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[G.R. No. L-31444. November 13, 1974.]


Petitioner was appointed thrice as a Temporary Municipal Policeman of the municipality

of Maramag, Bukidnon; two of which were classified as provisional in nature as attested to by
the Provincial Treasurer of Bukidnon, and the Commissioner of Civil Service. Pursuant to said
appointments, petitioner took his oath of office and served as such, for the municipality of
Maramag, Bukidnon. At the time of petitioner's original appointment, it was alleged that
petitioner was 41 years of age and was still a second year high school.

Petitioner was then suspended from the service as such patrolman of the Police Force of
Maramag, Bukidnon, because of the filing of a criminal case against him for Infidelity in the
Custody of the Prisoner. Assistant Provincial Fiscal Arcadio D. Fabria moved for the provisional
dismissal of the case on the ground that the prosecution did not have sufficient evidence to prove
the guilt of the petitioner beyond reasonable doubt. After the dismissal of the case against the
petitioner, he (petitioner) presented oral and written request for reinstatement to the service and
also claimed for payment of his back salary corresponding to the time of his reinstatement and
payment of his back salary turned down by respondent. Petitioner commenced the mandamus
case demanding that respondent municipality be compelled to pay his back salaries during his
period of suspension, basing his claim on section 4 of Republic Act No. 557, 2 which reads:

"SEC 4.When a member of the provincial guards, city police or municipal police
is accused in court of any felony or violation of law by the provincial fiscal or
city fiscal, as the case may be, the provincial governor, the city mayor or the
municipal mayor shall immediately suspend the accused from office pending the
final decision of the case by the court and, in case of acquittal the accused shall
be entitled to payment of the entire salary he failed to receive during his

The court dismissed the petition. Hence this appeal.


Whether or not petitioner is entitled to his back salaries during his preventive suspension
from office as a provisional appointee.


NO. A provisional appointee, being at best a de facto officer because he did not possess
the necessary qualifications, was, upon his reinstatement following the dropping of criminal
charges against him, not entitled to payment of back salaries corresponding to the period of his
preventive suspension.

Under Republic Act No. 4864, otherwise known as the Police Act of 1966, Section 9, the
general qualifications for appointment to a local police agency are: (1) that the appointee be not
less than twenty-three nor more than thirty-three years of age, and (2) in the case of an
appointment in a municipal police force, that the appointee must have at least completed high
school. When petitioner was first appointed as temporary municipal policeman, he was already
41 years old, he was at least 46, clearly 13 years over the maximum age qualification, when he
was extended his latest provisional appointment as municipal policeman. His having studied
only up to second year in high school, a couple of years short of the minimum educational
requirement for the position to which he had been appointed, merely accentuates further his lack
of the qualifications required by law.

The infirmity of petitioner's appointment was not mere absence of civil service eligibility
but of qualifications for the office. It affected therefore the very validity of such appointment,
and precluded the reinstatement he claimed after he was suspended. During his tenure he was at
best only a de facto officer and as such entitled to emoluments for actual services rendered. His
provisional appointment did not render nugatory the requirements of Section 9 of the Police Act
of 1966 so as to give color of validity to petitioner's occupancy of the position. Thus, while
Section 11 of the same Act authorized provisional appointments of policemen where no civil
service eligibles are available therefor, it expressly required that "in case of a patrolman-
appointee, he shall possess at least the general qualifications provided for in Section nine of this
Act" in order that he could be appointed provisionally. "(T)he tolerance, acquiescence or mistake
of the proper officials, resulting in the non-observance of the pertinent rules on the matter, does
not render the legal requirement (in this case the possession of the general qualifications for
appointment to the local police agency), ineffective and unenforceable."
The decision appealed from is affirmed.
[G.R. No. 30188. October 2, 1928.]


The petitioners allege that the respondent judge 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. He now has reached that age and, therefore, under provisions of section 148 of
the Administrative Code as amended, is disqualified from acting as a judge of the Court of First
Instance. Petitioners further allege that in view of the many election protests and criminal cases
for violation of the election law, the Honorable Sixto de la Costa was duly designated and acted
as auxiliary judge of the Province of Oriental Negros and 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 be 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 and criminal actions in said court since the auxiliary judge refused to try the
same on the ground that the preliminary investigations were held before him. It was further
contended 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 a 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.


Whether or not the title of a de facto officer can be questioned in a prohibition



NO. 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 judged, cannot be treated as a substitute
for quo warranto, or be rightfully called upon to perform any of the functions of that writ.

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. He differs, on the one hand, from a mere usurper who
undertakes to act officially without any color of right, and on the others hand, from a judge de
jure who is in all respects legally appointed and qualified and whose term of office has not

In the present case, the respondent’s 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 functions, 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, 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 and criminal cases. The official acts of a de facto justice
cannot be 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 in 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 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
officer his title can be determined only in a quo warranto proceeding or information in the nature
of quo warranto at suit of the sovereign."