G.R. No.

L-30188

October 2, 1928

FELIPE TAYKO, EDUARDO BUENO, BAUTISTA TAYKO, BERNARDO SOLDE and VICENTE
ELUM, petitioners,
vs.
NICOLAS CAPISTRANO, acting as Judge of First Instance of Oriental Negros. ALFREDO B.
CACNIO, as Provincial Fiscal of Oriental Negros, and JUAN GADIANI, respondents.
Abad Santos, Camus and Delgado and Teopisto Guingona for petitioners.
Araneta and Zaragoza for respondents.
The respondent Judge in his own behalf.

OSTRAND, J.:
This is a petition for a writ of prohibition enjoining the respondent judge from making cognizance of
certain civil and criminal election cases in which the petitioners are parties.
The petitioners allege that the respondent judge, previous to this date, was appointed judge of the
Court of First Instance of Oriental Negros, to hold office during good behavior and until he should
reach the age of 65 years; that he now has reached that age and, therefore, under the provisions of
section 148 of the Administrative Code as amended, is disqualified from acting as a judge of the
Court of First Instance. The petitioners further allege that in view of the many election protests and
criminal cases for violation of the election law filed in the Court of First Instance of Oriental Negros
arising in the Court of First Instance of Oriental Negros arising from the last election of June 5, 1928,
the Honorable Sixto de la Costa was duly designated and acted as auxiliary judge of the Province of
Oriental Negros; that between the auxiliary judge and the respondent judge herein there was an
understanding, and the assignment of the said auxiliary judge was made with this understanding,
that the said auxiliary judge so designated would hear and take cognizance of all election protests
and criminal actions then pending or to filed arising from the said last general election, and that the
respondent Honorable Nicolas Capistrano would try and hear the ordinary cases pending in the said
court, but, notwithstanding this understanding or agreement, the respondent judge tried and is still
trying to take cognizance of the election protests an criminal actions in said court; that the
respondent judge declared in open court that he will try the criminal cases herein mentioned for the
reason that the auxiliary judge refused to try the same on the ground that the preliminary
investigations were held before him, when, in truth and in fact, the said auxiliary judge did not make
the statement imputed to him and was and is still willing to try the election protests and criminal
cases for violation of the election law pending in the court of the Province of Oriental Negros; that
the respondent Honorable Nicolas Capistrano, in spite of the fact that he was holding and is now
pretending to hold the office of judge of the Court of First Instance of Oriental Negros, took great
interest and active part in the filing of criminal charges against the petitioners herein to the
unjustifiable extent of appointing a deputy fiscal, who then filed the proper informations, when the
provincial fiscal refused to file criminal charges against the petitioners for violation of the election law
for lack of sufficient evidence to sustain the same; that said respondent is neither a judge de
jure nor de facto, but that, notwithstanding this fact, he continues to hold the office of judge of the

Court of First Instance of Oriental Negros and pretends to be duly qualified and acting judge of the
said province; and that he has tried, and continues to try, to act as such judge and that there is
reasonable ground to believe that he will take cognizance of the cases in question unless he be
restrained by order of this court; that in acting as a duly qualified judge notwithstanding the facts
alleged in the fifth, sixth, and seventh paragraphs hereof, the respondent judge acted and is about to
act without and in excess of jurisdiction and also after the loss of jurisdiction.
To this petition the respondents demur on the ground that the facts stated in that (1) none of the
facts alleged in the petition divest the respondent judge of his jurisdiction to take cognizance of the
cases referred to in the complaint, and (2) even admitting as true, for the sake of this demurrer, the
facts alleged in paragraph 7 of the petition, the respondent judge is still a de facto judge and his title
to the office and his jurisdiction to hear the cases referred to in the petition cannot be questioned by
prohibition, as this writ, even when directed against persons acting as judges, cannot be treated as a
substitute for quo warranto, or be rightfully called upon to perform any of the functions of that writ.
The ground upon which the petition rests may be reduced to three propositions. (1) That the
assignment of the Auxiliary Judge, Sixto de la Costa, to Dumaguete was made with the
understanding that the he was to hear and take cognizance of all election contests and criminal
causes for violation of the election law and that the respondent judge was to take cognizance of the
ordinary cases and that there was an understanding between them that this arrangement was to be
followed.
(2) That the respondent judge took great interest and an active part in the filing of the
criminal charges against the petitioners herein to the unjustifiable extent of appointing a
deputy fiscal who filed the proper informations when the regular provincial fiscal refused to
file them for lack of sufficient evidence.
(3) That the respondent judge is already over 65 years of age and has, therefore,
automatically ceased as judge of the Court of First Instance of Oriental Negros and that he is
neither a judge de jure nor de facto.
(a) But little need be said as to the first proposition. A writ of prohibition to a judge of
an interior court will only lie in cases where he acts without or in excess of his
jurisdiction (section 226, Code of Civil Procedure), and it is obvious that a mere
"understanding" as to the distribution of cases for trial did not deprive the respondent
judge of the jurisdiction conferred upon him by law. It may be noted that it is not
alleged that another judge had taken cognizance of the cases in question or that they
had been definitely assigned to trial before such other judge.
(b) The second proposition is equally untenable. That the respondent judge took
great interest and an active part in the filing of the criminal charges against the
petitioners to the extent of appointing a deputy fiscal when the regular provincial
fiscal refused to file the proper informations, did not disqualify him from trying the
case in question. Section 1679 of the Administrative Code provides that "when a
provincial fiscal shall be disqualified by personal interest to act in a particular case or
when for any reason he shall be unable, or shall fail, to discharge any of the duties of
1awph!l.net

his position, the judge of the Court of First Instance of the province shall appoint an
acting provincial fiscal, . . . ." (Emphasis ours.)
The determination of the question as to whether the fiscal has failed to discharge his
duty in the prosecution of a crime must necessarily, to a large extent, lie within the
sound discretion of the presiding judge, and there is no allegation in the petition that
such discretion was abused in the present instance. It is true that it is stated that the
appointment of the acting fiscal was "unjustifiable," but that is only a conclusion of
law and not an allegation of facts upon which such a conclusion can be formed and
may, therefore, be disregarded. It follows that in appointing an acting fiscal, the
respondent judge was well within his jurisdiction.
(c) The third ground upon which the petition is based is the most important and
merits some consideration. It is well settled that the title to the office of a judge,
whether de jure or de facto, can only be determined in a proceeding in the nature
of quo warranto and cannot be tested by prohibition. But counsel for the petitioners
maintains that the respondent judge is neither a judge de jure nor de facto and that,
therefore, prohibition will lie. In this, counsel is undoubtedly mistaken.
The respondent judge has been duly appointed to the office of Judge of the Court of First Instance of
Oriental Negros, but section 148 of the Administrative Code, as amended, provides that "Judges of
the Court of First Instance and auxiliary judges shall be appointed to serve until they shall reach the
age of sixty-five years." In view of this provision and assuming, as we must, that the allegations of
the petition are true, it is evident that the respondent is no longer a judge de jure, but we do not think
that it can be successfully disputed that he is still a judge de facto.
Briefly defined, a de facto judge is one who exercises the duties of a judicial office under color of an
appointment or election thereto (Brown vs. O'Connell, 36 Conn., 432). He differs, on the one hand,
from a mere usurper who undertakes to act officially without any color of right, and on the other
hand, from a judge de jure who is in all respects legally appointed and qualified and whose term of
office has not expired (State vs. Carroll, 38 Conn., 449; Denny vs. Matton, 2 Allen [Mass.], 361; Van
Slyke vs. Farmers' Mut. Fire Ins. Co., 39 Wis., 390).
Apart from any constitutional or statutory regulation on the subject there seems to be a
general rule of law that an incumbent of an office will hold over after the conclusion of his
term until the elction and qualification of a successor (22 R. C. L., pp. 554-5). When a judge
in good faith remains in office after his title has ended, he is a de facto officer (Sheehan's
Case, 122 Mass., 445).
Applying the principles stated to the facts set forth in the petition before us, we cannot escape the
conclusion that, on the assumption that said facts are true, the respondent judge must be considered
a judge de facto. His term of office may have expired, but his successor has not been appointed, and
as good faith is presumed, he must be regarded as holding over in good faith. The contention of
counsel for the petitioners that the auxiliary judge present in the district must be considered the
regular judge seems obviously erroneous.

In these circumstances the remedy prayed for cannot be granted. "The rightful authority of a judge,
in the full exercise of his public judicial function, cannot be questioned by any merely private suitor,
nor by any other, excepting in the form especially provided by law. A judge de facto assumes the
exercise of a part of the prerogative of sovereignty, and the legality of that assumption is open to the
attack of the sovereign power alone. Accordingly, it is a well established principle, dating from the
earliest period and repeatedly confirmed by an unbroken current of decisions, that the official acts of
a de facto judge are just as valid for all purposes as those of a de jure judge, so far as the public or
third persons who are interested therein are concerned. The rule is the same in civil criminal cases.
The principle is one founded in policy and convenience, for the right of no one claiming a title or
interest under or through the proceedings of an officer having an apparent authority to act would be
safe, if it were necessary in every case to examine the legality of the title of such officer up to its
original source, and the title or interest of such person were held to be invalidated by some
accidental defect or flaw in the appointment, election or qualification of such officer, or in the rights of
those from whom his appointment or election emanated; nor could the supremacy of the laws be
maintained, or their execution enforced, if the acts of the judge having a colorable, but not a legal
title, were to be deemed invalid. As in the case of judges of courts of record, the acts of a justice de
facto cannot be called in question in any suit to which he is not a party. The official acts of a de
facto justice cannot b attacked collaterally. An exception to the general rule that the title of a person
assuming to act as judge cannot be questioned in a suit before him is generally recognized in the
case of a special judge, and it is held that a party to an action before a special judge may question
his title to the office of a judge on the proceedings before him, and that the judgment will be reversed
on appeal, where proper exceptions are taken, if the person assuming to act as special judge is not
a judge de jure. The title of a de facto officer cannot be indirectly questioned in a proceeding to
obtain a writ of prohibition to prevent him from doing an official act nor in a suit to enjoin the
collection of a judgment rendered by him. Having at least colorable right to the office his title can be
determined only in a quo warranto proceeding or information in the nature of a quo warranto at suit
of the sovereign." (15 R. C. L., pp. 519-521.)
The demurrer to the petition is sustained, and inasmuch as it is evident that the weakness of the
petition cannot be cured by amendment the present proceedings are hereby dismissed with the
costs against the petitioners jointly and severally. The preliminary injunction hereinbefore issued is
dissolved. So ordered.
Avancea, C. J., Johnson, Street, Malcolm, Villamor, Romualdez, and Villa-Real, JJ., concur.
G.R. No. L-30188

October 2, 1928

FELIPE TAYKO, EDUARDO BUENO, BAUTISTA TAYKO, BERNARDO SOLDE and VICENTE
ELUM, petitioners,
vs.
NICOLAS CAPISTRANO, acting as Judge of First Instance of Oriental Negros. ALFREDO B.
CACNIO, as Provincial Fiscal of Oriental Negros, and JUAN GADIANI, respondents.
FACTS:

This is a petition for a writ of prohibition enjoining the respondent judge from making cognizance of
certain civil and criminal election cases in which the petitioners are parties.
The ground upon which the petition rests may be reduced to three propositions.
(1) That the assignment of the Auxiliary Judge, Sixto de la Costa, to Dumaguete was made with the
understanding that the he was to hear and take cognizance of all election contests and criminal
causes for violation of the election law and that the respondent judge was to take cognizance of the
ordinary cases and that there was an understanding between them that this arrangement was to be
followed.
(2) That the respondent judge took great interest and an active part in the filing of the criminal
charges against the petitioners herein to the unjustifiable extent of appointing a deputy fiscal who
filed the proper informations when the regular provincial fiscal refused to file them for lack of
sufficient evidence.
(3) That the respondent judge is already over 65 years of age and has, therefore, automatically
ceased as judge of the Court of First Instance of Oriental Negros and that he is neither a judge de
jure nor de facto.
To this petition the respondents demur on the ground that the facts stated in that (1) none of the facts
alleged in the petition divest the respondent judge of his jurisdiction to take cognizance of the cases
referred to in the complaint, and (2) even admitting as true, for the sake of this demurrer, the facts
alleged in paragraph 7 of the petition, the respondent judge is still a de facto judge and his title to the
office and his jurisdiction to hear the cases referred to in the petition cannot be questioned by
prohibition, as this writ, even when directed against persons acting as judges, cannot be treated as a
substitute for quo warranto, or be rightfully called upon to perform any of the functions of that writ.
ISSUE: W/N the decision of a de facto judge is valid and binding.
HELD: Briefly defined, a de facto judge is one who exercises the duties of a judicial office under
color of an appointment or election thereto. He differs, on the one hand, from a mere usurper who
undertakes to act officially without any color of right, and on the other hand, from a judge de jure who
is in all respects legally appointed and qualified and whose term of office has not expired.
Applying the principles stated to the facts set forth in the petition before us, we cannot escape the
conclusion that, on the assumption that said facts are true, the respondent judge must be considered
a judge de facto. His term of office may have expired, but his successor has not been appointed, and
as good faith is presumed, he must be regarded as holding over in good faith. The contention of

counsel for the petitioners that the auxiliary judge present in the district must be considered the
regular judge seems obviously erroneous.
Accordingly, it is a well established principle, dating from the earliest period and repeatedly
confirmed by an unbroken current of decisions, that the official acts of a de facto judge are
just as valid for all purposes as those of a de jure judge, so far as the public or third persons
who are interested therein are concerned. The rule is the same in civil criminal cases. The
principle is one founded in policy and convenience, for the right of no one claiming a title or interest
under or through the proceedings of an officer having an apparent authority to act would be safe, if it
were necessary in every case to examine the legality of the title of such officer up to its original
source, and the title or interest of such person were held to be invalidated by some accidental defect
or flaw in the appointment, election or qualification of such officer, or in the rights of those from whom
his appointment or election emanated; nor could the supremacy of the laws be maintained, or their
execution enforced, if the acts of the judge having a colorable, but not a legal title, were to be
deemed invalid. As in the case of judges of courts of record, the acts of a justice de facto cannot be
called in question in any suit to which he is not a party. The official acts of a de facto justice cannot b
attacked collaterally. An exception to the general rule that the title of a person assuming to act as
judge cannot be questioned in a suit before him is generally recognized in the case of a special
judge, and it is held that a party to an action before a special judge may question his title to the office
of a judge on the proceedings before him, and that the judgment will be reversed on appeal, where
proper exceptions are taken, if the person assuming to act as special judge is not a judge de jure.
The title of a de facto officer cannot be indirectly questioned in a proceeding to obtain a writ of
prohibition to prevent him from doing an official act nor in a suit to enjoin the collection of a judgment
rendered by him. Having at least colorable right to the office his title can be determined only in a quo
warranto proceeding or information in the nature of a quo warranto at suit of the sovereign.
G.R. No. 93479

June 25, 1991

TEODORO G. BARROZO, petitioner,

vs.
THE CIVIL SERVICE COMMISSION and VALENTINO L. JULIAN, respondents.
Amado D. Orden and Vicente Millora for petitioner.
Evalyn H. Itaas-Fetalino, Normita L. Villanueva and Dante G. Huerta for Civil Service Commission.
Sanidad Law Offices & Luiz L. Lardizabal, Marciano E. Concepcion and Benjamin Rillera for private
respondent.

CRUZ, J.:

The facts of this case are familiar. They involve the same arrogation of power by the public
respondent that we have rejected in earlier cases.
On November 10, 1988, David G. Borja retired as City Engineer of Baguio. On that date, petitioner
Teodoro G. Barrozo was a Senior Civil Engineer of the Department of Public Works and Highways
assigned to the Office of the City Engineer of Baguio. Private respondent Valentino L. Julian was the
Assistant City Engineer of Baguio.
On December 27, 1988, Mayor Ramon L. Labo, Jr. extended to the petitioner a permanent
appointment as City Engineer of Baguio. This appointment was approved by the Civil Service
Regional Office No. 1 on January 2, 1989. On February 16, 1989, after his protest was rejected by
Mayor Labo, the private respondent appealed the appointment to the Merit Systems Board of the
Civil Service Commission, claiming that as a qualified next-in-rank officer, he had pre-emptive rights
over the petitioner. On November 22, 1989, the Civil Service Commission Cordillera Administrative
Region (CSC-CAR) to which the appeal was referred, declared the petitioner's appointment void for
being violative of Civil Service promotion rules. His motion for reconsideration having been denied,
the petitioner then appealed to the Civil Service Commission. On March 5, 1990, the public
respondent issued the resolution now under challenge. The motion for reconsideration thereof was
denied on May 23, 1990.
1

The text of the resolution carried the significant statement that "a comparative analysis of the
qualifications of the contestants shows that both meet the minimum requirements for the position of
City Engineer."
The Commission also found. however, that
There is no showing that Julian who is next-in-rank to the contested position is barred by law
or suffers from any legal disqualification to occupy the position of City Engineer. Neither is
there any showing that Barrozo possesses far superior qualifications nor special reasons
cited by the appointing authority why Julian cannot be promoted to the higher position. This
being so, the Commission finds the appointment of Barrozo not in accordance with Civil
Service Law, rules and regulations. At this juncture. it is significant to stress that while the
appointing authority enjoys a wide latitude of discretion in the selection of personnel for his
agency, nevertheless such discretion must be exercised within the confines of Civil Service
Law, rules and regulations.
It therefore disposed as follows:
WHEREFORE, foregoing premises considered, the Commission resolved to dismiss as it
hereby dismisses the instant appeal of Teodoro Barrozo for lack of merit. Accordingly, the
CSC-CAR decision dated November 22, 1989 is affirmed insofar, as the revocation of the
appointment of Barrozo is concerned but sets aside said decision insofar as subjecting the
contestants to screening and evaluation by the Personnel Selection Board. It is hereby
directed that Valentino L. Julian be appointed to the position of City Engineer of Baguio.
1avvphi1

We note that the Commission has once again directed the appointment of its own choice contrary to
our consistent ruling on this matter. Only recently, in Lapinid v. Civil Service Commission, we again
emphasized:
3

We declare once again, and let us hope for the last time, that the Civil Service Commission
has no power of appointment except over its own personnel. Neither does it have the
authority to review the appointments made by other offices except only to ascertain if the

appointee possesses the required qualifications. The determination of who among aspirants
with the minimum statutory qualifications should be preferred belongs to the appointing
authority and not the Civil Service Commission. It cannot disallow an appointment because it
believes another person is better qualified and much less can it direct the appointment of its
own choice.
Appointment is a highly discretionary act that even this Court cannot compel. While the act of
appointment may in proper cases be the subject of mandamus, the selection itself of the
appointee taking into account the totality of his qualifications, including those abstract
qualities that define his personality is the prerogative of the appointing authority. This is a
matter addressed only to the discretion of the appointing authority. It is a political question
that the Civil Service Commission has no power to review under the Constitution and the
applicable laws.
In his Comment, the Solicitor General has taken a stand against the respondent Commission, relying
on the above-stated doctrine as earlier enunciated in the leading case of Luego v. Civil Service
Commission and only recently in Gaspar v. Civil Service Commission, Teologo v. Civil Service
Commission and Patagoc v. Civil Service Commission. In fairness, however, he also moved that the
Commission be given an opportunity to submit its own Comment in defense of its own decision. The
public respondent has done so and insists that since the disputed vacancy was being filled by
promotion, it was imperative that the next-in-rank rule be observed. Disregard of that rule called for
the disapproval of the petitioner's appointment in favor of the private respondent, who was the
Assistant City Engineer of Baguio at the time the controversial vacancy occurred.
4

This argument is not well-taken. The law does not absolutely require that the person who is next in
rank shall be promoted to fill a vacancy. In fact, the vacancy may be filled not by promotion but "by
transfer of present employees in the government service, by reinstatement by re-employment of
persons separated through reduction in force, or by appointment of persons with the civil service
eligibility appropriate to the position." What the Civil Service Act provides in its Sec. 19(3) is that if a
vacancy is filled by promotion, the person holding that position next-in-rank thereto "shall
be considered for promotion."
8

The said provision reads in full as follows:

Section 19. Recruitment and Selection of Employees. . . .
xxx

xxx

xxx

(3) When a vacancy occurs in a position in the second level of the Career Service as defined
in Section 7, the employees in the government service who occupy the next lower positions
in the occupational group under which the vacant position is classified, and in other
functionally related occupational groups and who are competent, qualified and with the
appropriate civil service eligibility shall be considered for promotion. (Emphasis supplied)
Interpreting the next-in-rank rule, we said in Santiago v. Civil Service Commission:

One who is next in rank is entitled to preferential consideration for promotion to the higher
vacancy but it does not necessarily follow that he and no one else can be appointed. The
rule neither grants a vested right to the holder nor imposes a ministerial duty on the
appointing authority to promote such person to the next higher position.

And, indeed, as we noted in the recent case of Abila v. Civil Service Commission, the Commission
itself, in implementing the said law, provides in its Resolution No. 89-779 as follows:
10

B. Rules on Protest Cases

xxx

xxx

xxx

xxx

xxx

Rule III. Procedure in Filling Vacancies

xxx

Section 2. Positions in the Second Level. When a vacancy occurs in the second level of
the career service as herein defined, the employees in the department who occupy the next
lower positions in the occupational group under which the vacant position is classified, and in
other functionally related occupational groups, who are competent and qualified and with
appropriate civil service eligibility shall be considered for appointment to the vacancy.
(Emphasis supplied)
It is presumed that, conformably to the above injunctions, Mayor Labo dutifully considered the
private respondent for promotion to the position of City Engineer of Baguio City although he
ultimately decided in favor of the petitioner. There being no showing that the appointing authority has
gravely abused his discretion, even this Court must respect his decision.
We find that, as in the many other earlier cases, the Commission has again overstepped its
authority, encroached upon the discretion of the appointing authority, and officiously directed the
appointment of its own choice. Hence, we must again reverse its action.
Lapinid declared that "henceforth, departure from the mandate of Luego by the Civil Service
Commission after the date of the promulgation of this decision shall be considered contempt of this
Court and shall be dealt with severely, in view especially of the status of the contemner." No
sanctions are imposed at this time as the case at bar arose before the promulgation of Lapinid.
WHEREFORE, the petition is GRANTED. The permanent appointment of Teodoro G. Barrozo as
City Engineer of Baguio City is declared VALID. Resolution No. 90-247 dated March 5, 1990, and
Resolution No. 90-462, dated May 23, 1990, of the respondent Civil Service Commission are hereby
SET ASIDE, without any pronouncement as to costs.
SO ORDERED.