VIII.

OTHER IMPORTANT POWERS OF MUNICIPAL CORPORATIONS

A.

To appropriate and spend money

i.
Nature
ii.
Limitation
1. Republic v. Montano, 21 SCRA 609

EN BANC
[G.R. No. L-28055. October 30, 1967.]
REPUBLIC OF THE PHILIPPINES, petitioner, vs. PROVINCIAL
GOVERNOR DELFIN MONTANO, ET AL., respondents.
The Solicitor General A.P. Barredo and Solicitor R.L. Pronove, Jr. for petitioner.
Abraham F. Sarmiento for respondents.
SYLLABUS
1. PROVINCES;
PROVINCIAL
GOVERNMENTS,
POWERS
OF;
APPROPRIATION OF PUBLIC FUNDS FOR PUBLIC WELFARE; ITS HISTORY.
The power of provincial governments to appropriate money for the welfare of
their inhabitants is not at all of recent vintage. As early as 1906, this was granted
to provincial boards by Act 1548 which amended section 13 of the Organic Act of
the Provinces by providing that the provincial boards of provinces shall have the
power "(nn). To appropriate moneys from [their] funds, except those the use of
which is otherwise specifically fixed by law, for other purposes having in view the
general welfare of the province and its inhabitants." Similarly, the Administrative
Code of 1916, reenacting with modification this provision of the Organic Act of the
Provinces, provided that "Upon approval of the Department Head of the particular
resolution by which such action shall be taken, the provincial boards of the
respective provinces shall have authority (a) To appropriate money for purposes
not specified by law, having in view the general welfare of the province and its
inhabitants ..." This provision was in turn reenacted in section 2106(a) of the

Revised Administrative Code. In truth, section 3(a) of the Local Autonomy Act is
nothing but a copy of section 2106(a) of the Revised Administrative Code, with
the only difference that prior approval of the Department Head has been
dispensed with, in line with the legislative policy of granting greater autonomy to
local governments. In a sense, the elimination of the requisite approval is a return
to the original provision of the old Organic Act of the Provinces. It is in this sense
that section 3 of the Local Autonomy Act is entitled "Additional powers of
provincial boards ...," and rightly so, for it removed the fetters that once bound
local governments to the national government.
2. ID.; ID.; CONSTITUTIONAL PROVISIONS ON LOCAL GOVERNMENT
SHOULD BE LIBERALLY CONSTRUED IN THEIR FAVOR. The provisions of
this Constitution and of any law concerning municipal corporations formed for
local government, or concerning counties, shall be liberally construed in their
favor. The powers of counties and such municipal corporations shall include not
only those granted in express terms but also those of necessary or fair
implication, or incident to the powers expressly conferred, or essential thereto,
and not inconsistent with or prohibited by this Constitution or by law.
3. ID.; ID.; ID.; NECESSARY AND FAIR IMPLICATION OR INCIDENT TO
POWERS CONFERRED OR ESSENTIAL THERETO. It is argued that this
clause of the Constitution, which had no counterpart in its predecessor
Constitution, introduced a new concept of home rule, being in effect a direct grant
of the police power to all municipalities. We find no merit in this contention of the
defendant. The quoted provision of the Constitution on its face does not purport
to be a grant of general police powers to al municipalities, its plain language is
not susceptible of being so construed, the proceedings of the Constitutional
Convention referred to do not indicate that it was so intended, and during the five
years since its adoption our courts have never so interpreted it. On the contrary, it
is well settled in this state that a municipality has only those powers granted to it
by statute, albeit by virtue of the constitutional provision here under discussion
those powers are to be liberally construed in favor of the municipality and express
grants of power are deemed to include `those of necessary or fair implication, or
incident to the powers expressly conferred, or essential thereto.'

4. ID.; ID.; LOCAL GOVERNMENTS HAVE NO INHERENT BUT ENUMERATED

POWERS. Provincial governments, like municipal corporations, are
governments of enumerated powers. The assumption, although historically
inaccurate, is that municipal corporations are mere creatures of the state with no
inherent powers of their own. This same assumption underlies the grant of
autonomy to local governments, for implicit in the grant is precisely the
recognition that they exercise only delegated powers which should be enlarged
and, in case of fair and reasonable doubt," should be resolved in their favor.
5. STATUTORY CONSTRUCTION; LOCAL AUTONOMY ACT; GRANT OF
POWERS TO LOCAL GOVERNMENTS SHOULD BE CONSTRUED STRICTLY
AGAINST THEM. Section 12(1) (2) of the Local Autonomy Act, which is
reproduced in section 23 of the Decentralization Act of 1967, did not alter the
basic nature of municipal governments as governments of limited power. What it
changed was the prevailing rule at the time of its enactment that the grant of
powers to municipal corporations must be strictly construed against them. As a
rule of interpretation it does not purport to supply power where none exists, not
even by necessary implication.
6. PROVINCES; PROVINCIAL GOVERNMENTS, POWERS OF; POWER TO
CREATE PROVINCIAL POLICE FORCE NOT CONFERRED BY LAW. The
power to create a provincial police force appears to be denied to provincial
governments. Thus, whereas section 2105 (c) of the Revised Administrative
Code gives them the power to appropriate money "for the organization,
equipment and maintenance of a police force in any municipality or municipal
district of the province where local funds are insufficient ..bear such expenses,"
nothing is said of their power to provide for the organization of their own police.
Again, while cities and municipalities are authorized to provide uniforms for their
police forces no such authority is conferred on provinces. This power given to
cities and municipalities is in addition to their power "to appropriate money for
purposes not specified by law, having in view the general welfare of the city and
its inhabitants," undoubtedly because the former cannot be fairly embraced in the
latter. Section 2081 cannot be invoked because that provision authorizes the
appointment of subordinate employees in existing offices, not the creation of the
offices themselves.

7. PUBLIC OFFICE; NATIONAL AND MUNICIPAL POLICE FORCES ARE

STATUTORY CREATURES; PROVINCIAL POLICE FORCE INEXISTENT.
Municipal offices can be created only by legislative authority. This creative act
must be either immediate or delegated. In the Philippines, national and local
police bodies are directly created by statute. Thus the Philippine Constabulary
was constituted as a national police force by virtue of a statute. So is the
organization of police force in cities and municipalities specifically provided for by
an Act of Congress. Even the formation of posses comitatus in towns to assist
the police in the apprehension of criminals is a matter of express statutory
enactment. Thus there is a national police force and there are city and municipal
forces, but the remarkable thing is that there is no provision for provincial police
forces.
8. PROVINCES; PROVINCIAL POLICE FORCES, CREATION OF; STATUTORY
BASIS; REASONS. This lack of statutory basis for the creation of provincial
police forces stands in sharp contrast to the proliferation of statutory materials on
municipal and city police forces. Not that peace and order are less a
responsibility of the provinces. The reason is simply that the Governors are
already clothed with ample powers and resources. They can temporarily transfer
policemen from one municipality to another when public interest so requires.
They can call on the Philippine Constabulary or even on the Armed Forces of the
Philippines to quell any "disorder, riot, lawless violence or rebellious or seditious
conspiracy or to apprehend violators of law."
9. ID.; ID.; ID.; CREATION OF PROVINCIAL POLICE FORCES RESERVED TO
LEGISLATURE
AND
EXCLUDED
FROM
ACTIONS
BY
LOCAL
GOVERNMENTS. The legislature intended to reserve for itself the field of
legislation on this matter and thereby exclude from it like actions by local
governments. Precedents in support of this view are not wanting. It was held that
where the charter authorizes the appointment of a marshal and in case of
"special emergencies," of a special police, the city could not create an office of a
night watchman with powers to arrest persons violating the laws and ordinances.
Not even the plea that the office was necessary for the preservation of peace and
order justified the creation of the office. Similarly, it was held that a statute
creating the office of the "Chief of Police" did not authorize a city to appoint a day

chief of police and a night chief of police and that an ordinance so providing was
invalid.
10. ID.; PROVINCIAL GOVERNMENT, POWERS OF; CREATION OF
PROVINCIAL POLICE FORCES CANNOT BE INFERRED. The power of
provinces to create provincial police forces cannot be inferred. Neither can the
existence of such bodies be implied from the fact that in prescribing the
qualifications of members of local police agencies, section 9 of the Police Act of
1966 mentions "provincial police agencies" and the like. The reference to such
bodies is a misnomer as is evident from the discussion on the bill which became
the Police Act.
11. ID.; ID.; PROVINCIAL POLICE FORCE REFERS TO PROVINCIAL
GUARDS. The term is used in other legislation before the enactment of the
Police Act of 1966 and it has always been understood to refer to provincial
guards assigned to provincial jails. It is used in Commonwealth Act 343 which
constituted the Philippine Constabulary as a national police force and returned to
the control of the Governors the "provincial ... police bodies or provincial guards
who earlier, had been organized into a state police, along with the police forces of
the cities and municipalities President Quezon's Executive Order 153 as well as
Executive order 175, issued to implement C.A. 343, likewise spoke of "local
police bodies in each province" and "provincial police service" but that the term
meant no more than provincial guards is evident from the text thereof.

12. MUNICIPAL
CORPORATIONS;
PROVINCIAL
GOVERNMENT;
RESOLUTION NO. 27 DATED JANUARY 27, 1964 OF THE PROVINCIAL
BOARD OF CAVITE, AND ADMINISTRATIVE ORDER No. 65-1 CREATING THE
DEPARTMENT OF PUBLIC SAFETY; LEGALITY. As the provincial
government has no power by necessary implication from certain express powers
granted to it to create provincial police offices, Resolution No. 27 of the Provincial
Board of Cavite and Administrative Order No. 65-1 of the Provincial Governor
thereof, creating the Department of Public Safety "to be manned by trained
technicians and investigators who shall be agents of a person in authority" are
declared void, the Cavite Department of Public Safety is ordered dissolved, and
the respondent public safety officers are ousted from their positions.

DECISION
CASTRO, J :
p

The parties are agreed that the Cavite Department of Public Safety possesses
the nature, attributes, powers and functions of a police force. The issue here is
whether a provincial government has the power, by necessary implication from
certain express powers granted to it, to create a provincial police force, the
parties admitting that there is no express or explicit statutory grant of power.
Neither the need for such a body nor the wisdom of its creation is in question.
The issue is simply one of implied power.
In 1964 the provincial board of Cavite passed Resolution 27 creating a
Department of Public Safety "to be manned by trained technicians and
investigators who shall be agents of a person in authority (the Provincial
Governor)" and authorizing the appropriation of funds for its operation. The
resolution did not define the powers and functions of the department. This was
done by means of an administrative order of the respondent Governor which is
hereunder quoted in full:
"PROVINCIAL ADMINISTRATIVE ORDER 65-1
"DEFINING THE GENERAL PURPOSES, POWERS AND FUNCTIONS OF THE
CAVITE DEPARTMENT OF PUBLIC SAFETY
"To insure the effective implementation of the Provincial Board Resolution No 27,
series of 1964, creating the Cavite Department of Public Safety as the main lawenforcement arm of the province, this Administrative Order is hereby
promulgated.
"SECTION 1. The Agency. The agency shall be officially known as the CAVITE
DEPARTMENT OF PUBLIC SAFETY (CDPS) or, in Pilipino, KAGAWARAN NG
KALIGTASAN BAYAN; and its members, who are agents of the Provincial
Governor to be known as Public Safety Officers.
"SEC 2. General Purposes and Functions. To better insure the safety of
residents of Cavite and the well-being of both public and private interests therein,

the Cavite Department of Public Safety is established with the following purposes
and functions:
"a. Technical Assistance to Local Police Units. The CDPS shall make readily
available to the different local police forces technical assistance availing of
modern and scientific methods of crime detection.
"b. Elevation of Standard of Police Performance. It shall aspire to elevate the
standard of police performance, not only by the quality of the services it would
render, but also by assisting in the implementation of a police training program for
local police forces.
"c. Focus on Crimes against Persons and Property. In order to make the
operation of the Agency more effective, considering that the main problem in the
maintenance of peace and order involves the security of persons and property, its
law-enforcement activities shall more or less be confined to the investigation and
assistance in the prosecution of crimes against persons and property and
violation of traffic laws.
"d. Central Record System. The CDPS shall establish and maintain a central
provincial record of personal and criminal identification and court and police
documents. It shall also make available to municipalities that have enacted
ordinances requiring the finger-printing and/or photographing of all able-bodied
citizens the personnel, materials and equipment needed for said purpose.
"e. Civil Defense. The CDPS shall also constitute the main civil defense arm in
the province, responsible to the Governor, and shall undertake such measures as
would be required in emergencies in coordination with the National Civil Defense
Administration.
"f. Loose Firearms. The CDPS shall also give emphasis on the detection and
collection of loose firearms and the collection and control of `misused' weapons,
the root causes of most peace and order problems.
"g. Fire Protection. The CDPS shall be responsible for the coordinated utilization
and maintenance of all fire-fighting equipment within this jurisdiction.
"h. Search and Rescue. In times of disaster and distress the CDPS shall conduct
search and rescue operations.

"i. Civil Action Projects. The Public Safety Officers, whenever circumstances
would allow, shall also undertake such civil action projects as the Provincial
Governor may assign.
"j. Public Safety and Preventive Measures. The CDPS shall also undertake from
time to time other public safety measures assigned to it by the Provincial
Governor, including accident prevention, elimination of fire and traffic hazards,
mob control, and the enforcement of safety measures requirements in resorts,
recreation areas and other public places.
"SEC. 3. Organizational Setup, Central Office and Sector Stations. The
organizational setup of the CDPS shall be made in a manner that would make its
services readily available and accessible to the local police forces and residents
of the province.
"It shall maintain its central office in Trece Martires City and establish at least
three (3) sector stations in strategically located places in the province.
"SEC. 4. Scope of Activities and Relations with Other Law-Enforcement
Agencies. The CDPS has been created, not for the purpose of usurping the
functions of local law-enforcement agencies, but to assist and to make available
to city and municipal police units its facilities and the benefit of the intensive
training of its members in police science and, if possible, to `contaminate' other
peace officers with their technical know-how.
"THE CDPS shall also establish liaison with the NBI and the PC in order to
achieve their common goal of combating crime effectively.
"Public Safety Officers may only involve themselves in a case already being
handled by other police agencies (a) upon request of the mayor or chief of police
concerned; (b) when the culprit flees outside the boundary of the municipality
where the crime was committed; or (c) upon direction of the Provincial Governor.
"Done in the City of Trece Martires, this 1st day of March, in the year of our Lord,
Nineteen hundred and sixty-five."
The organizational structure of the department was not outlined or delineated,
obviously because this was already done in the budget of the province for 19631964.

Thereafter the respondent Governor appointed the other respondents as public

safety officers, making them his special agents.
On September 20, 1967 the Solicitor General, in behalf of the Government, filed
a petition for quo warranto, assailing the legality of the Department of Public
Safety on the ground that the province of Cavite has no authority to create public
offices with police functions. It is alleged that despite the demand of the President
of the Philippines the respondent Governor and the members of the provincial
board of Cavite have refused to dissolve and disband the public safety
department, and that the exercise of police functions by the agency "affects the
lives and liberties" of the people.
On September 25, 1967 this Court issued a temporary restraining order enjoining
the respondent Governor from carrying out the disputed resolution and the rest of
the respondents from discharging the functions of public safety officers.
In their answer, the respondents maintain that the power of the province to create
the agency is necessarily implied from section 3 of the Local Autonomy Act of
1959 1 especially the portion thereof which provides that "Provincial Boards of the
respective provinces shall have authority (a) To appropriate money for purposes
not specified by law, having in view the general welfare of the province and the
inhabitants." In support of the existence of such implied power, they invoke
section 12 of the same Act which reads as follows:
"Rules for the interpretation of the Local Autonomy Act.
"1. Implied power of a province, a city or municipality shall be liberally
construed in its favor. Any fair and reasonable doubt as to the existence
of the power should be interpreted in favor of the local government and it
shall be presumed to exist.
"2. The general welfare clause shall be liberally interpreted in case of
doubt so as to give more power to local governments in promoting the
economic condition, social welfare and material progress of the people in
the community."

They further contend that the power to create the police agency is recognized in
the following provisions of the Police Act of 1966. 2

"SEC. 9. General Qualifications for Appointment. No person shall be

appointed to a local police agency unless he possesses the following
qualifications:
"xxx xxx xxx
"(4) For appointment in the municipalities he must have at least
completed high school, and for provinces and cities, at least completed
two years college;
"xxx xxx xxx
"(8) He must be at least five feet, five inches in height in the case
of provinces and chartered cities and five feet four inches in the case of
municipalities; and
"xxx xxx xxx
"Persons who at the time of the approval of this Act have rendered at
least five years of satisfactory service in a provincial, city or municipal
police agency although they have not qualified in an appropriate civil
service examination are considered as civil service eligible for the
purpose of this Act."

The power of provincial governments to appropriate money for the welfare of their
inhabitants is not at all of recent vintage. As early as 1906, this was granted to
provincial boards by Act 1548 3 which amended section 13 of the Organic Act of
the Provinces 4 by providing that the provincial boards of provinces shall have the
power "(nn) . . . To appropriate moneys from [their] funds, except those the use of
which is otherwise specifically fixed by law, for other purposes having in view the
general welfare of the province and its inhabitants." Similarly, the Administrative
Code of 1916, reenacting with modification this provision of the Organic Act of the
Provinces, provided that "Upon approval of the Department Head of the particular
resolution by which such action shall be taken, the provincial boards of the
respective provinces shall have authority (a) To appropriate money for purposes
not specified by law, having in view the general welfare of the province and its
inhabitants. . . ." 5 This provision was in turn reenacted in section 2106(a) of the
Revised Administrative Code. 6 In truth, section 3(a) of the Local Autonomy Act is
nothing but a copy of section 2106(a) of the Revised Administrative Code, with
the only difference that prior approval of the Department Head has been

dispensed with, in line with the legislative policy of granting greater autonomy to
local governments. In a sense, the elimination of the requisite approval is a return
to the original provision of the old Organic Act of the Provinces. 7 It is in this
sense that section 3 of the Local Autonomy Act is entitled "Additional powers of
provincial boards ..." and rightly so, for it removed the fetters that once bound
local governments to the national government.

Not once, since 1906, has the power to create public offices been asserted. But
this power is now urged as a necessary corollary of the power to appropriate, this
because section 12(1) (2) of the Local Autonomy Act commands that the implied
powers of municipal corporations shall be liberally construed and that all doubts
as to the existence of the power must be resolved in their favor.
We cannot accept this view.
The case of Fred vs. Mayor and Council of Borough of Old Tappan 8 indicates the
proper construction that should be placed on a provision like section 12(1) (2).
There a similar provision of the New Jersey Constitution of 1947 was invoked to
justify the validity of a municipal ordinance regulating the removal of soil. The
Constitutional provision states:
"The provisions of this Constitution and of any law concerning municipal
corporations formed for local government, or concerning counties, shall
be liberally construed in their favor. The powers of counties and such
municipal corporations shall include not only those granted in express
terms but also those of necessary or fair implication, or incident to the
powers expressly conferred, or essential thereto, and not inconsistent
with or prohibited by this Constitution or by law."

It was argued that this clause of the Constitution, which had no counterpart in
its predecessor constitution, introduced a new concept of home rule, being in
effect a direct grant of the police power to all municipalities. This contention
was rejected (although the ordinance was upheld on other grounds) the
Supreme Court of New Jersey stating:
"We find no merit in this contention of the defendant. The quoted
provision of the Constitution on its face does not purport to be a grant of

general police powers to ail municipalities, its plain language is not

susceptible of being so construed, the proceedings of the Constitutional
Convention referred to do not indicate that it was so intended, and during
the five years since its adoption our courts have never so interpreted it.
On the contrary, it is well settled in this State that a municipality has only
those powers granted to it by statute, albeit by virtue of the constitutional
provision here under discussion those powers are to be liberally
construed in favor of the municipality and express grants of power are
deemed to include `those' of necessary or fair implication, or incident to
the powers expressly conferred, or essential thereto. . . ." 9

It bears strong emphasis to state here that provincial governments, like other
municipal corporations, are governments of enumerated powers. 10 The
assumption, although historically inaccurate, 11 is that municipal corporations are
mere creatures of the state with no inherent powers of their own. 12 This same
assumption underlies the grant of autonomy to local governments, 13 for implicit
in the grant is precisely the recognition that they exercise only delegated powers
which should be enlarged and, in case of "fair and reasonable doubt", should be
resolved in their favor.
Section 12 (1) (2) of the Local Autonomy Act, which is reproduced in Section 23
of the Decentralization Act of 1967, did not alter the basic nature of municipal
governments as governments of limited power. What it changed was the
prevailing rule at the time of its enactment that the grant of powers to municipal
corporations must be strictly construed against them. 14 As a rule of interpretation
it does not purport to supply power where none exists, not even by necessary
implication.
Here the power to create a provincial police force appears to be denied to
provincial governments. 15 Thus, whereas section 2105(c) of the Revised
Administrative Code gives them the power to appropriate money "for the
organization, equipment and maintenance of a police force in any municipality or
municipal district of the province where local funds are insufficient to bear such
expenses," nothing is said of their power to provide for the organization of their
own police. Again, while cities 16 and municipalities 17 are authorized to provide
uniforms for their police forces no such authority is conferred on provinces. This
power given to cities and municipalities is in addition to their power "to

appropriate money for purposes not specified by law, having in view the general
welfare of the city and its inhabitants," 18 undoubtedly because the former cannot
be fairly embraced in the latter. Section 2081 cannot be invoked because that
provision authorizes the appointment of subordinate employees in existing
offices, not the creation of the offices themselves.
Indeed, municipal offices can be created only by legislative authority. This
creative act must be either immediate or delegated. 19 In the Philippines, national
and local police bodies are directly created by statute. Thus the Philippine
Constabulary was constituted as a national police force by virtue of a
statute. 20 So is the organization of police forces in cities and municipalities
specifically provided for by an Act of Congress. 21 Even the formation of posses
comitatus in towns to assist the police in the apprehension of criminals is a matter
of express statutory enactment. 22 Thus there is a national police force and there
are city and municipal police forces, but the remarkable thing is that there is no
provision for provincial police forces.
This lack of statutory basis for the creation of provincial police forces stands in
sharp contrast to the proliferation of statutory materials on municipal and city
police forces. Not that peace and order are less a responsibility of the provinces.
The reason is simply that the Governors are already clothed with ample powers
and resources. They can temporarily transfer policemen from one municipality to
another when public interests so requires. 23 They can call on the Philippine
Constabulary or even on the Armed Forces of the Philippines to quell any
"disorder, riot, lawless violence or rebellious or seditious conspiracy or to
apprehend violators of law. 24
It seems quite clear indeed that the legislature intended to reserve for itself the
field of legislation on this matter and thereby exclude from it like actions by local
governments. Precedents in support of this view are not wanting. In Fluker vs.
City of Union Point 25 it was held that where the charter authorizes the
appointment of a marshal and, in case of "special emergencies," of a special
police, the city could not create an office of a night watchman with powers to
arrest persons violating the laws and ordinances. Not even the plea that the office
was necessary for the preservation of peace and order justified the creation of
the office. Similarly, in Stout vs. Stinnett 26 it was held that a statute creating the

office of "the Chief of Police" did not authorize a city to appoint a day chief of
police and a night chief of police and that an ordinance so providing was invalid.
The power of provinces to create provincial police forces cannot be inferred.
Neither can the existence of such bodies be implied from the fact that in
prescribing the qualifications of members of local police agencies, section 9 of
the Police Act of 1966 mentions "provincial police agencies" and the like. The
reference to such bodies is a misnomer as is evident from the following
discussion 27 on the bill which became the Police Act:
"MR. PEREZ (L.) This bill carries phrases like `police agencies of a
province or chartered city or municipality.' Under the present set-up,
what would you consider as constituting the police agencies of a
province?
"MR. AMANTE That is a misnomer here. The original bill includes the
organization of the provincial guards; hence it is suggested here that
they be included in this bill. Even at the conference called by the
President in connection with the peace and order condition, he
suggested that the provincial guards be included under the supervision
of the Commission.
"MR. PEREZ (L.) I support such proposal. This bill should state the
number of provincial guards which each province, in accordance with its
class, can employ; and also provide additional powers, because today
such provincial guards only keep the security of the provincial jail.
"MR. AMANTE They guard prisoners.
"MR. PEREZ (L.) Will these guards enjoy the police powers of other
police agencies contemplated under this bill?
"MR. AMANTE No, they are only guards. However, their qualifications
and their discipline shall be governed by this bill. In connection with the
inclusion of provincial guards in the proposed measure, the Committee
will welcome amendments.
"MR. PEREZ (L.) I will propose some amendments to that effect.
"MR. AMANTE Thank you.

In fact, the term is used in other legislation before the enactment of the Police Act
of 1966 and it has always been understood to refer to provincial guards assigned
to provincial jails. It is used in Commonwealth Act 343 which constituted the
Philippine Constabulary as a national police force 28 and returned to the control of
the Governors the "provincial ... police bodies or provincial guards" 29 who earlier,
had been organized into a State Police, along with the police forces of the cities
and municipalities. 30 President Quezon's Executive Order 153 31 as well as
Executive Order 175, 32 issued to implement Commonwealth Act 343, likewise
spoke of "local police bodies in each province" and "provincial police service" but
that the term meant no more than provincial guards is evident from the text
thereof.
Like the power to appropriate money for the general welfare, the reference in
statutes to provincial police agencies is nothing new.
Apart from this, since a municipal office can be created only by legislative
authority exercised either directly or through a grant of the power to municipal
corporation, the existence of such an office as a fact cannot be inferred. This is
the thrust of the rulings in City of Metropolis vs. Industrial Commission 33 and
in Murphy vs. Industrial Commission. 34 In the first case, the Cities and Villages
Act provided that offices must be created by ordinance. It was argued that certain
provisions of the Municipal Code of the City of Metropolis prescribed the powers
and duties of policemen and hence that the office of night policeman "necessarily
exists in that city." In disposing of this contention, the Illinois Supreme Court held
that "neither provision of that character nor an appropriation of public money to
pay the salary or compensation of a person acting as a policeman can operate,
standing alone, to create the particular office."

In the second case, an ordinance, enacted under the same Cities and Villages
Act, provided that "The mayor shall, with the advice and consent of the city
council, appoint for the term of one year, and until their respective successors in
office are appointed and qualified, additional police officers in such number as
said mayor and city council may deem expedient, to assist the chief of police in
his official duty." In denying that an office was thereby created, the same court
said: "That section does not purport to create the office of policeman or assistant

chief of police. The provision that the mayor shall appoint additional police
officers cannot be construed as an ordinance to create the office of policeman."
Upon all the foregoing, it follows ineluctably that the creation of the Cavite
Department of Public Safety is an unlawful exercise of power, and is without
basis in law.
Accordingly, Resolution 27, dated January 27, 1964, of the Provincial Board of
Cavite and Administrative Order 65-1 of the respondent Governor dated March 1,
1965 are declared void, the Cavite Department of Public Safety is ordered
dissolved, and the respondent public safety officers are ousted from their
position. No pronouncement as to costs.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Bengzon, J.P., Zaldivar,
Sanchez, Angeles, and Fernando, JJ., concur.
(Republic v. Montano, G.R. No. L-28055, [October 30, 1967], 128 PHIL 652669)
|||

1. Discanso v. Gatmaytan, 109 Phil 916

EN BANC
[G.R. No. L-12226. October 31, 1960.]
DAMASO DISCANSO and FLORENCIO VALIENTE, petitionersappellees, vs. FELICISIMO GATMAYTAN, Municipal Treasurer,
Guimba, Nueva Ecija, respondent-appellant.
Mariano D. Capuyoc for appellant.
Inocencio B. Garampil for appellees.
SYLLABUS
1. OFFICERS;
POLICEMEN
ILLEGALLY
REMOVED;
REINSTATEMENT WITH BACK SALARIES; PARTIES; INCLUSION OF

MUNICIPALITY AS PARTY MERE FORMALITY. In several cases which

involved the action of mandamus filed by detectives unlawfully ousted from
their positions, this Court, without touching on the question of the City's
liability for the Mayor's act in illegally dismissing the detectives, directed the
payment of their back salaries, although the city had not been made a party
therein (Mission vs. Del Rosario, 94 Phil., 483; 50 Off. Gaz., 1571;
Abella vs. Rodriguez, 95 Phil., 289; 50 Off. Gaz., 3090; Uy vs. Rodriguez, 95
Phil., 493; 50 Off. Gaz., 3574; Briones vs. Osmea, 104 Phil., 588;
Covacha vs. Amante, L-8358, May 25, 1956; and Meneses vs. Lacson, 97
Phil., 857; and in Mangubat vs. Osmea, L-12837, April 30, 1959, where the
defense was that the City was not made a party to the proceedings, this Court
likewise ruled that the ends of justice and equity would be served best if the
inclusion of the City as one of the respondents therein, were considered a
mere formality.
2. ID.; SALARIES; NO BUDGET OF APPROPRIATION ORDINANCE;
MANDAMUS DOES NOT LIE. Only specific legal rights may be enforced
by mandamus (Viuda e Hijos de Crispulo Zamora vs. Wright, 53 Phil., 613).
There being no budget or appropriation ordinance setting aside the funds to
cover the salaries of the herein appellees, it is not the legal duty of the
respondent-appellant treasurer to honor the vouchers in question.
Consequently, mandamus will not lie.
DECISION
PAREDES, J :
p

Petitioners-appellees Damaso Discanso and Florencio Valiente, were

policemen of the municipality of Guimba, Nueva Ecija, who were removed
from office, in 1952, by the then Acting Mayor Dr. Virgilio V. Calica. Appellees
instituted Mandamus proceedings (Special Civil Action No. 1265) against the
acting mayor Arsenio N. Padre. The lower court rendered judgment, declaring
the removal of petitioners illegal and ordered their reinstatement and the
payment of their back salaries.

By virtue of the decision, the municipal council of Guimba approved resolutions

Nos. 135, Exh. A, dated December 3, 1955; 156, dated June 30, 1956, Exh. B;
and 162, dated July 7, 1956, Exh. C; whereby it assumed the responsibility and
resolved to appropriate the amount of P5,173.16 for the payment of the back
salaries of appellees, and authorizing the amount to be carried as an outstanding
obligation of the municipality, in the annual budget for the fiscal year 1956- 1957.
Pursuant to said resolutions, the then incumbent Mayor, Dr. V. Calica, approved
vouchers of the petitioners (Exhibits D and E), covering their salaries as
policemen for the municipality of Guimba, from July 27, 1952 to October 22,
1955, at P65.00 per month, in the total amount of P2,528.71, each. When the
vouchers were presented to the municipal treasurer, Felicisimo Gatmaytan, now
respondent, he refused to pay, claiming that there were no funds for said
vouchers. The trial Court cited the treasurer to appear before it, in order that he
might be examined regarding the finances of the municipality, and it was found
that the amount of P10,000.00 was available for said purpose. The petitioners in
said case then presented a motion for the execution of the judgment, which was
denied on the ground that public funds are exempt from attachment.
On October 13, 1956, long after the municipal council of Guimba had approved
the three (3) resolutions, the same council (now with different composition),
passed resolution No. 206, disallowing the inclusion of the amount in the budget
of the municipality. The refusal of the municipal treasurer to pay the vouchers,
caused the filing of the present petition for Mandamus, directed against said
municipal treasurer to compel him to pay their back salaries.
During the trial, the parties presented only documentary evidence. The lower
court rendered judgment, the pertinent portions of which recite:
"The petitioners have no other remedy in the ordinary course of
law. A writ of execution issued in Civil Case No. 1265 had been returned
unsatisfied. And since the defendant municipal treasurer has repeatedly
and obstinently refused to pay the salaries of the petitioners, there is no
other remedy except the writ of mandamus. To deny the petition would
render the decision in Civil Case No. 1265 illusory and nugatory.

Wherefore, let a writ of mandamus issue ordering the Municipal

Treasurer of Guimba to pay the back salaries of the petitioners herein in
the amount stated and approved in their vouchers Exhibits D and E. . . ."

This is an appeal from the above judgment, respondent-appellant alleging that it

was error for the lower court (1) to hold that a judgment against the mayor is
deemed a judgment against the municipality; and (2) to order him (appellant) to
pay the back salaries of the appellees, although the same are not provided in a
budget approved by the municipal council.
Anent the first proposition, in several cases which involved the action for
mandamus filed by detectives unlawfully ousted from their positions, this Court,
without touching on the question of the City's liability for the Mayor's act in
illegally dismissing the detectives, directed the payment of their back salaries,
although the city had not been made a party therein (Mission vs. Del Rosario, 94
Phil., 483; 50 Off. Gaz., 1571; Abella vs. Rodriguez, 95 Phil., 289; 50 Off. Gaz.,
3090; Uyvs. Rodriguez, 95 Phil., 493; 50 Off. Gaz., 3574; Briones vs. Osmea,
104 Phil., 588; 55 Off. Gaz., (11) 1920; Covacha vs. Amante, G. R. No. L-8358,
May 25, 1956, and Meneses vs. Lacson, 97 Phil., 857.) In the case of
Mangubat vs. Osmea, G. R. No. L-12837, April 30, 1959, where the defense
was that the City was not made a party to the proceedings, this Court made the
following observations:
"There is no reason to believe that these officers and the City
Mayor would have exerted greater effort, than those already displayed by
them, in protecting the interests of the City of Cebu, were it formally a
respondent herein. Indeed, it is only logical to expect that having been
individually named as respondents, said officers, must have taken as
much concern if not more, in warding off petitioner's claim. Under the
foregoing circumstances, we would be subordinating the substance to
the form if the action for mandamus insofar as the claim for back
salaries is concerned were, either dismissed, or remanded to the
lower court, for the corresponding amendment of the pleading and a
repetition of the proceedings held for the last five (5) years, in order to
reach the same decision rendered by the lower court and the same
conclusions set forth in this decision, as regards the substantive rights of

the parties. It is our considered opinion, therefore, that the ends of

justice and equity would be served best if the inclusion of the City of
Cebu, as one of the respondents herein, were considered a mere
formality and deemed effected, as if a formal amendment of the
pleadings had been made."

There can be no plausible reason why the above ruling on a procedural

matter, should not be applied in the case under consideration. It will be noted
that the case on appeal was an off-shoot of a mandamus proceeding instituted
against the incumbent Mayor, in his capacity as such. And the municipality of
Guimba is presumed to have taken steps to contest the claim of the
petitioners-appellees. We may safely say, therefore, that the requirement of
joinder of parties has been substantially complied with.
Next in the order of discussion is the more fundamental issue of whether the
respondent-appellant municipal treasurer was justified in refusing payment of the
vouchers. After the rendition of the decision ordering the reinstatement of the
petitioners and the payment of their back salaries, the municipal council of
Guimba passed resolutions assuming the responsibility for and authorizing the
inclusion of the back salaries in the budget. There is, however, no ordinance
appropriating the amount, until the present. At most, the resolutions were only
proposals to have the amount included in the "forthcoming budgets". A resolution
is ordinarily a declaration of a council, or a legislative body, evincing some
purpose or intent to do some act not the doing of the act itself. It is the intention to
enter upon some enterprise of public moment, something authorized by law that it
may do (W.B. Gibson Co vs. Warren Metropolitan Housing Authority, 29 N. E., 2d.
236). In the case at bar, the resolution assuming the obligation is considered as
merely an intention on the part of the council to have the amount equivalent to
the back salaries of appellees, included in the budget. A resolution may have the
expression of intendment, but in order to become effectual, it must be expressed
by legislative enactment, that is, by ordinance (City of Owensboro vs. Bd. of
Trustees, etc., 301 Ky. 113, 190 SW 2d, 1005, 1108). In this jurisdiction, all
municipal legislation creating liability should be embodied in an appropriation
ordinance (See. 2296, Revised Adm. Code). In the case under consideration, not
only was there no appropriation ordinance wherein the amounts involved have

been included in the budget of the municipality, but the municipal council itself
had subsequently disallowed the inclusion of the same in the budget. The
Revised Administrative Code further provides that the disbursements of municipal
funds shall be made by the municipal treasurer, upon properly executed
vouchers, pursuant to the budget (Sec. 2300). The Constitution also provides that
"no money shall be paid out of the Treasury except in pursuance of an
appropriation made by the municipal treasurer, upon properly executed
Philippines). The writ of mandamus will not issue unless the act desired is of
absolute obligation on the part of the person sought to be coerced; the relator
must show a clear legal right to have the thing done; the action sought must not
only be in the respondent's power to do, but it must be his duty to do it; the act
must be clearly prescribed and enjoined by law; the duty must be plain and
positive (Callaghan vs. Mc Gown, 90 S.W. 319, Meril on Mandamus, 43; cited in
Provincial Remedies & Special Civil Actions, Hernandez, Jr. and Feria; p. 152).
Only specific legal rights may be enforced by mandamus, if they are clear and
certain. (Viuda Hijos de Crispula Zamora vs. Wright, 53 Phil., 613). It is not a
legal duty of the respondent-appellant to honor the vouchers in question, without
a budget or appropriation ordinance, setting aside the funds to cover the salaries
of the appellees, and enacted or promulgated in accordance with law.
Mandamus, therefore, does not lie.

It would seem that in matters of this nature, the case of Baldivia vs. Lota, (107
Phil., 1099) has already blazed the trail that should be followed.
In view of all the foregoing, the decision appealed from is hereby reversed, and
another entered, dismissing the case, reserving, however, to the petitionersappellees the right to take the appropriate action. No pronouncement as to costs.
It is so ordered.
Paras, C.J., Bengzon, Padilla, Bautista Angelo, Labrador, Concepcin, Reyes,
J.B.L., and Gutierrez David, JJ., concur.
Barrera, J. concurs in the result.

(Discanso v. Gatmaytan, G.R. No. L-12226, [October 31, 1960], 109 PHIL 916921)
|||

The suggested answer was probably premised in the cited case of Baldivia vs. Lota, 107 Phil.
1099 (1960):
Indeed, respondent could have, and should have, either included the claim of petitioners herein
in the general budget he is bound to submit, pursuant to section 2295 of the Revised
Administrative Code, or prepared a special budget for said claim, and urged the municipal
council to appropriate the sum necessary therefor. In any event, if the municipal mayor fails or
refuses to make the necessary appropriation, petitioners may bring an action against the
municipality for the recovery of what is due them and after securing a judgment therefor,
seek a writ of mandamus against the municipal council and the municipal mayor to compel
the enactment and approval of the appropriation ordinance necessary therefor (19 R.C.L.
1951-1052; 34 Am. Jur., 950-951; 35 Am. Jur., 21)

JOSE BALDIVIA, MARCELO CAPUNO, CARLlTO CATAPANG,

ELISEO DIMACULANGAN, and RICARDO BATHAN, petitionersappellants, vs. FLAVIANO
LOTA,
as
Mayor
of
Taal,
Batangas, respondent-appellee.
Miguel Tolentino for appellants.
Assistant Provincial Fiscal Gregorio C. Panganiban, Assistant Solicitor
General Antonio A. Torres and Solicitor Eriberto D. Ignacio, for appellee.
SYLLABUS
1. MUNICIPAL CORPORATIONS; APPROPRIATION ORDINANCE;
REFUSAL OF MUNICIPAL MAYOR TO SIGN VOUCHERS FOR PAYMENT
OF LAWFUL CLAIMS AGAINST MUNICIPALITY, WHEN JUSTIFIED.
Article VI, section 23(2) of the Constitution of the Philippines, provides that "no
money shall be paid out of the Treasury except in pursuance of an
appropriation made by law." Pursuant thereto, section 2300 of the Revised
Administrative Code provides that "disbursements of municipal funds shall be
made by the municipal treasurer upon properly executed vouchers, pursuant
to the budget and with approval of the mayor," and the budget must be
incorporated into an appropriation ordinance, which shall be passed by the
municipal council, in accordance with law (Sections 2237, 2295 and 2296,

Revised Administrative Code). Where, therefore, as in the case at bar, there is

no such budget or appropriation ordinance setting aside the sums necessary
to pay the claims for leave pay of petitioners - members of the police force
who resigned from the service - the mayor was, not only justified in refusing,
but bound to refuse to approve the necessary vouchers.
2. ID.; ID.; REMEDY WHERE MUNICIPAL COUNCIL AND MUNICIPAL
MAYOR FAILED TO APPROPRIATE SUM FOR PAYMENT OF LAWFUL
CLAIMS AGAINST MUNICIPALITY. Where the municipal mayor fails or
refuses to submit or propose a budget for a just and legal claim against the
municipality, or the municipal council fails to appropriate the necessary sum,
the claimants may bring an action against the municipality for the recovery of
what is due them and after securing a judgment therefor, seek a writ of
mandamus against the municipal council and the municipal mayor to compel
the enactment and approval of the appropriation ordinance necessary therefor
(19 R.C.L. 1051-1052; 34 Am. Jur., 950-951; 35 Am. Jur., 21).
DECISION
CONCEPCION, J :
p

This is a petition for mandamus to compel respondent, Flaviano Lota,

as Mayor of Taal, Batangas, to approve certain vouchers. In due course, the
Court of First Instance of Batangas, presided over by Hon. Conrado M.
Vasquez, Judge, denied the petition, without pronouncement as to costs.
Hence, this appeal in which only questions of law are raised.
The facts, about which there is no dispute, are correctly set forth in the
decision appealed from in the following language:
"The petitioners Jose Baldivia, Marcelo Capuno, Carlito
Catapang, Eliseo Dimaculangan and Ricardo Bathan were former
members of the police force of the municipality of Taal, province of
Batangas. Shortly after the last election held in November 1955, the
petitioners resigned from their positions. They have brought this instant
action to compel the respondent Flaviano Lota in his capacity as

municipal mayor of Taal, Batangas, to approve the vouchers submitted

by the petitioners for the payment of the leave pay which they had in their
favor at the time of their separation from the service.
"The evidence of the petitioners show that the petitioners resigned
because they belong to a different political faction from that of the
respondent. In connection with their claim for their leave pay, they had
gone to the Office of the President in Malacaang, and were able to
secure a note from Assistant Executive Secretary Enrique c. Quema,
addressed to the Provincial Treasurer of Batangas, requesting the latter
to help the petitioners in securing the payment of their accumulated
vacation and sick leave (Exhibit 'A'). Acting on the said note of Mr.
Quema, the Provincial Treasurer wrote separate letters to the respondent
municipal mayor and to the municipal treasurer of Taal, Batangas,
interceding in behalf of the petitioners and suggesting a manner by
which their claim may be paid (Exhibits 'B' and 'C'). The petitioner Jose
Baldivia was actually able to receive one month leave pay on two
separate occasions, on December 1, 1955, and February 10, 1956,
respectively. The other petitioners were likewise able to receive one
month leave pay each on February 10, 1956. The petitioners claim,
however, that there is a balance remaining in their favor of unpaid
vacation leave in the amount of three and one-half (3 1/2) months in the
case of Jose Baldivia, and four months each in the case of the rest of the
petitioners, all at the rate of P35.00 a month. The municipal treasurer
prepared the corresponding vouchers for the payment of another one
month vacation leave to each of the petitioner and submitted them to the
respondent mayor for approval. The respondent, however, refused to
approve the same."

In justification for his act, respondent alleged that there is no

appropriation for the amount covered by said vouchers; that petitioners held
their positions illegally, they having served beyond the time limit prescribed by
law for the effectivity of their appointments as temporary employees; and that
said appointments were illegal, the same having been made without the
consent of the municipal council, which is required in sections 2199 and 2200
of the Revised Administrative Code.

Commenting thereon, the lower court said:

"The parties are agreed that the municipal council of Taal has not
approved any budget, regular or otherwise, for the payment of the leave
pay being claimed by the petitioners. Aurelio Beron, municipal treasurer
of Taal, testifying for the petitioners, had admitted that the previous
payments made to the petitioner were in pursuance of a supplementary
budget duly approved, but no budget has been authorized by the
municipal council in connection with the payment of the balance of the
leave pay corresponding to the petitioners. He stated, however, that the
financial position of the municipal government permits the payment of
the instant claim. The respondent municipal mayor has offered the
excuse for the inability of the municipal council to appropriate the
necessary funds on the alleged ground that the municipal government of
Taal is heavily indebted to several government institutions, and the funds
presently in its treasury are not sufficient to liquidate all of the said
indebtedness. Moreover, the municipal government has other and more
pressing obligations to meet before it could afford to set aside funds for
the leave pay of the petitioners.
"Under the circumstances set forth above, the instant action of the
petitioners must necessarily fail. If there are no funds validly
appropriated for the purpose, the respondent municipal mayor, or
anybody else for that matter, may not be compelled to approve a voucher
for the payment of the claim. The disbursements of municipal fund is not
the sole prerogative and responsibility of the municipal mayor. Section
2300 of the Revised Administrative Code explicity declares that 'The
disbursement of municipal funds shall be made by the municipal
treasurer upon properly executed vouchers, pursuant to the budget, with
the approval of the mayor.' It would indeed be not only futile, but likewise
illegal, for the mayor to approve a voucher to pay a claim for which no
appropriation has been made by the council."

Hence, the petition was denied, despite the sympathetic attitude of His
Honor, the Trial Judge, towards the plight of petitioners herein. They, however,
maintain that the decision appealed from should be reversed because they
are clearly entitled to collect the equivalent of the unpaid portion of their

terminal leave and the municipal government of Taal is in financial position to

meet their respective claims, and because respondent's inaction has had the
effect of excluding them from getting what is due to them under the law.
Petitioners' right to commutation of their terminal leave is indubitable.
Pursuant, however, to our fundamental law, "no money shall be paid out of the
Treasury except in pursuance of an appropriation made by law." (Article VI,
section 23 (2), Constitution of the Philippines). Implementing this constitutional
mandate, section 2300 of the Revised Administrative Code provides that
"disbursements of municipal funds shall be made by the municipal treasurer
upon properly executed vouchers, pursuant to the budget and with approval of
the mayor," and the budget must be incorporated into an appropriation
ordinance, which shall be passed by the municipal council, in accordance with
law (sections 2237-2239, 2295 and 2296, Revised Administrative Code).
There being, admittedly no such budget or appropriation ordinance setting
aside the sums necessary to pay the claims of petitioners herein, it is
apparent that respondent mayor was, not only justified in refusing, but bound
to refuse to approve the vouchers in question.
At this point, we cannot overlook, however, the well-considered
observations made in the decision appealed from respecting the behaviour of
respondent herein as a public officer. We quote, from said decision:
". . . while the Court feels itself powerless to grant the relief prayed
for by the petitioners, it could not help but express its sympathy with their
situation, and its displeasure with the manner by which they had been
deprived of a claim which appeared to be valid and meritorious. This
case is another manifestation of that unfortunate phenomenon in local
politics in this country wherein considerations of public interest have
been set aside for the satisfaction of petty factional jealousies and
sacrificed on the altar of political rivalries. The instant petitioners are
claiming only what is due them nothing more, nothing less. The payment
of leave pay to an employee who has been separated from the service
and who generally depends for his continued sustenance on such
amounts as may be collected by him by reason of his past services, is
not only an expression of simple justice on the part of the government,

but is also designed for the maintenance of the loftier ideal of morale in
the public service. The respondent in this case has shown unusual
interest not for the purpose of affording the petitioners the justice that is
due them, but in his attempt to find ways and means of defeating the
petitioners' claim. The respondent has admitted that he had spent over a
thousand pesos in going to different government offices and in making
several trips to Manila to consult with 'legal luminaries' to research and
find reasons to justify his refusal to pay the petitioners. It is ironic indeed
that in so doing, he actually spent more than what the petitioners are
claiming to be the balance of their unpaid leave. It may well be said that
had the respondent instead spent his money, time and effort to look for
means by which he could pay the petitioners, he would have dedicated
himself to a worthier cause and with decidedly lesser effort and
expense."

Indeed, respondent could have, and should have, either included the
claim of petitioners herein in the general budget he is bound to submit,
pursuant to section 2295 of the Revised Administrative Code, or prepared a
special budget for said claim, and urged the municipal council to appropriate
the sum necessary therefor. In any event, if the municipal mayor fails or
refuses to make the necessary appropriation, petitioners may bring an action
against the municipality for the recovery of what is due them and after
securing a judgment therefor, seek a writ of mandamus against the municipal
council and the municipal mayor to compel the enactment and approval of the
appropriation ordinance necessary therefor (19 R. C. L. 1051- 1052; 34 Am.
Jur., 950-951; 35 Am. Jur., 21).
Wherefore, the decision appealed from is hereby affirmed, without
special pronouncement as to costs. It is so ordered.
Paras, C.J., Bengzon, Montemayor, Bautista Angelo, Labrador,
Endencia, Barrera and Gutierrez David, JJ., concur.

|||

A.

B.

(Baldivia v. Lota, G.R. No. L-12716, [April 30, 1960], 107 PHIL 1099-1104)
To incur indebtedness
i.
To borrow
ii.
To issue bonds
iii.
Credit Financing
To sue and be sued
i.
Nature
ii.
Municipal Corporations files suites in behalf of inhabitants
Case: Municipality v. Abucay, 64 Phil 69

THE MUNICIPALITY OF ABUCAY, plaintiff-appellee, vs. ABUCAY

PLANTATION CO. and B. A. GREEN, defendants-appellants.
Briones & Martinez, Isidro Vamenta, and Jose C. Fajardo for appellants.
Solicitor-General Hilado for the Government.
SYLLABUS
1. MUNICIPALITIES; AUTHORITY TO SUE; AUTHORITY OF
MUNICIPAL PRESIDENT TO SIGN COMPLAINT; PRESUMPTIONS. In
support of the motion of dismiss, counsel for the defendants alleged that the
plaintiff's action should be dismissed because it did not establish that the
municipal council of Abucay had approved an ordinance or resolution
authorizing the institution of the action and empowering the municipal
president to represent it in the case. We believe that the contention is without
merit. The complaint shows that the one who instituted the action was the
municipality of Abucay, not the municipal president. Section 2165 of the
Revised Administrative Code authorizes municipalities to sue by instituting
civil actions, and to be sued. In the absence of any evidence to the contrary,
the presumption must be that the municipal council of Abucay, whose
members represent the municipality under Article IX, Title IX, of the aforesaid
Code, agreed by resolution or ordinance to bring the present action (sec. 334,
No. 14, Code of Civil Procedure). As to the other point, we not that the
municipal president did not represent either the municipality of Abucay or the

municipal council in the case. The complaint only shows that the municipal
president signed for the municipality of Abucay, plaintiff, after the latter's name
was made to appear as plaintiff. In these circumstances it can not be held that
the municipal president represented the municipality of Abucay or its
municipal council in the case, and it must also be presumed that said official
was actually authorized to sign the complaint for the plaintiff (sec. 334 No. 31,
Code of Civil Procedure).
2. PLEADING AND PRACTICE; TRIALS; MOTION TO DISMISS,
DENIAL OF; EFFECT WHEN THE MOVANT DID NOT RESERVE RIGHT TO
PRESIDENT EVIDENCE. The motion to dismiss filed by counsel for the
defendants during the trial and after the plaintiff had closed its evidence was in
effect a demurrer to the sufficiency of plaintiff's evidence. In reality it was
based upon the fact that the plaintiff had not established its standing or right to
bring the action; hence, the defendants missed the ordinance or resolution to
that effect enacted and approved by the municipal council of Abucay. It is a
practice sanctioned by the jurisprudence in this jurisdiction to permit both in
criminal and civil cases the presentation of motions to dismiss or demurrers to
the evidence based upon the insufficiency of the evidence of the prosecution
or of the plaintiff, and it has been invariably held that when the accused or the
defendants do not reserve their right to adduce evidence, the courts may
decide the case upon the evidence only thus submitted, and on appeal,
should the evidence be sufficient to affirm the appealed decision, the case will
not be remanded for a new trial to receive the evidence suppressed. (U. S. vs.
Abaroa, 3 Phil., 116; U. S. vs. Romero, 22 Phil., 565; U. S. vs. De la Cruz, 28
Phil., 279; U. S. vs. Choa Chiok, 36 Phil., 831; Demetrio vs. Lopez, 50 Phil.,
45; Moody, Aronson & Co. vs. Hotel Bilbao, 50 Phil., 198; Ortiz vs. Balgos, 54
Phil., 171). The same rule applies in election cases, except that when the
protestee reserves his right to adduce evidence, it is the duty o the court to
overrule the motion to dismiss and to require him to introduce his evidence in
support of his defenses or counterprotest, if any. (Demetrio vs. Lopez, supra.)
DECISION
IMPERIAL, J :
p

The municipality of Abucay, Province of Bataan, brought this action to

compel the defendants to open to the public the country roads Gabon,
Mabatang and Laon, situated within the said municipality; to remove the wire
fences constructed by them, and to refrain in the future from closing the said
roads to the public. Plaintiff alleged in its complaint that the said roads were
for public use from time immemorial and that the defendants, claiming to be
the owners thereof because included in their title to the plantation known as
the "Abucay Plantation Company," illegally closed them to the public. The
defendants in their answer only denied generally and specifically the material
allegations of the complaint. Upon motion of the plaintiff, the court issued a
preliminary injunction ordering the defendants to remove the fences or
obstructions which they placed upon the roads, and enjoining them, until
further order, from preventing and obstructing the public from using said
roads. After the plaintiff had adduced its evidence at the trial, counsel for the
defendants moved to dismiss the case upon the grounds that the plaintiff had
not established its cause of action; that it had not been established that the
municipal council of Abucay had authorized the municipal president, by
ordinance or resolution, to represent the plaintiff in the case, wherefore, its
standing in the case had not been proved, and that it had not been
established likewise that the municipal council of Abucay had agree to institute
the action. The court denied the motion to dismiss, and at the same time
decided the case declaring the Gabon, Mabatang and Laon roads open and
destined for public use, and made the preliminary injunction permanent, with
the costs to the defendants. The latter moved for a new trial, excepted to the
order denying said motion, and, finally, presented the bill of exceptions which
was approved by resolution of this court of October 23, 1934 in the mandamus
case, G. R. No. 42535, between the same parties.
As to the facts, the plaintiff established that the three roads in question
had existed during the Spanish regime and were always destined for the use
of the public and considered as property of the municipality of Abucay, open
for the common use and passage of the inhabitants of the town, although they
were then only footpaths with no well-defined width that they have now, which
is six (6) meters according to the cadastral plans. A portion of the Gabon road

crosses the hacienda of the Abucay Plantation Company, and the latter's
officers built a fence thereon and prevented its use by the public. In the partial
decisions rendered in cadastral case No. 3 of Abucay on March 28, 1919 and
February 2, 1922, the court held that the Gabon and Laon roads belonged to
the municipality of Abucay, destined for common and public use and ordered
that the corresponding decrees be issued in favor of said municipal
corporation. And in the partial decisions rendered on August 5, 1922, and July
21, 1927, in cadastral cases Nos. 7 and 9 of the same municipality, the court
likewise held that all highways, roads, streets, and alleys found within the
lands included in the cadastral plans, among them being the Mabatang road,
were public property of the Government of the Philippine Islands. In the plan
of the hacienda of the defendant corporation it appears that the three roads
aforesaid are excluded from the lands of the hacienda and are public roads
destined for the common use of the inhabitants of the town of Abucay.
In support of the motion to dismiss, counsel for the defendants alleged
that the plaintiff's action should be dismissed because it did not establish that
the municipal council of Abucay had approved an ordinance or resolution
authorizing the institution of the action and empowering the municipal
president to represent it in the case. We believed that the contention is without
merit. The complaint shows that the one who instituted the action was the
municipality of Abucay, not the municipal president. Section 2165 of the
Revised Administrative Code authorizes municipalities to sue by instituting
civil actions, and to be sued. In the absence of any evidence to the contrary,
the presumption must be that the municipal council of Abucay, whose
members represent the municipality under Article IX, Title IX, of the aforesaid
Code, agreed by resolution or ordinance to bring the present action (sec. 334,
No. 14, Code of Civil Procedure). As to the other point, we note that the
municipal president did not represent either the municipality of Abucay or the
municipal council in the case. The complaint only shows that the municipal
president signed for the municipality of Abucay, plaintiff, after the latter's name
was made to appear as plaintiff. In these circumstances it can not be held that
the municipal president represented the municipality of Abucay or its
municipal council in the case, and it must also be presumed that said official

was actually authorized to sign the complaint for the plaintiff (sec. 334, No. 31,
Code of Civil Procedure). We, therefore, reach the conclusion and so hold that
the first assignment of error is untenable.
As has been said, the court did not immediately pass upon the motion
to dismiss filed by counsel for the defendants, but denied the same in its
decision and at the same time considered the case on its merits without
waiting for the defendants to present their evidence. The latter contend that
the court erred in not affording them an opportunity to present their evidence
after denying their motion, and state in their brief that they filed said motion
conditionally, that is, without prejudice to their right to adduce evidence should
the motion to dismiss be denied. We have gone over the transcript of record
and found that counsel for the defendants did not reserve such right but
submitted the motion without any condition. The defendants insinuate that one
of their attorneys made the reservation which does not appear in the transcript
but which in a conversation with the judge, the latter accepted as having been
actually made. We cannot accept the contention upon this point because it
does not appear in the record and the trial judge, in his decision, stated
indirectly that the defendants did not reserve their right to adduce evidence.
As between what appears or record and what does not appear therein and
which is further denied by the other party, we choose to believe the former.

The motion to dismiss filed by counsel for the defendants during the trial
and after the plaintiff had closed its evidence was in effect a demurrer to the
sufficiency of plaintiff's evidence. In reality it was based upon the fact that the
plaintiff had not established its standing or right to bring the action; hence, the
defendants overlooked the ordinance or resolution to that effect enacted and
approved by the municipal council of Abucay. It is a practice sanctioned by the
jurisprudence in this jurisdiction to permit both in criminal and civil cases the
presentation of motions to dismiss or demurrers to the evidence based upon
the insufficiency of the evidence of the prosecution or of the plaintiff, and it has
been invariably held that when the accused or the defendants do not reserve
their right to adduce evidence, the courts may decide the case upon the

evidence only thus submitted, and on appeal, should the evidence be

sufficient to affirm the appealed decision, the case will not be remanded for a
new trial to receive the evidence suppressed. (U. S. vs. Abaroa, 3 Phil., 116;
U. S. vs. Romero, 22 Phil., 565; U. S. vs. De la Cruz, 28 Phil., 279; U. S. vs.
Choa Chiok, 36 Phil., 831; Demetrio vs. Lopez, 50 Phil., 45; Moody, Aronson
& Co. vs. Hotel Bilbao, 50 Phil., 198; Ortiz vs. Balgos, 54 Phil., 171.) The
same rule applies in election cases, except that when the protestee reserves
his right to adduce evidence, t is the duty of the court to overrule the motion to
dismiss and to require him to introduce his evidence in support of his
defenses or counterprotest, if any. (Demeterio vs. Lopez, supra.)
In the brief filed by counsel for the defendants, they cite the ruling in
Demeterio vs. Lopez, supra, thus giving the impression that the said ruling
favors their stand. A reading of the doctrine in said case reveals a
confirmation of the rule that when a defendant in a civil case presents a
motion to dismiss upon the ground of the insufficiency of plaintiff's evidence,
without reserving his right to present his own evidence, should the motion to
dismiss be overruled, he loses his right to adduce his evidence, and the court
may decide the case upon its merits taking into account only the evidence for
the plaintiff. The reason assigned for the doctrine thus established is, that in
such cases it must be understood that the party filing the motion to dismiss
without any reservation renounces its right to present evidence.
In the case of Ortiz vs. Balgos, supra, the doctrine has been reiterated
and the cases wherein the doctrine has been uniformly laid down has been
cited with approval. It will be seen from a reading of the decision that the
different result reached therein was due to the fact that the motion or demurrer
was not based upon the insufficiency of plaintiff's evidence, but upon the legal
question raised that a necessary party defendant had not been included in the
complaint.
Finding, therefore, that the defendants did not reserve their right to
adduce their evidence, we hold that the second assignment of error is
untenable.

The last assignment of error refers to the denial of the motion for new
trial. In view of the conclusions heretofore reached, we hold that the motion for
new trial was properly denied by the court and no error was thereby
committed.
For the foregoing considerations, the appealed judgment is affirmed,
with the costs of this instance to the defendants and appellants. So ordered.
Avancea, C. J., Villa-Real, Abad Santos, Diaz Laurel, and Concepcion,
JJ., concur.
(Municipality of Abucay v. Abucay Plantation Co., G.R. No. 42802, [February 8,
1937], 64 PHIL 69-75)
|||

Mancenido v. CA
G.R. NO. 118605(April 12, 2000)
FACTS: Petitioners, who are public school teachers, filed a case against the provincial officials
to compel them to pay their claims for unpaid salary increases. In this petition for review on
certiorari, they argue that the CA erred in recognizing the authority of the council of the
provincial officials to file a notice of appeal.
HELD: The SC held that in resolving whether a local government official may secure the
services of private counsel in an action filed against him in his official capacity, the nature of the
action and the relief sought are to be considered. In view of the damages sought in the case at bar
which, if granted, could result in personal liability, respondents could not be deemed to be
improperly represented by private counsel.

ANTONIO C. RAMOS, ROSALINDA M. PEREZ, NORMA C.

CASTILLO and BALIUAG MARKET VENDORS ASSOCIATION,
INC., petitioners, vs. COURT OF APPEALS, HON. CAMILO O.
MONTESA, JR., in his capacity as Presiding Judge of the
Regional Trial Court of Bulacan, Branch 19, and
MUNICIPALITY OF BALIUAG, respondents.
Aniano Albon, Remeo S. Salinas and Eliodoro C. Cruz for petitioners.
Sison Q. Jarapa for respondent Municipality.

SYLLABUS
1. ADMINISTRATIVE LAW; MUNICIPALITY; LAWSUITS; AUTHORIZED
REPRESENTATIVES; PRIVATE ATTORNEY; ONLY IN EXCEPTIONAL CASES.
The recent case of Municipality of Pililla, Rizal vs. Court of Appeals, set in
clear-cut terms the answer to the question of who may legally represent a
municipality in a suit for or against it. Only the provincial fiscal, provincial attorney,
and municipal attorney should represent a municipality in its lawsuits. Only in
exceptional instances may a private attorney be hired by a municipality to
represent it in lawsuits. These exceptions are enumerated in the case of Alinsug
vs. RTC, Br. 58, San Carlos City, Negros Occidental. Private lawyers may not
represent municipalities on their own. Neither may they do so even in
collaboration with authorized government lawyers. This is anchored on the
principle that only accountable public officers may act for and in behalf of public
entities and that public funds should not be expended to hire private lawyers.
2. ID.; ID.; ID.; UNAUTHORIZED REPRESENTATIVE; LEGALITY OF
APPEARANCE MAY BE RAISED AT ANY STAGE OF THE PROCEEDING.
Petitioners cannot be held in estoppel for questioning the legality of the
appearance of Atty. Romanillos, notwithstanding that they questioned the
witnesses of respondent municipality during the hearing of its motion to dissolve
the preliminary injunction. Municipality of Pililla, Rizal vs. Court of Appeals held
that the legality of the representation of an unauthorized counsel may be raised
at any stage of the proceedings. Elementary fairness dictates that parties
unaware of the unauthorized representation should not be held in estoppel just
because they did not question on the spot the authority of the counsel for the
municipality.
3. ID.; ID.; ID.; ID.; ADOPTION OF WORK ALREADY PERFORMED IN GOOD
FAITH; WHEN PROPER. Although a municipality may not hire a private lawyer
to represent it in litigations, in the interest of substantial justice, however, we hold
that a municipality may adopt the work already performed in good faith by such
private lawyer, which work is beneficial to it (1) provided that no injustice is
thereby heaped on the adverse party and (2) provided further that no
compensation in any guise is paid therefor by said municipality to the private

lawyer. Unless so expressly adopted, the private lawyer's work cannot bind the
municipality.
4. ID.; ID.; ID.; ID.; MOTION TO WITHDRAW APPEARANCE; NOTICE TO
ADVERSE PARTY WHO QUESTIONED THE APPEARANCE, NOT
NECESSARY. A motion to withdraw the appearance of an unauthorized lawyer
is a non-adversarial motion that need not comply with Section 4 of Rule 15 as to
notice to the adverse party. The disqualification of Atty. Romanillos was what
petitioners were really praying for when they questioned his authority to appear
for the municipality. The disqualification was granted, thereby serving the relief
prayed for by petitioners. Such being the case, no "notice directed to the parties
concerned and served at least 3 days before the hearing thereof" need be given
petitioners, the questioned motion not being contentious. Rules of procedure are
but tools designed to facilitate the attainment of justice, such that when rigid
application of the rules tend to frustrate rather than promote substantial justice,
this Court is empowered to suspend their operation.
DECISION
PANGANIBAN, J :
p

Who has the legal authority to represent a municipality in lawsuits? If

unauthorized lawyer represents a municipality, what is the effect of
participation in the proceedings? Parenthetically, does a motion to withdraw
appearance of the unauthorized counsel have to comply with Rule 15 of
Rules of Court regarding notice and hearing of motions?

an
his
the
the

These questions are answered by this Court in resolving this petition for review
under Rule 45 of the Rules of Court of the Decision 1 of public respondent 2 in
CA-G.R. SP No. 23594 promulgated on March 15, 1991, which denied due
course to and dismissed the petition therein. Also assailed is the Resolution 3 of
public respondent promulgated on May 9, 1991, which denied the motion for
reconsideration for lack of merit.
The Facts

The facts as found by public respondent are undisputed, to wit: 4

"On April 18, 1990, petitioners Antonio C. Ramos, Rosalinda M. Perez,
Norma C. Castillo, and the Baliuag Market Vendors Association, Inc.
filed a petition before the court a quo docketed as Civil Case No. 264-M9 for the Declaration of Nullity of Municipal Ordinances No. 91 (1976)
and No. 7 (1990) and the contract of lease over a commercial arcade to
be constructed in the municipality of Baliuag, Bulacan.
On April 27, 1980, during the hearing on the petitioners' motion for the
issuance of preliminary injunction, the Provincial Fiscal appeared as
counsel for respondent Municipality of Baliuag, which opposed the
petition. Whereupon, a writ of preliminary injunction was issued by the
court a quo on May 9, 1990.
Meanwhile, on May 3, 1990, the Provincial Fiscal and the Provincial
Attorney, Oliviano D. Regalado, filed an Answer in (sic) behalf of
respondent municipality.
At the pre-trial conference scheduled on May 28, 1990, Atty. Roberto B.
Romanillos appeared, manifesting that he was counsel for respondent
municipality. On the same date, and on June 15, 1990, respectively, Atty.
Romanillos filed a motion to dissolve injunction and a motion to admit an
Amended Answer with motion to dismiss.
On June 18, 1990, Provincial Attorney Oliviano D. Regalado appeared
as collaborating counsel of Atty. Romanillos. The Provincial Fiscal did
not appear. It was Atty. Romanillos who submitted the Reply topetitioners' Opposition to respondents' motion to dissolve injunction. It
was also Atty. Romanillos who submitted a written formal offer of
evidence on July 17, 1990 for respondent municipality.
During the hearing on August 10, 1990, petitioners questioned the
personality of Atty. Romanillos to appear as counsel of (sic) the
respondent municipality, which opposition was reiterated on August 15,
1990, and was put in writing in petitioners' motion of August 20, 1990 to
disqualify Atty. Romanillos from appearing as counsel for respondent

municipality and to declare null and void the proceedings participated in

and undertaken by Atty. Romanillos.
Meanwhile, Atty. Romanillos and Atty. Regalado filed a joint motion dated
August 22, 1990 stating, among others, that Atty. Romanillos was
withdrawing as counsel for respondent municipality and that Atty.
Regalado, as his collaborating counsel for respondent municipality, is
adopting the entire proceedings participated in/undertaken by Atty.
Romanillos.
On September 19, 1990 respondent Judge issued the Order now being
assailed which, as already stated, denied petitioners' motion to disqualify
Atty. Romanillos as counsel for respondent municipality and to declare
null and void the proceedings participated in by Atty. Romanillos; and on
the other hand, granted Atty. Regalado's motion 'to formally adopt the
entire proceedings including the formal offer of evidence.' In support of
his foregoing action, respondent Judge reasoned:
'Petitioners' motion for the disqualification of Atty. Romanillos as
respondent municipality's counsel is deemed moot and academic
in view of his withdrawal as counsel of said municipality pursuant
to a joint motion dated August 22, 1990, although he shall remain
as counsel on record of private respondent Kristi Corporation.
Atty. Oliviano Regalado under the same joint motion moved for
the adoption of the entire proceedings conducted by collaborating
counsel, Atty. Romanillos.
It is noted that Atty. Romanillos initially entered his
appearance as collaborating counsel of the Provincial Prosecutor
and the Provincial Attorney when he filed a motion to dissolve
injunction under motion dated May 30, 1990 and since then
despite his active participation in the proceedings, the opposing
counsel has never questioned his appearance until after he made
a formal offer of evidence for the respondents. The acquiescence
of petitioners' counsel of (sic) his appearance is tantamount to a
waiver and petitioners are, therefore, estopped to question the
same. In all the pleadings made by Atty. Romanillos, it was clearly
indicated that he was appearing as the collaborating counsel of

the Provincial Attorney. Besides, petitioners' counsel failed to

submit their comment and/or objection to the said joint motion of
respondents' counsel as directed by the Court within the
reglementary period. By virtue of these circumstances, all the
proceedings attended to and participated in by said collaborating
counsel is a fait accompli and the Court finds no cogent
justification to nullify the same.'
Petitioners' motion for reconsideration of the foregoing Order was denied
by respondent Judge in his Order dated October 19, 1990, the second
Order now being assailed. Respondent Judge reiterated the
observations which he made in the Order of September 19, 1990 that
Atty. Romanillos, while actively handling the said case was merely
appearing as the collaborating counsel of both the Provincial Prosecutor
and the Provincial Attorney of Bulacan; that Atty. Romanillos' appearance
was 'never impugned by petitioners' and was only questioned after his
(Atty. Romanillos') submission of the formal offer of evidence for
respondent; and that therefore, said court proceedings 'is (sic) a fait
accompli'. Respondent Judge went on to say that the declaration of
nullity of said proceedings and the re-taking of the same evidence by the
same parties is (sic) "apparently an exercise in futility'. He added that in
the absence of untimely objection by petitioners to Atty. Romanillos'
appearance as the collaborating counsel, petitioners are guilty of laches
for having slept on (sic) their rights and are estopped as their
acquiescence may be considered as waiver of such right. Furthermore,
according to respondent Judge, assuming that the proceedings had
been 'tainted with frailness to render the same legally objectionable,' the
same has been 'legally remedied' by its formal adoption upon motion of
the Provincial Accorney (sic), Atty. Regalado, who is not disqualified to
appear as counsel for the municipality of Baliuag, for the reason that by
virtue of Section 19 of R.A. No. 5185 (The Decentralization Act of 1967),
the authority to act as legal officer/adviser for (sic) civil cases of the
province of Bulacan, of which the municipality of Baliuag is a political
subdivision, has been transferred from the Provincial Fiscal (now
Provincial Prosecutor) of Bulacan to the Provincial Attorney thereof."

As earlier stated, the Court of Appeals dismissed the petition and denied the
motion for reconsideration. Hence this recourse.
The Issues
The issues raised by petitioners in their Memorandum are: 5
"1) Under present laws and jurisprudence, can a municipality be
represented in a suit against it by a private counsel?
2) If not, what is the status of the proceedings undertaken by an
unauthorized private counsel;
3) Can the provincial attorney of a province act as counsel of a
municipality in a suit;
4) Can the provincial attorney adopt with legal effect the proceedings
undertaken by an unauthorized private counselof (sic) a
municipality;
5) May a court act on an alleged motion which violates Sections 4 and 5
of Rule 15 and Section 26, Rule 128 of the Rules of Court."

Petitioners contend that the assailed Decision which affirmed the Orders of the
trial court is void for being violative of the following laws: 6
"VI-1 The respondent court violated Section 1683 of the
Revised Administrative Code; Section 3, paragraph 3 (a)
of Republic Act No. 2264, otherwise known as the Local
Autonomy Act; and Section 35; Book IV, Title III, Chapter
12,Administrative Code of 1987 (Executive Order No. 292) when it
authorized Atty. Oliviano D. Regalado, the Provincial Attorney of
Bulacan, to appear as counsel for respondent Municipality of
Baliuag.
VI-2 The respondent court violated Section 1683 of the
Revised Administrative Code; Section 3, paragraph 3 (a)
of Republic Act No. 2264, otherwise known as the Local
Autonomy Act; Section 35, Book IV, Title III, Chapter

12, Executive
Order No. 292, otherwise
known
as
the Administrative Code of 1987; and Article 1352 of the New Civil
Code, when it denied the petitioners' motion to declare the
proceedings undertaken or participated in by said Atty. Roberto B.
Romanillos, as private counsel of respondent Municipality, null
and void.
VI-3 The respondent court acted in excess of its jurisdiction and in grave
abuse of discretion when it acted and granted the respondent's
JOINT MOTION dated August 22, 1990 (Annex 'H') which, as a
rule, is a mere worthless piece of paper which the respondent
judge/court has no authority to act upon, considering that said
motion was filed in court in patent violation of or without
complying with the mandatory requirements provided for by
Sections 4 and 5 of Rule 15 and Section 26 of Rule 138 of the
Rules of Court."

Public respondent did not give due course to the petition "because it does
not prima facie show justifiable grounds for the issuance of certiorari." 7 Public
respondent adds that: 8
"Considering the foregoing jurisprudence, the logical conclusion is that
the Provincial Attorney of Bulacan has now the authority to represent the
municipality of Baliuag in its law suits.
It follows that respondent Judge was correct in ruling in the assailed
Order of October 19, 1990 that even assuming, arguendo, that the
proceedings by the court a quo which had been participated in by Atty.
Romanillos are legally objectionable, this was legally remedied by the
formal adoption by the provincial Attorney, Atty. Regalado, of the said
proceedings, considering that the provincial attorney is not disqualified
from representing the municipality of Baliuag in civil cases.
In the second place, the record discloses that Atty. Romanillos had
appeared as counsel for respondent municipality of Baliuag in
collaboration with the Provincial Prosecutor and the Provincial Attorney,
as shown in the motion to dissolve injunction dated May 28, 1990 which
Atty. Romanillos had filed for respondent municipality. Accordingly and

pursuant to the aforecited provisions of law, it cannot correctly be said

that respondent Judge had acted with grave abuse of discretion when he
allowed Atty. Romanillos to act as private counsel and Atty. Regalado,
Provincial Attorney of Bulacan, to appear as counsel for respondent
Municipality of Baliuag. Perforce, it also cannot be correctly said that
respondent Judge violated the aforecited provisions when he denied
petitioners' motion to declare null and void the proceedings undertaken
by and participated in by Atty. Romanillos as private counsel of the
municipality of Baliuag.
At any rate, even granting, only for the sake of argument, that Atty.
Romanillos' appearance as counsel for the municipality could not be
legally authorized under the aforesaid provisions of law, the fact that Atty.
Regalado as Provincial Attorney of Baliuag had formally adopted the
proceedings participated in by Atty. Romanillos as counsel for the
municipality of Baliuag had served, as already stated, to cure such a
defect.
llcd

Thirdly, We are likewise unable to see grave abuse of discretion in

respondent Judge's actuation in granting the joint motion filed by Atty.
Romanillos and Atty. Regalado for the withdrawal of the former as private
counsel of respondent municipality, and the adoption by the latter of the
proceedings participated in/undertaken by the former, including the
formal offer of evidence submitted by the former."

Public respondent likewise found that the "joint motion does not partake of the
nature of an adversarial motion which would have rendered non-compliance with
Sections 4 and 5 of Rule 15 of the Rules of Court fatal to the motion." 9 It is to be
emphasized that petitioners "sought the disqualification of Atty. Romanillos . . .
(Thus,) what petitioners had sought to (be) achieve(d) in their said motion was in
fact what Atty. Romanillos had sought . . . in the joint motion dated August 22,
1990." 10
Respondent municipality submits that Section 19 of RA 5185:
"is not meant to prohibit or prevent the Provincial Attorney to act as legal
adviser and legal officer for municipalities and municipal districts

because such interpretations would be to say the least, absurb (sic). In

this jurisdiction, a province is composed of municipalities and municipal
districts, and therefore they are deemed included in the provisions of
Section 19 of Republic Act 5185. It is also impractical and contrary to the
spirit of the law to limit the sphere of authority of the Provincial Attorney
to the province only. " 11

The different allegations boil down to three main issues: (1) Who is authorized to
represent a municipality in a civil suit against it? (2) What is the effect on the
proceedings when a private counsel represents a municipality? Elsewise stated,
may the proceedings be validated by a provincial attorney's adoption of the
actions made by a private counsel? (3) Does a motion of withdrawal of such
unauthorized appearance, and adoption of proceedings participated in by such
counsel have to comply with Sections 4 and 5 12 of Rule 15 of the Rules of
Court?
The Court's Ruling
We affirm the Decision and Resolution of public respondent.
First Issue: Who Is Authorized to Represent a
Municipality in Its Lawsuits?
In the recent case of Municipality of Pililla, Rizal vs. Court of Appeals, 13 this
Court, through Mr. Justice Florenz D. Regalado, set in clear-cut terms the answer
to the question of who may legally represent a municipality in a suit for or against
it, thus: 14
". . . The matter of representation of a municipality by a private attorney
has been settled in Ramos vs. Court of Appeals, et al., 15 and reiterated
in Province of Cebu vs. Intermediate Appellate Court, et al., 16 where we
ruled that private attorneys cannot represent a province or municipality in
lawsuits.
Section 1683 of the Revised Administrative Code provides:

'Section 1683. Duty of fiscal to represent provinces and provincial

subdivisions in litigation. The provincial fiscal shall represent
the province and any municipality or municipal district thereof in
any court, except in cases whereof (sic) original jurisdiction is
vested in the Supreme Court or in cases where the municipality or
municipal district in question is a party adverse to the provincial
government or to some other municipality or municipal district in
the same province. When the interests of a provincial government
and of any political division thereof are opposed, the provincial
fiscal shall act on behalf of the province.
When the provincial fiscal is disqualified to serve any
municipality or other political subdivision of a province, a special
attorney may be employed by its council.' 17
Under the above provision, complemented by Section 3, Republic Act
No. 2264, the Local Autonomy Law, 18 only the provincial fiscal and the
municipal attorney can represent a province or municipality in their
lawsuits. The provision is mandatory. The municipality's authority to
employ a private lawyer is expressly limited only to situations where the
provincial fiscal is disqualified to represent it. 19
For the aforementioned exception to apply, the fact that the provincial
fiscal was disqualified to handle the municipality's case must appear on
record. 20 In the instant case, there is nothing in the records to show that
the provincial fiscal is disqualified to act as counsel for the Municipality of
Pililla on appeal, hence the appearance of herein private counsel is
without authority of law."

The provincial fiscal's functions as legal officer and adviser for the civil cases of a
province and corollarily, of the municipalities thereof, were subsequently
transferred to the provincial attorney. 21
The foregoing provisions of law and jurisprudence show that only the provincial
fiscal, provincial attorney, and municipal attorney should represent a municipality
in its lawsuits. Only in exceptional instances may a private attorney be hired by a

municipality to represent it in lawsuits. These exceptions are enumerated in the

case of Alinsug vs. RTC Br. 58, San Carlos City, Negros Occidental, 22 to wit: 23
"Indeed, it appears that the law allows a private counsel to be hired by a
municipality only when the municipality is an adverse party in a case
involving the provincial government or another municipality or city within
the province. This provision has its apparent origin in the ruling in De
Guia v. The Auditor General (44 SCRA 169, March 29, 1979) where the
Court held that the municipality's authority to employ a private attorney is
expressly limited only to situations where the provincial fiscal would be
disqualified to serve and represent it. With Sec. 1683 of the
old Administrative Code as legal basis, the Court therein cited Enriquez,
Sr. v. Gimenez [107 Phil. 932 (1960)] which enumerated instances when
the provincial fiscal is disqualified to represent in court a particular
municipality; if and when original jurisdiction of case involving the
municipality is vested in the Supreme Court, when the municipality is a
party adverse to the provincial government or to some other municipality
in the same province, and when, in a case involving the municipality, he,
or his wife, or child, is pecuniarily involved, as heir legatee, creditor or
otherwise.

Thereafter, in Ramos vs. Court of Appeals (108 SCRA 728, October 30,
1981), the Court ruled that a municipality may not be represented by a
private law firm which had volunteered its services gratis, in collaboration
with the municipal attorney and the fiscal, as such representation was
violative of Sec. 1683 of the old Administrative Code. This strict
coherence to the letter of the law appears to have been dictated by the
fact that 'the municipality should not be burdened with expenses of hiring
a private lawyer' and that the interests of the municipality would be best
protected if a government lawyer handles its litigations."' (Italics
supplied.)

None of the foregoing exceptions is present in this case. It may be said that Atty.
Romanillos appeared for respondent municipality inasmuch as he was already
counsel of Kristi Corporation which was sued with respondent municipality in this

same case. The order of the trial court dated September 19, 1990, stated that
Atty. Romanillos "entered his appearance as collaborating counsel of the
provincial prosecutor and the provincial attorney." 24 This collaboration is contrary
to law and hence should not have been recognized as legal. It has already been
ruled in this wise:
"The fact that the municipal attorney and the fiscal are supposed to
collaborate with a private law firm does not legalize the latter's
representation of the municipality of Hagonoy in Civil Case No. 5095-M.
While a private prosecutor is allowed in criminal cases, an analogous
arrangement is not allowed in civil cases wherein a municipality is the
plaintiff." 25

As already stated, private lawyers may not represent municipalities on their own.
Neither may they do so even in collaboration with authorized government
lawyers. This is anchored on the principle that only accountable public officers
may act for and in behalf of public entities and that public funds should not be
expended to hire private lawyers.
Petitioners cannot be held in estoppel for questioning the legality of the
appearance of Atty. Romanillos, notwithstanding that they questioned the
witnesses of respondent municipality during the hearing of its motion to dissolve
the preliminary injunction. Municipality of Pililla, Rizal vs. Court of Appeals 26 held
that the legality of the representation of an unauthorized counsel may be raised
at any stage of the proceedings. This Court stated that: 27
"The contention of Atty. Mendiola that private respondent cannot raise for
the first time on appeal his lack of authority to represent the municipality
is untenable. The legality of his representation can be questioned at any
stage of the proceedings. In the cases hereinbefore cited, the issue of
lack of authority of private counsel to represent a municipality was only
raised for the first time in the proceedings for the collection of attorney's
fees for services rendered in the particular case, after the decision in that
case had become final and executory and/or had been duly executed."

Elementary fairness dictates that parties unaware of the unauthorized

representation should not be held in estoppel just because they did not question

on the spot the authority of the counsel for the municipality. The rule on
appearances of a lawyer is that
"(u)ntil the contrary is clearly shown, an attorney is presumed to be
acting under authority of the litigant whom he purports to represent.
(Azotes v. Blanco, 78 Phil. 739) His authority to appear for and represent
petitioner in litigation, not having been questioned in the lower court, it
will be presumed on appeal that counsel was properly authorized to file
the complaint and appear for his client. (Republic v. Philippine
Resources Development Corporation, 102 Phil. 960)" 28

Second Issue: Effect on Proceedings by Adoption

of Unauthorized Representation
Would the adoption by Atty. Regalado of the proceedings participated in by Atty.
Romanillos validate such proceedings? We agree with public respondent that
such adoption produces validity. Public respondent stated the reasons 29 to which
we agree:
"Moreover, it does not appear that the adoption of proceedings
participated in or undertaken by Atty. Romanillos when he was private
counsel for the respondent municipality of Baliuag such as the
proceedings on the motion to dissolve the injunction, wherein petitioners
had even cross-examined the witnesses presented by Atty. Romanillos in
support of said motion and had even started to present their witnesses to
sustain their objection to the motion would have resulted in any
substantial prejudice to petitioners' interest. As We see it, to declare the
said proceedings null and void notwithstanding the formal adoption
thereof by Atty. Regalado as Provincial Attorney of Bulacan who is
authorized to represent respondent municipality of Baliuag in court
and to require trial anew to cover the same subject matter, to hear the
same witnesses and to admit the same evidence adduced by the same
parties cannot enhance the promotion of justice."

This Court believes that conferring legitimacy to the appearance of Atty.

Romanillos would not cause substantial prejudice on petitioners. Requiring new

trial on the mere legal technicality that the municipality was not represented by a
legally authorized counsel would not serve the interest of justice. After all, this
Court does not see any injustice committed against petitioners by the adoption of
the work of private counsel nor any interest of justice being served by requiring
retrial of the case by the duly authorized legal representative of the town.
In sum, although a municipality may not hire a private lawyer to represent it in
litigations, in the interest of substantial justice however, we hold that a
municipality may adopt the work already performed in good faith by such private
lawyer, which work is beneficial to it (1) provided that no injustice is thereby
heaped on the adverse party and (2) provided further that no compensation in
any guise is paid therefor by said municipality to the private lawyer. Unless so
expressly adopted, the private lawyer's work cannot bind the municipality.
Third Issue: "Joint Motion" Need Not Comply with Rule 15
We also agree with the justification of public respondent that a motion to withdraw
the appearance of an unauthorized lawyer is a non-adversarial motion that need
not comply with Section 4 of Rule 15 as to notice to the adverse party. The
disqualification of Atty. Romanillos was what petitioners were really praying for
when they questioned his authority to appear for the municipality. The
disqualification was granted, thereby serving the relief prayed for by petitioners.
Such being the case, no "notice directed to the parties concerned and served at
least 3 days before the hearing thereof" 30 need be given petitioners, the
questioned motion not being contentious. Besides, what petitioners were
questioning as to lack of authority was remedied by the adoption of proceedings
by an authorized counsel, Atty. Regalado. The action of the trial court allowing
the motion of respondent municipality effectively granted petitioners' motion to
disqualify Atty. Romanillos. In People vs. Leviste, 31 we ruled that:
"While it is true that any motion that does not comply with the
requirements of Rule 15 should not be accepted for filing and, if filed, is
not entitled to judicial cognizance, this Court has likewise held that
where a rigid application of the rule will result in a manifest failure or
miscarriage of justice, technicalities may be disregarded in order to
resolve the case. Litigations should, as much as possible, be decided on

the merits and not on technicalities. As this Court held in Galvez

vs. Court of Appeals, 'an order of the court granting the motion to
dismiss despite the absence of a notice of hearing, or proof of service
thereof, is merely an irregularity in the proceedings . . . (which) cannot
deprive a competent court of jurisdiction over the Case."'(citations
omitted).

It should be remembered that rules of procedure are but tools designed to

facilitate the attainment of justice, such that when rigid application of the rules
tend to frustrate rather than promote substantial justice, this Court is empowered
to suspend their operation. 32
WHEREFORE, premises considered, the Petition is DENIED and the assailed
Decision and Resolution are AFFIRMED. No costs.
cda

SO ORDERED.
Narvasa, C.J., Davide, Jr., Melo, and Francisco, JJ., concur.
|||

(Ramos v. Court of Appeals, G.R. No. 99425, [March 3, 1997], 336 PHIL 33-48)

BAYANI SUBIDO, ETC., ET AL., petitioners-appellants, vs. HON.

ARSENIO H. LACSON, ETC., ET AL., respondents-appellees.
Abelardo Subido & Associates for appellants.
City Fiscal Eugenio Angeles and Asst. Fiscal Eulogio Serrano for
appellees.
SYLLABUS
1. PARTIES; PUBLIC CORPORATION; REAL PARTY; ACTION FOR
REFUND OF ILLEGALLY COLLECTED FEES. An action for refund of fees
collected under an illegal ordinance, should, under ordinary circumstances
include, the City of Manila as a party as the funds have been received by it
and will have to be returned by it if the action succeeds. The officials

concerned are not ordinarily the real party in interest but the City or public
corporation itself.
2. ID.; ID.; WHEN CEASED AS REAL PARTY; OFFICIALS AS REAL
PARTIES IN INTEREST. It is no longer necessary to include the City as the
real party in interest, when it has already acquiesced to the refund by the
approval of the appropriation which includes the total amount to be refunded.
In that case, the City has ceased to be the real party in interest; the real
parties in interest now are the officers or officials of the City who refuse to
perform their ministerial acts and duties.
3. MANDAMUS; REFUND OF ILLEGALLY COLLECTED FEES;
ORDINARY ACTION NOT ADEQUATE. The extraordinary legal remedy of
mandamus and prohibition are more speedy and adequate to bring about the
end or purpose desired by the petitioners. As the Auditor has already
authorized payment of the claims, and the President has affirmed the decision
of the Auditor, and the Municipal Board of the City of Manila has already
appropriated the funds necessary for the payment of the claims, an ordinary
action would be superflous and entail more delay than is necessary for the
purposes of petitioners.
4. APPEAL AND ERROR; QUESTIONS NOT RAISED IN COURT
BELOW. Questions which have not been raised for the first time in the
court a quo are not subject to be considered in the appellate court.
DECISION
LABRADOR, J :
p

Action for mandamus instituted on March 22, 1954, against the City
Auditor and the City Treasurer of Manila to pass in audit and pay the claims of
petitioners for refund of meat inspection fees collected under Ordinance No.
2991 (approved November 23, 1946), from the year 1946 to 1951, amounting
to around P179,461.33. The Mayor of the City of Manila is joined as defendant
because he has ordered the City Auditor and the City Treasurer to suspend

action on the said claims, and it is sought to prohibit him from enforcing said
order.
The case was submitted for decision upon an agreed statement of facts
and various documents having relation to official action in connection with the
claims. The stipulation of facts is as follows:
"1. Petitioners (with the exception of Atty. Bayani Subido) are duly
licensed meat vendors in the city markets who paid meat inspection fees
under Ordinance No. 2991.
"2. The respondent Hon. Arsenio H. Lacson is the incumbent
Mayor of Manila, while the respondent Hon. Marcelino Sarmiento is the
incumbent City Treasurer of Manila.
"3. That on June 11, 1951 in an opinion No. 6 the Secretary of
Justice ruled that Ordinance No. 2991 was illegal and void because it
was "patently beyond the power of the City of Manila to enact," and that
the City of Manila forthwith stopped the enforcement of the said
ordinance.
"4. That on May 5, 1951, petitioners, through their counsel, Atty.
Bayani Subido, filed their claims for refund of meat inspection fees with
the City Treasurer.
"5. That the Hon. Manuel de la Fuente, then mayor of the City of
Manila referred the matter to the Auditor General for a ruling as to
whether or not meat inspection fees claimed by the petitioners were
refundable, the same having been paid without protest.
"6. That on June 17, 1952, the respondent Mayor Arsenio H.
Lacson informed petitioners' counsel Atty. Bayani Subido that the Auditor
General had authorized the refund of meat inspection fees regardless of
whether or not the fees were paid with or without protest, and requested
that complete statement of claims for refunds be submitted to his office
so that he may ask the Municipal Board to appropriate the necessary
funds therefor.

"7. That petitioners, by counsel, informed the respondent Mayor

Arsenio H. Lacson that they had submitted the complete statement of
claims to the Municipal Board totalling P219,007.93 meat inspection fees
paid by petitioners to the City Government under Ordinance No. 2991.
"8. That on October 31, 1952, the respondent Mayor Arsenio H.
Lacson approved the City Budget for the year 1952-1953 which city
budget was denominated as Ordinance No. 3538 of the City of Manila.
"9. That after the approval of Ordinance No. 3538 by the
respondent Mayor Arsenio H. Lacson, the Secretary of the Municipal
Board, informed the respondent City Treasurer in a letter dated
November 3, 1952 that the claims of petitioners amounting to
P219,007.93 filed through counsel have been included in the amount of
P297,349.93 under "Miscellaneous Expenditures" of the Appropriation
Ordinance No. 3538 of the City of Manila for the fiscal year 1952- 1953.
"10. That when petitioners presented the vouchers covering the
refund of meat inspection fees paid by them from 1946-1951 the
respondent City Treasurer advised them that he will pay only the claims
for two years from the date the claims were filed in accordance with a 7th
Indorsement of the Auditor General dated April 7, 1952, that is, from May
5, 1949 to May 5, 1951.
"11. That in view of the information given by the respondent City
Treasurer, petitioners filed separate vouchers for the authorized period
from May 5, 1949 to May 5, 1951, and another set for the remaining
claims, that is, for the period from May 5, 1946 to May 6, 1949.
"12. That the respondent Mayor suspended the payment of meat
inspection fees in an order dated January 16, 1953, after the claims of
petitioners amounting to P33,834.80 had been paid. Ground for the
suspension was the investigation ordered by the respondent Mayor
Arsenio H. Lacson of the alleged loss of public documents in the City
Veterinarian's office bearing on the refund.
"13. That the petitioners, through counsel, urged the respondent
Mayor Arsenio H. Lacson to exclude them from the suspension order in a

letter dated January 17, 1953. But the respondent Mayor, replying on the
same day, assured petitioners that payments will be resumed after a
thorough investigation of the alleged loss of documents in the City
Veterinarian's Office bearing on the claims.
"14. That in a letter dated February 23, 1954, the respondent
mayor authorized the respondent City Treasurer 'to effect the refund of
said fees (meat inspection fees) provided that the claims therefor had
been filed within the period of two years from the date of collection
thereof by the City'.
"15. That on January 18, 1954, the Auditor General revised its
ruling contained in his 7th Indorsement dated April 7, 1952, allowing the
payment of refunds of meat inspection fees within five years from the
date the claims were filed, provided however, that said dealers or their
attorneys were not officially advised nor furnished a copy of the
aforementioned 7th Indorsement of April 7, 1952 of the Auditor General
before November 19, 1952.
"16. That petitioners were advised of the contents of the 7th
Indorsement of April 7, 1952 of the Auditor General on December 18,
1952 by the respondent City Treasurer.
"17. That the claim of petitioner B. Almario for P5,711.70 within
the two-year period was paid in July, 1954.
"18. That the respondent City Treasurer will make payment of the
claims of petitioners upon the revocation of the ban contained in letter
dated January 16, 1953 (Exhibit 'I') and letter dated February 23,1954
(Exhibit 'P'). In other words, when these letters are revoked by this
Honorable Court, the respondent City Treasurer will pay the claims upon
presentation of the vouchers.
"19. That respondent City Treasurer is the department head that
approves the vouchers for claims for refund of meat inspection fees as
prepared by his office.

"20. That previous to the issuance of letter dated February 23,

1954, the vouchers for refund of meat inspection fees were not passed
through the respondent City Mayor's Office for approval.
"21. That the respondent City Treasurer is under the supervision
and control of the Mayor in accordance with the City Charter.
"22. That the City Auditor will act on the vouchers for refund of
meat inspection fees when the same are submitted to him.
"23. That the claims of petitioners still unpaid are those paid within
the five-year period from the filing of the claims."

The Court of First Instance, Hon. Froilan Bayona presiding, ruled that
"there exists no authority promulgated by Congress which gives any one the
authority to sue the City Mayor and Treasurer of the City of Manila in lieu of
the said City as a public corporation, because any judgment that could be
rendered against said officials for refund of license fees unlawfully collected
and levied would be unenforceable against the City of Manila and the funds of
the latter (City of Manila) in possession or custody of said officials cannot be
paid or disposed by them to satisfy any judgment." From the above judgment
petitioners have appealed to this Court.
There is no question that an action for refund of fees collected under an
illegal ordinance, should, under ordinary circumstances, include the City of
Manila as a party as the funds have been received by it and will have to be
returned by it if the action succeeds. The officials concerned are not ordinarily
the real party in interest but the City or public corporation itself. The situation
in the case at bar is, however, entirely different, because (1) the claims for
refund have been passed upon favorably and have been authorized to be paid
by the Auditor General of the Philippines, whose decision has, upon appeal to
the President of the Philippines, been confirmed by the latter; (2) the
petitioners herein had submitted the list of their claims to the Municipal Board
of the City and the latter in its Ordinance No. 3538, which is the appropriation
ordinance for the City for the fiscal year 1952-1953, had approved an item
amounting to P297,349.93 designated as "Miscellaneous Expenditures,"

which includes the sum of P219,007.93, representing the total amount to be

refunded to the petitioners (Exhibit "D," attached to the Stipulation of Facts);
(3) some of the claims presented of the same nature as those of the
petitioners had already been paid and the City Treasurer is ready and willing
to make payment of the claims, except that the City Mayor has ordered the
suspension of the payments (see par. 18, Stipulation of Facts).

It is apparent, therefore, that the City had agreed to the refund of the
fees collected under the invalid ordinance by the approval in accordance with
law of the corresponding appropriation for the purpose, so that the only
impediment to the petitioners' action is the refusal of the City Treasurer to
approve the vouchers and pay the claims under the excuse that the City
Mayor has ordered the suspension of such payments.
It has been held that when an officer refuses or neglects to perform an
act which the law imposes as an obligation or a duty, mandamus lies against
such officer to compel him to execute the ministerial act. We have so held in
the cases of Lamb vs. Phipps, 22 Phil., 456; Cia. Gen. de Tobacos vs. French
and Unson, 39 Phil., 34; Suanes vs. Chief Accountant of the Senate, et al., 81
Phil., 818. It is no longer necessary to include the City as the real party in
interest, because it has already acquiesced to the refund by the approval of
the appropriation necessary for the purpose. The City has ceased to be the
real party in interest; the real parties in interest now are the officers or officials
of the City who refuse to perform their ministerial acts and duties to pay the
claims, to the prejudice of the petitioners.
It is urged in support of the decision of the court a quo that the City
Mayor who is vested with the executive control of all the departments of the
City government has the power to order the suspension of such payments by
the City Treasurer. Before the present action was instituted, the suspension
might have been in part justified, because of suspicions entertained by the
City Mayor that irregularities have been committed in the refund of claims of
other persons similarly situated as the petitioners. But such excuse or reason

has ceased to exist with the report of the Chief, General Investigation Section
of the Police Department of the City, dated June 7, 1953 (Exhibit "U"), finding
no such irregularities.
Then the acts of the chief executive of the City and even of the
President of the Philippines should and must be in accordance with law and
reason; in other words, the control that the law vests in executive officers is
not arbitrary; the control must be exercised in accordance with law and the
facts. Abuse of such power of control is not within the contemplation of the law
granting authority of control to executive officials. In the case at bar, under the
circumstances, the control by the Mayor can be said to have been abused,
there being no reason or ground for further ordering the suspension of
payments, it being apparent that the claims appeared to be legitimate. The
objection to the action in this particular is, therefore, without merit.
It is also urged that the action of mandamus does not lie but an ordinary
action for refund of the inspection fees collected under the illegal ordinance.
We hold that under the circumstances of the case an ordinary action would
not be adequate. The extraordinary legal remedy of mandamus and
prohibition are more speedy and adequate to bring about the end or purpose
desired by the petitioners. As the Auditor has already authorized payment of
the claims, and the President has affirmed the decision of the Auditor, and the
Municipal Board of the City of Manila has already appropriated the funds
necessary for the Payment of the claims, an ordinary action would be
superfluous and would entail more delay than is necessary for the purposes of
petitioners.
Other questions and objections raised in the brief of the respondents
are either beyond the agreed statement of facts or improperly injected in this
Court on appeal, such questions not having been raised for the first time in the
court a quo and, therefore, not subject to be considered in this Court.
(Coingco vs. Flores, 82 Phil., 284, 46 Off. Gaz., 1566; People vs. Mejares, 90
Phil., 102; Talento, et al. vs. Makiki, et al., 93 Phil., 855, 49 Off. Gaz., 4331;
The Shell Co P. I., Ltd. vs. Vao, 94 Phil., 389, 50 Off. Gaz., 1046
Lamko vs. Dioso, et al., 97 Phil., 821.)

The judgment appealed from is hereby reversed and let the writ issue
as prayed for in the petition, against the respondent City Mayor, to prevent him
from suspending or interfering with the approval and payment of the claims of
the petitioners and against the City Treasurer to compel him to pay the
petitioners' claims after the approval of the vouchers supporting the same.
The action against the City Auditor is hereby dismissed, it appearing from the
stipulation of facts that he has nothing to do with the payment of the claims.
Costs against respondents in both instances.
Paras, C.J., Bengzon, Montemayor, Bautista Angelo, Concepcion,
Reyes, J. B. L., Endencia and Felix, JJ., concur.
Reyes, A., J., concurs in the result.
|||

(Subido v. Lacson, G.R. No. L-9957, [April 20, 1958], 103 PHIL 417-424)