cause. Prior to his joining the Pamantasan, Dr. Esteban had been a permanent employee in the government service for twenty five (25) years. Until May 20, 1973, he was officially connected with the Philippine College of Commerce, a state-owned educational institution as its Vice-President for Academic Affairs. Shortly before that date, the Board of Trustees of the College in a bold move to streamline the college organization resolve to abolish the position of Vice-President for Academic Affairs. Private respondent was given the option to continue teaching at the Philippine College of Commerce which he accepted until his transfer to the Pamantasan ng Lungsod ng Maynila, upon the invitation of its president, Dr. Consuelo Blanco. At the Pamantasan, Dr. Esteban was initially extended an ad interim temporary appointment as Vice-President for Administration by Dr. Consuelo Blanco. Dr. Esteban received from the Secretary of Pamantasan a 'Notification of Confirmation of Temporary Appointment' dated June 28, 1973. His appointment was 'effective May 21, 1973 until June 30, 1974, unless sooner terminated.' On July 5, 1974, the Secretary of Pamantasan sent him a 'Notification of Renewal of Temporary Appointment' indicating that his appointment was renewed 'effective July 1, 1974 until August 31, 1974.' A month later, on August 30, 1974, he received from the University Secretary another 'notification of renewal of temporary appointment' informing him that the Board of Regents, on recommendation of the President of the University approved the renewal of his appointment 'effective September 1, 1974 until June 30, 1975' with an increased salary of P17,160 per annum. On October 15, 1974, incident to a further increase of his salary, Dr. Esteban was notified that his appointment as vice-president for administration at a salary of P17,600 per annum had been renewed effective September 1, 1974 until June 30, 1975.

On June 26, 1975, he received another 'Notification of Renewal of Temporary Appointment' as VicePresident for Administration with at salary of P21,760 per annum, 'effective July 1, 1975 until June 30, 1976.' On July 26, 1975, Dr. E qqqsteban discovered that he was not included in the list of employees recommended for permanent appointments. He wrote Dr. Consuelo Blanco requesting the conversion of his temporary appointment to a permanent one, considering his two and half (2) years service. On July 26, 1975, Dr. Esteban received an answer to his request from President Blanco who indicated various reasons for her not acting favorably on his request. On August 1, 1975, Dr. Esteban received a 'Notification of Ad Interim Appointment notifying him that the president of the university had approved his appointment as Professor III with a salary of P15,600 per annum 'effective August 1, 1975'. He was further designated as Director of the Institute of Continuing Education and Community Service with an honorarium of P5,676 per annum, likewise effective August 1, 1975. On August 7, 1975, Dr. Consuelo Blanco, issued a memorandum circular terminating Dr. Esteban's appointment as Vice-President for Administration effective July 31, 1975. His appointment dated June 26, 1975 and effective until June 30, 1976 had been withdrawn before it could be confirmed by the Pamantasan Board of Regents. On the same date, August 7, 1975, Dr. Esteban appealed to the Civil Service Commission for the protection of his tenure in the Pamantasan . On October 9,1975, the Civil Service Commission ruled that: The temporary nature of the appointment issued to Dr. Esteban as Vice President for Administration is conceded. Such being the Case, his services may be terminated at any time with or without request that he be extended permanent appointment ,or that his temporary appointment be converted into permanent one, it may be stated that the issuance of such appointment is addressed to the sound discretion of the appointing official. Dr. Esteban flied a motion for the reconsideration of that ruling. On January 14, 1976, the Civil Service Commission ruled favorably on Dr. Esteban's motion. It stated that he was fully qualified for the position of Vice-President for Administration and certified him "for appointment therein under permanent status." The Commission stated: In view thereof, and in the absence of any apparent justifiable reason why Dr. Esteban should remian under temporary status for the length of time prior to the withdrawal of his appointment as Vice President for Administration in that University, and as it further appears that he is fully qualified for the position in question in view of his extensive experience in the fields of public administration and management, this Commission hereby certifies him for appointment therein under permanent status. The Pamantasan, in turn, asked for the reconsideration of that ruling.

The Commission, in an undated Resolution No. 75, Series of 1976, came out with a statement which confused more than it clarified. It stated that its certification should not be interpreted as directing the reinstatement of Dr. Esteban because 'it was never intended to be so On May 28, 1976 Esteban asked the commission to reconsider Resolution No. 75, Series of 1976. He also asked for the payment of the salaries and allowances due him as of September 1975, which the Pamantasan had withheld. His request was denied by the commission in its undated resolution No. 158, Series of 1976. On September 15, 1976 Esteban reiterated his request for payment of his salaries. On September 20, 1976, he asked for a review of the Pamantasan's decision to terminate his appointment as Vice-President for Administration. On December 1, 1976, his request for payment of his salaries was referred by the Commission to the treasurer of the Pamantasan. On July 6, 1977, the Commission again modified its earlier resolution in as case. It ruled that Dr. Consuelo Blanco, had no authority to extend to Dr. Esteban an ad interim appointment as Vice President for Administration as only the Board of Regents was empowered to do that under Article 55 of the University Charter (Rep. Act 4196). However, it ruled that, as a de facto officer, he was entitled to be paid the salary of that position. Dr. Esteban and the Pamantasan filed motions for reconsideration of that ruling prompting the Commission to order them to submit "all papers and documents pertinent to that case." On June 6, 1978, Presidential Decree No.1409 was issued creating a Merits System Board in the Civil Service Commission to hear and decide cases brought before it on appeal by officers and employees who feel aggrieved by the determination of officials on personnel matters. The Board required the Pamantasan to submit its complete records on the appointment and termination of Dr. Esteban as vice-president for administration. While the records officer of the Pamantasan submitted copies of the notices sent to Esteban regarding his appointment as vice-president for administration, he did not submit a copy of the Board's Resolution No. 485 passed June 20, 1973 confirming the ad interim appointments of several academic and non-academic personnel of said university among which was that of Dr. Hernani Esteban "effective May 21, 1973." He produced a copy of the memorandum circular dated August 7, 1915 of the President of the Pamantasan terminating Dr. Esteban's service as of July 31, 1975. In Resolution No. 597 dated November 11, 1980, the Commissioner directed the Pamantasan to submit any document or documents directly or actually showing that Dr. Hernani Esteban was appointed vice-president for administration of the Pamantasan in a permanent capacity. On January 15, 1981, the Pamantasan by 2nd Indorsement, despite the existence of Board Resolution No. 485, replied that "we cannot find any document showing that Dr. Esteban was appointed ... in a permanent capacity. In view of the Pamantasan's failure to produce the minutes of the regular Board of Regents meeting on June 20, 1973 when Esteban's appointment was approved the Commission in its Resolution No. 81-279 dated March 5, 1981, concluded that there is truth to the claim of Dr. Esteban that his

appointment as Vice-President for Administration of the Pamantasan was approved as permanent. It cited Government of the Philippine Islands vs. Martinez, (44 Phil. 817) that when a party has it in his possession or power to produce the best evidence of which the case in its nature is susceptible and withholds it, the fair presumption is that the evidence is withheld for some sinister motive and that its production would thwart his evil or fraudulent purpose. The Commission ruled that "Dr. Hernani Esteban had been appointed Vice-President for Administration of Pamantasan with permanent status and that the temporary appointment issued to him did not alter his permanent status as he had 'already acquired a vested right as well as the right to security of tenure', that he cannot unceremoniously removed therefrom, nor can the status of his appointment be changed without cause, as provided by law and after due process." The Commission held that the termination of his services was obviously illegal. It directed his immediate reinstatement to the position of Vice-President for Administration of Pamantasan and the payment of his back salaries, allowances and other benefits which he failed to receive from the time he was separated therefrom. The Pamantasan filed a motion for reconsideration of that resolution. It also submitted for the first time a copy of Resolution No. 485. The Commission, in Resolution No. 71-510 dated April 23, 1981 chided the Pamantasan for having suppressed said piece of evidence from which "the intention of, or the accurate action taken by PLM Board of Regents on Dr. Esteban's appointment in question, may be determined." Following the decision of the Supreme Court in the case of Summers v. Ozaeta, (81 Phil. 760), the Commission denied the Pamantasan's motion for reconsideration and ruled that "Upon confirmation of the Board of Regents of the ad interim appointment of Dr. Esteban the same became permanent." Upon getting this ruling, the Pamantasan filed a petition for certiorari against Dr. Esteban and Civil Service Commissionssioners Filemon Fernandez, Jr. and Albina Manalo Dans. The petition was docketed as Civil Case No. 139840 of the Court of First Instance of Manila, Branch XIII. On January 8, 1982, the trial court rendered a decision reversing the Commission's Resolution No. 81-279 and adopted the earlier Commission Resolution dated July 6, 1977 holding that Private respondent Dr. Esteban's appointment was invalid, though he may be considered as a de facto vicepresident of the University up to October 9, 1975, the date when the Commission ruled that his appointment was temporary and could be terminated at any time. The private respondent appealed to the Intermediate Appellate Court. On September 26, 1983. the respondent Intermediate Appellate Court rendered a decision reversing the trial court's decision. The dispositive portion of the appellate decision reads: Wherefore, the appealed decision is hereby revised and set aside. The Pamantasan's petition forcertiorari is denied. Resolution No 81-279 dated March 5, 1981, as well as Resolution No. 81-510 dated April 23, 1981, of the respondent Civil Service Commission, declaring as permanent the appointment of the appellant Dr. Hernani Esteban as vice- president for administration of the university under the Board of Regents' Resolution No. 485 dated June 20, 1973, and ordering his immediate reinstatement to that position with back salaries, allowances and other benefits, is affirmed, provided he has not yet reached the age of compulsory retirement from the government service; otherwise, he shall be entitled to back salaries, allowances and other benefits only up to the time he should handle been reared from the said position.

From the decision of the Intermediate Appellate Court and after its motion for reconsideration had been denied petitioner Pamantasan ng Lungsod ng Maynila filed the present petition, now the subject of this review. We find no error in the pronouncements of the Intermediate Appellate Court. We rule in favor of the respondents. From the arguments, it is easy to see why the petitioner should experience difficulty in understanding the situation. Private respondent had been extended several "ad-interim" appointments which petitioner mistakenly understands as appointments temporary in nature. Perhaps, it is the literal translation of the word "ad interim" which creates such belief. The term is defined by Black to mean "in the meantime" or for the time being, Thus, an officer ad interim is one appointed to fill a vacancy, or to discharge the duties of the office during the absence or temporary incapacity of its regular incumbent (Black's Law Dictionary, Revised Fourth Edition, 1978). But such is not the meaning nor the use intended in the context of Philippine law. In referring to Dr. Esteban's appointments, the term is not descriptive of the nature of the appointments given to him. Rather, it is used to denote the manner in which said appointments were made, that is, done by the President of the Pamantasan in the meantime, while the Board of Regents, which is originally vested by the University Charter with the power of appointment, is unable to act. Thus, we held in Summers v. Ozaeta (81 Phil. 760): ... an ad interim appointment is one made in pursuance of paragraph (4), section 10, Article VII of the Constitution, which provides that the President shall have the power to make appointments during the recess of the Congress, but such appointments shall be effective only until disapproval by the Commission on Appointments or until the next adjournment of the Congress.' lt is an appointment permanent in nature, and the circumstance that it is subject to confirmation by the Commission on Appointments does not alter its permanent character. An ad interim appointment is disapproved certainly for a reason other than that its provisional period has expired. Said appointment is of course distinguishable from an 'acting' appointment which is merely temporary, good until another permanent appointment is issued. Not only is the appointment in question an ad interim appointment, but the same is also a confirmed ad interimappointment. In its Resolution No. 485, dated June 20, 1973, the Pamantasan Board of Regents verified respondent Esteban's appointment without condition nor limitation as to tenure. As of that moment, it became a regular and permanent appointment. In other words, if the Board of Regents is in session, the Pamantasan President merely nominates while the Board issues the appointment. But when the Board is not in session, the President is authorized to issue ad interimappointments. Such appointments are permanent but their terms are only until the Board disapproves them. If confirmed, the appointee's term is converted into the regular term inherent in the position. Petitioner centers its arguments and tries to fix the attention of the court to the fact that all notices of appointments, renewals, and confirmation thereof all declare the same to be temporary, carrying fixed commencement and termination dates, "unless sooner terminated." As expressed by public respondent, "... This stubborn insistence is anchored on the notifications of temporary appointment sent to private respondent Esteban by the Secretary of Pamantasan. However, this insistence deliberately ignores ... Resolution No. 485 dated June 20, 1973 of the Board of Regents ...". And correctly so argued. "In case of conflict between a notification issued by the Secretary of the University which is supposed to reflect the true content of a Board Resolution and the Resolution itself of said Board of Regents of said University, the latter is controlling for obvious reasons. The

Secretary of the University has no authority to alter or add something which is not provided for in the Resolution of the Board of Regents ...". Thus, respondent Intermediate Appellate Court held: The permanent nature of appellant's appointment was not altered or diminished by the misleading 'notifications' which were sent to him by the secretary of the university president, referring to his appointment as 'temporary', nor by his uninformed acceptance thereof without knowledge of the true contents of Resolution No. 485 which the university president appears to have studiously suppressed. There is nothing in the Pamantasan Board of Regents' Resolution No. 485 which suggests that respondent Esteban's appointment was temporary. The Board's action was to confirm or reject an existing ad interimappointment. If respondent's appointment was intended to be temporary, it should have been expressly stated. It cannot be made to rest on inconclusive evidence, specially because a temporary appointment divests the temporary appointee of the constitutional security of tenure against removal without cause even if he is a civil service eligible." (Tolentino v. de Jesus, 56 SCRA 167, cited in Cortez v. Bartolome, 100 SCRA 1). Further supporting private respondent's stand is the list of permanent personnel which was submitted to the Commission by the university president herself on March 3, 1975 for recognition of their permanent status by the Commission. The appellant's name was the first in that list (Exhibit 8B). The permanent status of private respondent's appointment as Vice-President for Administration at Pamantasan was recognized by the Civil Service Commission in its lst Indorsement dated April 18, 1975 upon the request of petitioner. This fact is borne out by the records and the evidence and found as such by the Intermediate Appellate Court, the Civil Service Commission as well as the Court of First Instance. From the foregoing, there appears an intention to deprive private respondent of his rights as a permanent appointee. With strained relations and differences in professional opinion between the private respondent and the Pamantasan President, Dr. Esteban was led to believe that his services were terminable at pleasure. The power to appoint is, in essence, discretionary. The appointing power has the right of choice which he may exercise freely according to his judgment, deciding for himself who is best qualified among those who have the necessary qualifications and eligibilities. lt is a prerogative of the appointing power that may be availed of without liability, provided however, that it is exercised in good faith for the advancement of the employer's interest and not for the purpose of defeating or circumventing the rights of the employees under special laws or under valid agreements, and provided further, that such prerogatives are not exercised in a malicious, harsh, oppressive, vindictive or wanton manner, or out of malice or spite (Government Service and Insurance System v. Ayroso 96 SCRA 213). The general rule is that the power of appointment must remain unhampered by judicial intervention. However, when the law is violated or when there is grave abuse of discretion, we have to step in. Otherwise the situation aptly described by newspaperman Jesus Bigornia would exist as he had written: ... With the sword of Damocles hanging over the heads of faculty members, the university has spawned a meek, spineless, even subservient corps of professors and instructors. (Newsman's Notes, Bulletin Today, January 23, 1976). We cannot also sanction the termination of private respondent's services by petitioner. With his appointment now settled as permanent., the Civil Service law and the Constitution guarantee private respondent's security of tenure as 'No officer or employe in the Civil Service shall be suspended or dismissed except for cause as provided by law" (Section 3, Article XII, the 1973 Philippine

Constitution). Petitioner has failed to substantiate its allegations of incompetence against respondent Esteban whose record of government service appears quite impressive. Esteban was not dimissed for cause after proper proceedings. His appointment was terminated on the ground that it was temporary. The intermediate Appellate Court ordered the payment of full back salaries to Dr. Esteban provided he has not reached the age of compulsory retirement from the government service. It is not clear from the records as to when Dr. Esteban actually ceased working for Pamantasan. Under the law, he is entitled to full pay, allowances, and other benefits during the period that he was actually reporting for work and rendering services in whatever capacity, whether teaching, research or administration. As of backwages, the amount is generally based on the equivalent of three years' earnings (Philippine Airlines, Inc. v. National Labor Relations Commission, 126 SCRA 223; Insular Life Assurance Co., Ltd. v. National Labor Relations Commission, 135 SCRA 697). In line with the policy adopted by this Court to do away with the attendant delay in awarding backwages because of the extended hearings necessary to prove the earnings, elsewhere of each and every employee (Philippine Airlines, Inc. v. National Labor Relations Commission, supra, citing Mercury Drug Co., Inc. v. Court of Industrial Relations, 56 SCRA 694), the formula for computing the same calls for fixing the award of backwages to three years. However, in Dy Keh Beng v. International Labor and Marine Union, 90 SCRA 162, citing Mercury Drug Co., et al. v. Court of Industrial Relations, 56 SCRA 694, 712), we held the amount of backwages to be "subject to deduction whre there are mitigating circumstances in favor of the employer, but subject to increase whree there are aggravating circumstances. (Tupas Local Chapter No. 979, et al. v. National Labor Relations Commission, et al., G. R. No. 60532-33, November 5,\1985; Progressive Development Corporation v. Progressive Employees' Union, 80 SCRA 434.) Considering that in the case at bar, more than ten (10) years have elpased from the date respondent Esteban as to the true nature of his appointment and "studiously suppressing" material data to effectively deprive the latter of his rights as a permanent employee, we find an award of five (5) years backpay to respondent Dr. Esteban just and equitable under the circumstances, assuming he has not reached retirement age in the meantime. WHEREFORE, the petition for review on certiorari is hereby DISMISSED for lack of merit. The decision appealed from is affirmed subject to the modification in the payment of back salaries as stated above. SO ORDERED.

G.R. No. L-31947 March 21, 1974 ANTONIO P. TORRES, petitioner, vs. OSCAR T. BORJA, ALEJO SANTOS, in his capacity as Acting Director of Prisons, and the

HONORABLE ABELARDO SUBIDO, in his capacity as Commissioner of Civil Service, respondents. Puno Law Office for petitioner. Office of the Solicitor General Felix Q. Antonio, Assistant Solicitor General Dominador L. Quiroz and Solicitor Rosalio A. de Leon for respondents.

FERNANDO, J.:p There are constitutional overtones in this certiorari proceeding to set aside the appointment of respondent Oscar T. Borja to the position of penal supervisor of the Bureau of Prisons, the other respondents being Alejo Santos, then Acting Director of Prisons, and Abelardo Subido, the then Commissioner of Civil Service, with the then Secretary of Justice, now National Defense Secretary Juan Ponce Enrile, not being proceeded against. In effect, this is a quo warranto suit, petitioner asserting a right to the contested office, alleging that his failure to be thus chosen amounted to a clear and plain disregard to constitutional requirements, both substantive and procedural. As to the former, he would invoke the merit and fitness principle enshrined in the fundamental law. 1 As to the latter, he would rely on due process in administrative proceedings in accordance with the cardinal requirements as set forth by Justice Laurel in Ang Tibay v. Court of Industrial Relations. 2 It is to the credit of petitioner's counsel, now Solicitor, Reynato S. Puno, that he could press such contention with learning and with vigor. At bottom, however, the question is really the acceptance or repudiation of the choice of a successor to a vacant position. As will be apparent, the matter was studied with care by three high-ranking public functionaries, precisely entrusted with such responsibility. It strains credulity to impute to them a failure to abide by what the Constitution commands as to the test of fitness. After all, even considering that academically petitioner had a more creditable background, respondent Borja had in his favor experience and seniority. It borders on the unorthodox, the service records of both aspirants being known, to cavil at the allegation of a lack of fullblown hearing concerning the choice of a successor to a vacancy. The standard of due process is fairness. What is proscribed by it is arbitrariness. 3Reliance on the Constitution, whether substantively or procedurally, was thus in vain. The petition must fail. The facts are not in dispute. As shown in the petition, on July 27, 1968, the position of penal supervisor in the Bureau of Prisons fell vacant. Eight days later, on August 4, 1969, respondent Santos, then its Acting Director, recommended to then Secretary of Justice Ponce Enrile that respondent Borja be the successor. Even before the retirement of the incumbent, however, on April 28, 1969, to be exact, petitioner, then training officer, had already protested the proposed promotion of respondent Borja, with the claim that he was academically better prepared as he had two degrees, Bachelor of Arts and Bachelor of Science and he had five civil service eligibilities. On July 23, 1969, there was a communication of the then Secretary Ponce Enrile to respondent Borja that the objection of petitioner to his proposed promotion as penal supervisor was well taken. 4 There was however, a second indorsement of August 11, 1969 from respondent Santos to Secretary Ponce Enrile worded thus: "It may be stated in this connection the cases of retired Penal Supervisor Gil Ofina who only finished 2nd grade civil service eligibility, and retired Penal Supervisor Jose Gatmaitan who only finished 2nd Year High School with a 1st grade civil service eligibility. Moreover, Mr. Magno Castillo, who is only a High School graduate with a 2nd grade civil service eligibility, proposed for promotion as Penal Supervisor, Iwahig Penal Colony, was allowed by that Office, and approved by the Commissioner of Civil Service not earlier than August 7, 1969." 5 On November 28, 1969, Secretary Ponce Enrile gave "due course to the appointment of Mr. Borja to the position of penal supervisor. 6 Its last sentence reads: "The letter of this Department dated July 23, 1969, is set

aside accordingly." 7 After setting forth that neither petitioner nor respondent Borja were next in rank to the contested position, the Secretary made clear why it is the latter who should be preferred. Thus: "A review of the records of the case reveals that the Civil Service Commission had in the past approved the appointments of the following to positions of Penal Supervisor: 1. Gil Ofina (retired) finished only second year high school and a second grade civil service eligible; 2. Jose Gatmaitan (retired) finished only second year high school and first grade civil service eligible; and, 3. Magno Castillo a high school graduate and second grade civil service eligible. Mr. Borja is a high school graduate and a second grade and prison guard eligible. The Complaints Committee of the Department of Justice took cognizance of his outstanding performance as shown in the report of that Bureau. On the basis of the commendations and citations given him and his performance rating of outstanding, it is believed he is fit to perform the duties and responsibilities of penal supervisor." 8 The appointment of respondent Borja was appealed to the Civil Service Commission. 9 The decision of respondent Subido turning down the appeal of petitioner came on January 29, 1970. Why there should be no reversal of the appointment of respondent Borja was therein explained in these words: "Mr. Torres is a Bachelor of Arts and in addition, he is also a Bachelor of Science in Commerce. He is a Supervisor (First Grade) Chief of Police; General Clerical; Cooperative Officer; and Patrolman (City of Manila) eligible. He has been with the Bureau of Prisons since 1951, and has held various positions such as Driver, Prison Guard, Keeper, Supervising Prison Guard and finally as Security Officer I. He attended and completed the following in-service training courses and seminars: Executive Development and Public Administration; Law Enforcement Officer's Course; Special Security Officer's Course; Correctional Administration and Treatment; Supervision Techniques in Correctional Service; Seminar on Custodial Procedures; Seminar on Performance Rating System; Seminar on "The Role of Law Enforcement Agencies in Crime Prevention and Seminar on the Treatment of Offenders." He was the recipient of a citation of Merit Award for academic excellency and for leadership. His efficiency rating for the relevant period is very satisfactory. On the other hand, Mr. Borja is a high school graduate and a 3rd class Prison Guard and a second grade eligible. He started to work for the government in 1942 as a 3rd Class Guard in the Bureau of Prisons, then he was promoted to the positions of 2nd Class Guard; 1st Class Guard; Junior Inspector; Overseer; and Security Officer which position he holds to the present. He completed in-service training courses on Supervision Techniques on Correctional Service and on Custodial Procedures. His efficiency rating for the same period is outstanding." 10 There was a motion for reconsideration for petitioner dated March 4, 1970. Thereafter on March 20 of that year, it was denied. Again respondent Subido gave the reason of the absence of any justification for a reversal. Thus: "This refers to the petition filed by Mr. Antonio P. Torres for reconsideration of the action taken by this Office in a 4th Indorsement dated January 29, 1970, approving the appointment of Mr. Oscar T. Borja as Penal Supervisor in the New Bilibid Prison, Bureau of Prisons at P4404 per annum effective August 4, 1969, and ruling his protest without merit. After a careful re-study of the record of the case, this Office finds that petitioner has not submitted any new material evidence that would warrant modification of the action taken by this Office. Wherefore, the instant petition is hereby denied. In this connection, attention is invited to Section 14 of the Civil Service Memorandum Circular No. 13, series of 1963 which states in parts: 'Only one petition for reconsideration shall be entertained.' " 11 Hence this petition for certiorari before this Court. The bare recital of the undeniable facts demonstrates wellnigh conclusively why this petition for certiorari, as set forth at the outset, is doomed to fail. In the light of the foregoing, it is apparent that the choice of respondent Borja was not contrary to but in accordance with the principle of merit and fitness. Nor do the circumstances disclose any failure to accord petitioner all the opportunity to be heard on his claim that he was entitled to the promotion sought. 1. The plea that only merit and fitness should be the gauge of promotion the public service finds support, as noted, in both the 1935 Constitution and the present Charter. That such should be the case is self-evident. It is a truism that a public office is a public trust. The test then should be, after being clear what kind of work is to be done, who can do it best. To that over mastering

consideration, all else is subordinate. It cannot be too often stressed that the protection accorded a civil servant, while undoubtedly accruing to his benefit, is intended primarily to assure that with the security of tenure and rational basis for promotion, there is an inducement for individuals of the requisite skill and ability to enter public service. The standard in this specific case then should be who as between the two contenders met such criterion. It was the decision of the three administrative officials entrusted with such responsibility that respondent Borja was entitled to the promotion. It came about with the records of both being carefully scrutinized. The very petition with its annexes is indicative that there was not the slightest favoritism or discrimination shown. Respondent Borja appeared to have both experience and seniority on his side. Moreover, he is possessed of the ability to discharge the task incumbent on a penal supervisor. He had earned the promotion then. What is more, there was no disregard of the constitutional principle of merit and fitness. It may not be inappropriate at this stage to refer to Orencia v. Ponce Enrile. 12 There, after stressing that the essential requirement for a place in the public service is the possession of the requisite ability and competence, we upheld the right to the disputed position of assistant chief of the clerks of court division of respondent Guillermina M. Gener, a member of the bar, rather than petitioner whose educational attainment was merely that of a high school graduate. It is quite obvious there is no analogy. In that decision the disparity is rather plain, the position being one in which the possession of a legal background would certainly prove more than salutary. It is not so in the case before us where the contest is over who should be penal supervisor. Whatever advantage may inhere in petitioner having finished college work, with respondent Borja merely completing his high school, is more than offset by the latter's seniority of more than nine years and the experience that was his as a junior inspector, overseer and security officer. To repeat, no infringement of the constitutional requirement as to merit and fitness is discernible. The petition must fail. 2. The invocation of procedural due process by petitioner is equally unavailing. This is not to say that under all circumstances, the insistence on the right to be heard should be rejected outright. It is to be remembered that both under the 1935 Constitution and the present Charter, an officer or employee in the Civil Service is not to be suspended or removed except for cause as provided by law. 13 It follows that for a provision of this character to be truly meaningful, and security of tenure to be really significant, the expected promotion of an employee is not excepted from the operation of the due process guarantee. There is to be no unfairness or arbitrariness. The right to be heard should not be ruled out. Audi alteram partem. The acceptance of this doctrine does not however aid petitioner. For if there is anything that is clear from the undisputed facts, it is that he was accorded full hearing. His very petition makes that clear. Included therein were his six-page protest registered as far back as April 28, 1969 to the proposed appointment of respondent Borja; 14 his seventeen-page appeal to respondent Subido after the appointment made by the then Secretary Ponce Enrile of respondent Borja, dated January 6, 1970 with annexes of its own requiring twelve pages; 15 his ten-page reply to answer dated February 23, 1970 reiterating his claim that he should be given the contested position; 16 and lastly, his fourteen-page motion for reconsideration addressed to respondent Subido dated March 4, 1970. 17 Parenthetically, it may be observed that in all such communications, petitioner was understandably far from being unduly modest, stressing the virtues possessed by him. Moreover, again understandably, he was more than just deprecatory as to the fitness of respondent Borja. It would be an affront to reason therefore to hold that under such circumstances, petitioner was not given the hearing prior to the rejection of his claim to the position so fervently sought by him. 3. The constitutional objection thus being shown to be lacking in merit, the question really boils down as to whether, considering the facts on record, this Court should set aside the decision reached after due care and circumspection by the three high-ranking executive officials that respondent Borja rather than petitioner Torres should be the appropriate choice for the position of penal supervisor. The answer is supplied by Reyes v. Abeleda. 18 There is this relevant excerpt from that decision: "It would seem fairly obvious then that the law does not impose a rigid or mechanistic formula on the appointing power, compliance with which is inexorable and a deviation therefrom fatal. Far from it. If there be adherence to the concept that public office is a public trust, as there ought to be, the

criterion should be what public welfare demands, what satisfies public interest. For it is axiomatic that public needs could best be attended to by officials about whose competency and ability there is no question. To that over mastering requirement, personal ambition must of necessity yield. Discretion if not plenary, at least sufficient, should thus be granted to those entrusted with the responsibility of administering the offices concerned, primarily the department heads. They are in the most favorable position to determine who can best fulfill the functions of the office thus vacated. Unless, therefore, the law speaks in the most mandatory and peremptory tone, considering all the circumstances, there should be, as there has been, full recognition of the wide scope of such discretionary authority. Happily, there is nothing in the Civil Service Act, which is fittingly concerned with protecting the rights of those in the career service, that, rightly construed, calls for a different conclusion. It is well worth repeating that the broad authority of a department head appears indisputable. Such is the policy of the law, a policy reflected with fidelity in the decisions of this Court." 19 Such an approach has substantially been followed. 20 WHEREFORE, the petition for certiorari is denied. No costs.