Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No.

L-30057 January 31, 1984 BRUNO O. APARRI, petitioner, vs. THE COURT OF APPEALS and LAND AUTHORITY, the latter in substitution for REMEDIOS O. FORTICH, as Chairman, ANGELINO M. BANZON, RAFAEL B. HILAO, VALERIANO PLANTILLA and SEVERO YAP, as members of the Board of Directors of the defunct National Resettlement and Rehabilitation Administration (NARRA), respondents. Enrique D. Tayag for petitioner. Magno B. Pablo and Cipriano A. Tan for respondent Land Authority.

MAKASIAR, J.: This petition for certiorari seeks to review the decision of the then Court of Appeals (now Intermediate Appellate Court under BP 129) dated September 24, 1968, affirming the decision of the then Court of First Instance (now Regional Trial Court), the dispositive portion of which is as follows:
WHEREFORE, the judgment of the lower court insofar as it decrees the dismissal of the present petition for mandamus is hereby affirmed, without pronouncement as to costs (p. 50, rec.).

The facts of the case are as follows: On January 15, 1960, private respondents (as members of the Board of Directors of the defunct National Resettlement and Rehabilitation Administration created under Republic Act No. 1160, approved June 18, 1954 NARRA) approved the following resolution:
RESOLUTION NO. 13 (Series of 1960) RESOLVED, as it is hereby resolved, to appoint Mr. Bruno 0. Aparri, as General Manager of the National Resettlement and Rehabilitation Administration (NARRA) with all the rights, prerogatives and compensation appurtenant thereto to take effect on January 16, 1960); RESOLVED FURTHER, as it is hereby resolved, to inform the President of the Philippines of the above appointment of Mr. Aparri (p. 2, rec.).

Pursuant thereto, private respondent Remedies O. Fortich, in her capacity as Chairman of the NARRA Board, appointed petitioner Bruno O. Aparri as reflected in the following letter:
Manila, January 22, 1960 Mr. Bruno O. Aparri c/o NARRA, Manila SIR: You are hereby appointed as GENERAL MANAGER in the National Resettlement and Rehabilitation Administration (NARRA) with compensation at the rate of TWELVE THOUSAND (P12,000.00) PESOS per annum the appointment to take effect January 16,1960 . . . . REINSTATEMENT ... (p. 2, rec.).

The power of the Board of Directors of the NARRA to appoint the general manager is provided for in paragraph (2),Section 8, Republic Act No. 1160 (approved June 18, 1954), to wit:
Sec. 8. Powers and Duties of the Board of Directors. The Board of Directors shall have the following powers and duties: ... 2) To appoint and fix the term of office of General Manager ..., subject to the recommendation of the Office of Economic Coordination and the approval of the President of the Philippines, .... The Board, by a majority vote of all members, may, for cause, upon recommendation of the Office of Economic Coordination and with the approval of the President of the Philippines, suspend and/or remove the General Manager and/or the Assistant General Manager (p. 46, rec., emphasis supplied).

On March 15, 1962, the same Board of Directors approved the following resolution:
RESOLUTION NO. 24 (Series of 1962) WHEREAS, the Chairman of the Board has transmitted to the Board of Directors the desire of the Office of the President Malacanang, Manila, to fix the term of office of the incumbent General Manager up to the close of office hours on March 31, 1962, in accordance with the provision of Section 8, sub-section 2 of R.A. No. 1160; NOW, THEREFORE, BE IT RESOLVED, as it is hereby resolved, that the Board of Directors hereby fix, as it is hereby fixed, the term of office of the incumbent General Manager of the National Resettlement and Rehabilitation Administration (NARRA) to March 31, 1962 (pp. 6-7, rec., emphasis supplied).

Petitioner filed a petition for mandamus with preliminary injunction with the then Court of First Instance of Manila on March 29, 1962. The petition prayed to annul the resolution of the NARRA Board dated March 15, 1962, to command the Board to allow petitioner to continue in office as General Manager until he vacates said office in accordance with

law and to sentence the private respondents jointly and severally to pay the petitioner actual damages in the sum of P95,000.00, plus costs. On August 8, 1963, when the case was still pending decision in the lower court, Republic Act No. 3844, otherwise known as the Agricultural Land Reform Code, took effect. The said law abolished the NARRA (Sec. 73, R.A. 3844) and transferred its functions and powers to the Land Authority. On October 21, 1963, the then Court of First Instance of Manila rendered judgment, finding "that this case has become academic by reason of the approval of the Agricultural Land Reform Code (Republic Act No. 3844) and thereby dismissing the instant petition without pronouncement as to costs" (p. 5, rec.). On appeal to the then Court of Appeals, the appellate tribunal speaking through then Mr. Justice Antonio C. Lucero, affirmed the decision of the lower court. in dismissing the petition for mandamus. Pertinent provisions of the decision are as follows:
xxx xxx xxx In the light of the foregoing facts, it is evident that Bruno O. Aparri accepted the position of General Manager without fixed term and his appointment is, in essence, terminable at the pleasure of the appointing power which, in this case, is the Board of Directors. Where, as in the case at bar, the appointing officer, that is, the Board of Directors, had fixed the term of office of the incumbent Manager to end on March 31, 1962, the replacement of Bruno O. Aparri is not removal but by reason of the term of his office which is one of the recognized modes of terminating official relations. Considering that the term of office of the General Manager of the NARRA is not fixed by law nor has it been fixed by the Board of Directors at the time of his appointment although it had the power to do so, it is obvious that the term of office of herein petitioner Bruno O. Aparri expired on March 31, 1962 and his right to hold the said office was thereby extinguished. In other words, Bruno O. Aparri cessation from office invokes no removal but merely the expiration of the term of office which was within the power of the Board of Directors to fix. Hence, Bruno O. Aparri continues only for so long as the term of his office has not ended (Alba vs. Hon. Jose N. Evangelists, 100 Phil. 683) [Decision of the Court of Appeals, pp. 48-49, rec., emphasis supplied].

The motion for reconsideration by petitioner in the then Court of Appeals was denied on January 10, 1969. On January 20, 1969, the petitioner filed a petition for certiorari to review the decision of the then Court of Appeals dated September 24, 1968 (pp. 1-41, rec.). The same was initially denied for lack of merit in a resolution dated January 27, 1969 (p. 55, rec.); but on motion for reconsideration filed on February 11, 1969, the petition was given due course (p. 66, rec.). The only legal issue sought to be reviewed is whether or not Board Resolution No. 24 (series of 1962) was a removal or dismissal of petitioner without cause. WE affirm. WE hold that the term of office of the petitioner expired on March 31, 1962.

A public office is the right, authority, and duty created and conferred by law, by which for a given period, either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of the government, to be exercise by him for the benefit of the public ([Mechem Public Offices and Officers,] Sec. 1). The right to hold a public office under our political system is therefore not a natural right. It exists, when it exists at all only because and by virtue of some law expressly or impliedly creating and conferring it (Mechem Ibid., Sec. 64). There is no such thing as a vested interest or an estate in an office, or even an absolute right to hold office. Excepting constitutional offices which provide for special immunity as regards salary and tenure, no one can be said to have any vested right in an office or its salary (42 Am. Jur. 881). The National Resettlement and Rehabilitation Administration (NARRA) was created under Republic Act No. 1160 (approved June 18,1954), which provides that:
Sec. 2. NATIONAL RESETTLEMENT AND REHABILITATION ADMINISTRATION ... there is hereby created a corporation to be known as National Resettlement and Rehabilitation Administration hereafter referred to as "NARRA" to perform under the supervision and control of the President of the Philippines, through the Office of Economic Coordinator all the duties and functions of the Bureau of Lands as provided for in Commonwealth Act numbered Six Hundred and Ninety-one, as amended, and such other duties as are hereinafter specified in this Act. It shall be headed by a General Manager and an Assistant Manager who shall be appointed as hereinafter provided (emphasis supplied).

Paragraph 2, Section 8 of Republic Act 1160 expressly gives to the Board of Directors of the NARRA the power "to appoint and fix the term of office of the general manager ... subject to the recommendation of Economic Coordination and the approval of the President of the Philippines" (emphasis supplied). By "appointment" is meant the act of designation by the executive officer, board or body, to whom that power has been delegated, of the individual who is to exercise the functions of a given office (Mechem op. cit., Sec. 102). When the power of appointment is absolute, and the appointee has been determined upon, no further consent or approval is necessary, and the formal evidence of the appointment, the commission, may issue at once. Where, however, the assent or confirmationof some other officer or body is required, the Commission can issue or the appointment is complete only when such assent or condition is obtained (People vs. Bissell, 49 Cal. 407). To constitute an "appointment" to office, there must be some open, unequivocal act of appointment on the part of the appointing authority empowered to make it, and it may be said that an appointment to office is made and is complete when the last act required of the appointing authority has been performed (Molnar vs. City of Aurora, 348 N.E. 2d 262, 38 III App. 3d 580). In either case, the appointment becomes complete when the last act required of the appointing power is performed (State vs. Barbour, 53 Conn. 76, 55 Am. Rep. 65). The petitioner was appointed as general manager pursuant to Resolution No. 13 (series of 1960 approved on January 15, 1960) of the Board of Directors. A careful perusal

of the resolution points out the fact that the appointment is by itself incomplete because of the lack of approval of the President of the Philippines to such appointment. Thus, We note that Resolution No. 13 states:
xxx xxx xxx ... RESOLVED FURTHER, as it is hereby resolved, to inform the President of the Philippines of the above appointment of Mr. Aparri (p. 2, rec.).

Presumably, the Board of Directors of the NARRA expected that such appointment be given approval by the then President. Lacking such approval by the President as required by the law (par. 2, Sec. 8 of R.A. 1160), the appointment of petitioner was not complete. The petitioner can, at best, be classified as a de facto officer because he assumed office "under color of a known appointment or election, void because the officer was not eligible or because there was a want of power in the electing body, or by reasons of some defect or irregularity in its exercise, such ineligibility, want of power, or defect being unknown to the public" (State vs. Carroll, 38 Conn. 449, 9Am. Rep. 409). However, such appointment was made complete upon approval of Resolution No. 24 (series of 1962-approved March 15, 1962) wherein the President submitted to the Board his "desire" to fix the term of office of the petitioner up to the close of office hours on March 31, 1962. The questioned resolution corrected whatever requisite lacking in the earlier Resolution No. 13 of the respondent Board. Resolution No. 24, approved by the respondent Board and pursuant to "the desire of the President" legally fixed the term of office of petitioner as mandated by paragraph 2, Section 8 of Republic Act 1160. The word "term" in a legal sense means a fixed and definite period of time which the law describes that an officer may hold an office (Sueppel vs. City Council of Iowa City, 136 N.W. 2D 523, quoting 67 CJS OFFICERS, secs. 42, 54[1]). According to Mochem, the term of office is the period during which an office may be held. Upon the expiration of the officer's term, unless he is authorized by law to hold over, his rights, duties and authority as a pubic officer must ipso facto cease (Mechem, op. cit., Secs. 396-397). In the law on Public Officers, the most natural and frequent method by which a public officer ceases to be such is by the expiration of the term for which he was elected or appointed. The question of when this event has occurred depends upon a number of considerations, the most prominent of which, perhaps, are whether he was originally elected or appointed for a definite term or for a term dependent upon some act or event ... (Mechem op. cit., Sec. 384). It is necessary in each case to interpret the word "term" with the purview of statutes so as to effectuate the statutory scheme pertaining to the office under examination (Barber vs. Blue, 417 P.2D 401, 51 Cal. Rptr. 865, 65 C.2d N5). In the case at bar, the term of office is not fixed by law. However, the power to fix the term is vested in the Board of Directors subject to the recommendation of the Office of Economic Coordination and the approval of the President of the Philippines. Resolution No. 24 (series of 1962) speaks of no removal but an expiration of the term of office of the petitioner. The statute is undeniably clear. It is the rule in statutory construction that if the words and phrase of a

statute are not obscure or ambiguous, its meaning and the intention of the legislature must be determined from the language employed, and, where there is no ambiguity in the words, there is no room for construction (Black on Interpretation of Laws, Sec. 51). The courts may not speculate as to the probable intent of the legislature apart from the words (Hondoras vs. Soto, 8 Am. St., Rep. 744). The reason for the rule is that the legislature must be presumed to know the meaning of words, to have used words advisedly and to have expressed its intent by the use of such words as are found in the statute (50 Am. Jur. p. 212). Removal entails the ouster of an incumbent before the expiration of his term (Manalang vs. Quitoriano, 50 O.G. 2515). The petitioner in this case was not removed before the expiration of his term. Rather, his right to hold the office ceased by the expiration on March 31, 1962 of his term to hold such office. WHEREFORE, THE DECISION APPEALED FROM IS HEREBY AFFIRMED. WITHOUT COSTS. SO ORDERED. Concepcion, Jr., Guerrero, Abad Santos, De Castro and Escolin, JJ., concur. Aquino, J., concur in the result.

The Lawphil Project - Arellano Law Foundation

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. Nos. 95275-76 July 23, 1991 SIXTO DE LA VICTORIA, petitioner, vs. COMMISSION ON ELECTIONS, HEIRS OF GENOVEVA S. MEDINA represented by FAUSTINO MESINA, JR., JUAN ALAO and VICTOR S. MESINA, respondents. Constante P. Pimentel, et al. for petitioner. Regulo M. Bantasan for the Intervenor Aquilino Cantiga, Jr. Sixto, Brillantes, Jr. for Heirs of Genoveva S. Mesina. Evergisto B. Escalon for respondents Juan Alao and Victor S. Mesina.

GRIO-AQUINO, J.:p This petition for certiorari with preliminary injunction and/or restraining order assails the order of the Commission on Elections En Banc (COMELEC, for short) which allowed the substitution of the heirs of a deceased candidate as protestee in the election protest filed by her rival for the office of municipal mayor of Albuera, Leyte, in the local elections on February 1, 1988, and allowed the same heirs to appeal the decision of the Regional Trial Court declaring her rival (the protestant and herein petitioner), as the actual winner in that election. The contenders for the mayorship of Albuera, Leyte in the special local elections held on February 1, 1988 were petitioner Sixto De la Victoria who obtained 5,093 votes, the late Genoveva S. Mesina who obtained 5,103 votes, and Loly C. Fian who garnered 982 votes. On February 3, 1988, the Municipal Board of Canvassers proclaimed Mesina as the duly elected municipal mayor of Albuera, Leyte. Elected and proclaimed vicemayor was her running-mate, Aquilino Cantiga, Jr. In due time, the defeated mayoral candidate, De la Victoria, filed two pre-proclamation cases (SPC Nos. 88-560 and 88-614) in the COMELEC but even while they were still pending in the commission, he filed on October 21, 1988 in the Regional Trial Court (RTC), Branch 14 in Baybay, Leyte, an election protest Ex Abundante Cautela against Mesina (docketed as Election Protest No. B-44) with claims for damages, attorney's fees, and costs. Mesina filed an Answer with counterclaims for damages and attorney's fees.

On July 22, 1989, Mesina died and was substituted as protestee by her Vice-Mayor, Aquilino Cantiga, Jr., who assumed the mayorship by operation of law. Neither Mesina's heirs (the private respondents herein), nor her counsel informed the trial court about her death. On May 16, 1990, De la Victoria withdrew from the COMELEC En Banc, his preproclamation complaints (SPC Cases Nos. 88-560 and 88-614). The COMELEC granted his motion. On June 18, 1990, the incumbent Mayor, Aquilino Cantiga, Jr., filed in the Regional Trial Court (RTC) a verified "Petition to Intervene" in the election protest of De la Victoria. On June 20, 1990, De la Victoria filed a "Manifestation/Motion" waiving his claim for damages and costs against the deceased protestee, Mesina. The trial court granted the motion (p. 389, Rollo). On June 22, 1990, counsel for Mesina filed a Notice of Death and Motion for Substitution of the deceased protestee by her heirs, and requested that his motion be set for hearing on July 2, 1990. De la Victoria opposed the motion for substitution on the ground that the heirs of Mesina are not the "real party in interest" and that since he (De la Victoria) had waived his claim for damages against the deceased, her heirs have no more right to intervene in the case or have been "erased from the picture altogether" (Lomugdang vs. Javier, 21 SCRA 402 and Vda. de Mesa vs. Mencias, 18 SCRA 533). On July 2, 1990, the trial court noted the Motion for Substitution filed by the heirs of Mesina and ruled that De la Victoria's waiver of his claim for damages against the said protestee rendered the Motion for Substitution without basis in law, or moot and academic. On July 17, 1990, the trial court promulgated a decision in the Election Protest No. B44, declaring the protestant, De la Victoria, as the duly elected Mayor of Albuera, Leyte, by a margin of 134 votes over the deceased protestee, Genoveva S. Mesina. Two days later, on July 19, 1990, the heirs of Mesina appealed to the COMELEC by a petition for certiorari and prohibition with preliminary injunction to restrain the trial court from rendering a decision in Election Protest No. B-44 or conducting further proceedings therein. On July 20, 1990, the heirs of Mesina filed in the trial court a Notice of Appeal. De la Victoria filed an "Urgent Motion to Disregard Notice of Appeal" on the ground that the heirs had no standing in the case as they failed to appeal the July 2, 1990 Order of the trial court denying their motion for substitution. The trial court in its Order of July 23, 1990, denied the Notice of Appeal and ordered its expulsion from the record of the case. It held that the intervenor, Vice-Mayor Cantiga, who succeeded the deceased

protestee by operation of law, not the "heirs" of the deceased, is the "real party in interest" in the continuation of the election protest after the demise of the protestee. Moreover, upon the waiver by De la Victoria of his claim for damages against Mesina, the latter's heirs had no more legal interest to defend in her behalf. On July 24, 1990, De la Victoria filed a motion for execution of the trial court's decision. It was granted by the court on July 25, 1990. Promptly, on the same day, De la Victoria was sworn into office as the duly elected Mayor of Albuera. As earlier mentioned, the heirs of Mesina appealed that decision to the COMELEC by a petition for certiorari and prohibition with a prayer for the issuance of a writ of preliminary injunction (SPR No. 9-90). In his Comment on the petition, De la Victoria adverted to the decision dated July 17, 1990 of the trial court which became final and executory when no appeal was taken therefrom. On the same date, the COMELEC denied the heirs' application for a temporary restraining order (TRO), but set the case for hearing before the COMELEC En Banc for "preliminary determination of the sufficiency of the allegations in the main issue raised by said respondents-heirs." De la Victoria opposed the petition. On August 6, 1990, the heirs filed in the COMELEC another petition for certiorari and mandamus (SPR No. 11-90), praying that the execution of the decision of the trial court in Election Protest No. B-44 be stopped. On August 8, 1990, De la Victoria assumed office as Mayor of Albuera, Leyte. On August 13, 1990, the COMELEC issued a status quo Order directing De la Victoria to answer the petition in SPR No. 11-90, and setting the petition for preliminary injunction for hearing on August 23, 1990. On September 27, 1990, the COMELEC set aside the trial court's Order dated July 2, 1990 denying the motion for substitution of the heirs of the deceased protestee, and the Order dated July 23, 1990 which denied due course to the Notice of Appeal of the heirs from its decision dated July 17, 1990. It declared the writ of execution null and void and ordered the elevation to it of the records of the case pursuant to Rule 22 of the COMELEC Rules of Procedure (on appeal from election protest decided by trial courts of general jurisdiction). De la Victoria has come to us for relief through this petition for certiorari with prayer for the issuance of a temporary restraining order (TRO) where the main issues raised are: (1) whether the heirs of the deceased protestee in an election protest may be considered as real party-in-interest even if the vice-mayor has been allowed to intervene and the protestant had waived his claim for damages and costs in the

proceedings; and (2) whether said heirs may appeal the decision in the election protest (EPC No. B-44). After careful deliberation, the Court is persuaded that the answer to both questions is no. The late Genoveva Mesina's claim to the contested office was not in any sense a transmissible right that devolved upon her surviving spouse and her children (herein private respondents) after her death. "Public office is personal to the incumbent and is not a property which passes to his heirs" (Santos vs. Secretary of Labor, 22 SCRA 848). Private respondents' only interest in the outcome of the case is limited to no more than their interest in defending her against the protestant's claim for damages and costs (which the protestant, herein petitioner, has already waived). They may no longer prosecute her own counter-claim for damages against the protestant for that was extinguished when death terminated her light to occupy the contested office of mayor of Albuera, Leyte. In the case of Vda. de Mesa vs. Mencias, 18 SCRA 533, 545, we ruled:
The same cannot, however, be said of the protestee's widow or of the local Liberal Party chapter of Muntinlupa. The protestee's claim to the contested office is not in any sense a right transmitted to his widow or heirs. Said widow's remaining interest in the outcome of the case is limited to no more than the possible award of costs against the deceased protestee. Besides not being such an interest as would justify her substitution for her deceased husband as an indispensable legal representative, the right to such an award if eventually made has already been waived by protestant Argana. This effectively withdraws the widow from the picture altogether. Much less has the local Liberal Party Chapter any claim to substitution. Not being duly incorporated as a juridical person, it can have no personality to sue or be sued as such. And while it conceivably may derive some indirect benefit consequent to the resolution of the contest in favor of the deceased protestee, neither the chapter itself nor the officers thereof would become entitled thereby to any right to the contested office in case of a favorable judgment, nor, for that matter, do they stand to sustain any direct prejudice in case of an adverse one. No basis therefore exist upon which to predicate their claim to substitution. (Emphasis supplied).

This ruling was not a mere obiter as the COMELEC erroneously supposed. Vice Mayor Aquilino Cantiga's accession, by operation of law, to the position of Municipal Mayor upon the death of Mesina on July 22, 1989, automatically made him the real party-in-interest in the election contest for his right to hold the office of municipal mayor is in jeopardy of being lost should De la Victoria win Ms protest. Thus did this Court hold in Lomugdang vs. Javier, 21 SCRA 403:
The vice-mayor elect has the status of a real party-in-interest in the continuation of the proceedings and is entitled to intervene therein. For if the protest succeeds and the protestee is unseated, the vice-mayor succeeds to the office of mayor that becomes vacant if the one duly elected cannot assume the post.

This ruling was reiterated in Unda vs. COMELEC (G.R. No. 94090, October 19, 1990):

Now under the Local Government Code, the vice-mayor stands next in line of succession to the mayor in case of a permanent vacancy in the latter's position. Upon the death of the protestee mayor in the case at bar, petitioner, as then incumbent vice-mayor, succeeded by operation of law to the vacated office and is ordinarily entitled to occupy the same for the unexpired term thereof. The outcome of the election contest necessarily and primarily bears upon his right to his present position and he is the person directly concerned in the fair and regular conduct of the election in order that the true will of the electorate will be upheld. His status as a real party-in-interest in the continuation of said case cannot thus be disputed. (Emphasis supplied.)

On the procedural aspects of the case, we find the following observations of the Solicitor General in his Consolidated Comment dated January 8, 1991, to be well taken:
. . . respondent COMELEC acted with grave abuse of discretion in giving due course to the [private respondents'] petitions for certiorari filed in SPR Nos. 9-90 and 11-90 filed on August 6, 1990 to set aside the final and executory decision of the trial court promulgated on July 18, 1990, far beyond the 5-day period allowed by [Section 22, Rule 35] Comelec Rules of Procedure, (p. 410, Rollo.) Respondent COMELEC further gravely abused its discretion by issuing a "permanent" and final injunction to prevent the execution of said final and executory Decision dated July 17, 1990 of the trial court, without the required bond contrary to its own Rule 30, Section 4, COMELEC Rules of Procedure. (p. 411, Rollo.)

However, these issues have been rendered moot and academic by the COMELEC's order of January 23, 1991 dismissing the "reinstated" appeal of the private respondents (p. 447, Rollo), for failure to file their Appellant's Brief on December 9, 1990, the last day for filing the same, their Motion for Extension of Time to File said Appellant's Brief having been previously denied by the COMELEC for being a prohibited pleading under Section 1(c) of Rule 13 of the COMELEC Rules of Procedure, in relation to Section 9(b) Rule 22 of the COMELEC Rules of Procedure, The COMELEC's dismissal order reads:
Consequently, the dismissal of the herein appeal case pursuant to the Comelec Rules of Procedure renders the decision of the Regional Trial Court of Leyte, Branch XIV dated July 17, 1990, as FINAL AND EXECUTORY. (pp. 459-460, Rollo.)

On January 28, 1991, petitioner De la Victoria reassumed the office of Mayor of Albuera, Leyte (p. 460, Rollo). WHEREFORE, finding merit in the petition for certiorari, the same is hereby GRANTED, with costs against private respondents. The proclamation of Sixto de la Victoria as mayor of Albuera, Leyte, is upheld. SO ORDERED. Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Padilla, Bidin, Sarmiento, Medialdea, Regalado and Davide, Jr., JJ., concur. Gancayco, J., is on leave.

Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. No. 124374 December 15, 1999 ISMAEL A. MATHAY JR., in his capacity as MAYOR OF QUEZON CITY, petitioner, vs. COURT OF APPEALS, CIVIL SERVICE COMMISSION, EDUARDO A. TAN, LOURDES M. DE GUZMAN, MANUEL CHUA, ANSELMO MATEO, CHRISTOPHER SANTOS, BUENAVENTURA PUNAY, ENRICO BANDILLA, FELINO CAMACHO, DANTE E. DEOQUINO, JAIME P. URCIA, JESUS B. REGONDOLA, ROMUALDO LIBERATO, CESAR FRANCISCO, WILLIAM PANTI, JR., MICHAEL A. JACINTO and CESAR DACIO, respondents. G.R. No. 126354 December 15, 1999 CIVIL SERVICE COMMISSION, petitioner, vs. THE HON. COURT OF APPEALS and ISMAEL A. MATHAY, JR., respondents. G.R. No. 126366 December 15, 1999 ISMAEL A. MATHAY, JR., in his capacity as MAYOR OF QUEZON CITY, petitioner, vs. COURT OF APPEALS, CIVIL SERVICE COMMISSION and SANDY C. MARQUEZ, respondents.

YNARES-SANTIAGO, J.: Before this Court are three, consolidated petitions 1 filed under Rule 45 of the Revised Rules of Court. The facts behind the consolidated petitions are undisputed. During his term as Mayor of Quezon City, Mr. Brigido R. Simon appointed private respondents 2 to positions in the Civil Service Unit ("CSU") of the local government of Quezon City. Civil Service Units were created pursuant to Presidential Decree No. 51 which was allegedly signed into law on November 15 or 16, 1972.

On February 23, 1990, the Secretary of Justice rendered Opinion No. 33, stating that Presidential Decree No. 51 was never published in the Official Gazette. Therefore, conformably with our ruling in Tanada vs. Tuvera 3 the presidential decree is deemed never "in force or effect and therefore cannot at present, be a basis for establishment of the CSUs . . . ." 4 On June 4, 1990, the Civil Service Commission issued Memorandum Circular No. 30, directing all Civil Service Regional or Field Offices to recall, revoke and disapprove within one year from issuance of the said Memorandum, all appointments in CSUs created pursuant to Presidential Decree No. 51 on the ground that the same never became law. Among those affected by the revocation of appointments are private respondents in these three petitions. For Quezon City CSU employees, the effects of the circular were temporarily cushioned by the enactment of City Ordinance No. NC-140, Series of 1990, which established the Department of Public Order and Safety ("DPOS"). At the heart of these petitions is Section 3 of the Ordinance which provides:
Sec. 3. The present personnel of the Civil Security Unit, Traffic Management Unit, Anti-Squatting and Surveillance and Enforcement Team, and Disaster Coordinating Council are hereby absorbed into the department of public order and safety established under Section one hereof to be given appropriate position titles without reduction in salary, seniority rights and other benefits. Funds provided for in the 1990 Budget for the absorbed offices shall be used as the initial budgetary allocation of the Department. (Emphasis ours).

Despite the provision on absorption, the regular and permanent positions in the DPOS were not filled due to lack of funds for the new DPOS and the insufficiency of regular and permanent positions created. Mayor Brigido R. Simon remedied the situation by offering private respondents contractual appointments for the period of June 5, 1991 to December 31, 1991. The appointments were renewed by Mayor Simon for the period of January 1, 1992 to June 30, 1992. On May 11, 1992, petitioner Ismael A. Mathay, Jr. was elected Mayor of Quezon City. On July 1, 1992, Mayor Mathay again renewed the contractual appointments of all private respondents effective July 1 to July 31, 1992. Upon their expiry, these appointments, however, were no longer renewed. The non-renewal by Quezon City Mayor Ismael A. Mathay, Jr. of private respondents' appointments became the seed of discontent from which these three consolidated petitions grew. We discuss the merits of the petitions of Mayor Ismael A. Mathay, Jr. jointly.

G.R. No. 124374 and G.R. No. 126366 After the non-renewal of their appointments, private respondents in these two petitions appealed to the Civil Service Commission. The CSC issued separate resolutions holding that the reappointment of private respondents to the DPOS was automatic, pursuant to the provision on absorption in Quezon City Ordinance No. NC-140, Series of 1990, 5 and ordering their reinstatement to their former positions in the DPOS. 6 Petitioner brought petitions for certiorari to this Court, 7 to annul the resolutions but, in accordance with Revised Administrative Circular No. 1-95, the petition were referred to the Court of Appeals. As stated, the Court of Appeals dismissed the petitions for certiorari. In the instant petition for review, petitioner asserts that the Court of Appeals erred when it ruled that respondent Civil Service Commission has the authority to direct him to "reinstate" private respondents in the DPOS. We agree with petitioner. The law applicable is B.P. 337 or the old Local Government Code and not the Local Government Code of 1992 which became effective only on January 1, 1992, when the material events in this case transpired. Applying the said law, we find that the Civil Service Commission erred when it applied the directives of Ordinance NC-140 and in so doing ordered petitioner to "reinstate" private respondents to positions in the DPOS. Section 3 of the said Ordinance is invalid for being inconsistent with B.P. 337. We note that Section 3 of the questioned Ordinance directs the absorption of the personnel of the defunct CSU into the new DPOS. The Ordinance refers to personnel and not to positions. Hence, the city council or sanggunian, through the Ordinance, is in effect dictating who shall occupy the newly created DPOS positions. However, a review of the provisions of B.P. 337 shows that the power to appoint rests exclusively with the local chief executive and thus cannot be usurped by the city council or sanggunian through the simple expedient of enacting ordinances that provide for the "absorption" of specific persons to certain positions. In upholding the provisions of the Ordinance on the automatic absorption of the personnel of the CSU into the DPOS without allowance for the exercise of discretion on the part of the City Mayor, the Court of Appeals makes the sweeping statement that "the doctrine of separation of powers is not applicable to local governments." 8 We are unable to agree. The powers of the city council and the city mayor are expressly enumerated separately and delineated by B.P. 337. The provisions of B.P. 337 are clear. As stated above, the power to appoint is vested in the local chief executive. 9 The power of the city council or sanggunian, on the other hand, is limited to creating, consolidating and reorganizing city

officers and positions supported by local funds. The city council has no power to appoint. This is clear from Section 177 of B.P. 337 which lists the powers of the sanggunian. The power to appoint is not one of them. Expressio inius est exclusio alterius. 10 Had Congress intended to grant the power to appoint to both the city council and the local chief executive, it would have said so in no uncertain terms. By ordering petitioner to "reinstate" private respondents pursuant to Section 3 of the Ordinance, the Civil Service Commission substituted its own judgment for that of the appointing power. This cannot be done. In a long line of cases, 11 we have consistently ruled that the Civil Service Commission's power is limited to approving or disapproving an appointment. It does not have the authority to direct that an appointment of a specific individual be made. Once the Civil Service Commission attests whether the person chosen to fill a vacant position is eligible, its role in the appointment process necessarily ends. The Civil Service Commission cannot encroach upon the discretion vested in the appointing authority. The Civil Service Commission argues that it is not substituting its judgment for that of the appointing power and that it is merely implementing Section 3 of Ordinance NC-140. The Ordinance refers to the "personnel of the CSU", the identities of which could not be mistaken. The resolutions of the Civil Service Commission likewise call for the reinstatement of named individuals. There being no issue as to who are to sit in the newly created DPOS, there is therefore no room left for the exercise of discretion. In Farinas vs. Barba, 12 we held that the appointing authority is not bound to appoint anyone recommended by the sanggunian concerned, since the power of appointment is a discretionary power. When the Civil Service Commission ordered the reinstatement of private respondents, it technically issued a new appointment. 13 This task, i.e. of appointment, is essentially discretionary and cannot be controlled even by the courts as long as it is properly and not arbitrarily exercised by the appointing authority. In Apurillo vs. Civil Service Commission, we held that "appointment is essentially a discretionary power and must be performed by the officer in which it is vested."
14

The above premises considered, we rule that the Civil Service Commission has no power to order petitioner Ismael A. Mathay, Jr., to reinstate private respondents. Petitioner similarly assails as error the Court of Appeals' ruling that private respondents should be automatically absorbed in the DPOS pursuant to Section 3 of the Ordinance.

In its decision of March 21, 1996 the Court of Appeals held:

It is clear however, that Ordinance No. NC-140, absorbing the "present personnel of the Civil Security Agent Unit" in the DPOS was earlier enacted, particularly on March 27, 1990, thus, private respondents were still holders of de jure appointments as permanent regular employees at the time, and therefore, by operation of said Ordinance private respondents were automatically absorbed in the DPOS effectively as of March 27, 1990. 15 (Emphasis ours.)

The decision is based on the wrong premise. Even assuming the validity of Section 3 of the Ordinance, the absorption contemplated therein is not possible. Since the CSU never legally came into existence, the private respondents never held permanent positions. Accordingly, as petitioner correctly points out, 16 the private respondents' appointments in the defunct CSU
were invalid ab initio. Their seniority and permanent status did not arise since they have no valid appointment. For then to enter the Civil Service after the revocation and cancellation of their invalid appointment, they have to be extended an original appointment, subject again to the attesting power of the Civil Service Commission. Being then not members of the Civil Service as of June 4, 1991, they cannot be automatically absorbed/reappointed/appointed/reinstated into the newly created DPOS. (Emphasis ours).

It is axiomatic that the right to hold public office is not a natural right. The right exists only by virtue of a law expressly or impliedly creating and conferring it. 17 Since Presidential Decree 51 creating the CSU never became law, it could not be a source of rights. Neither could it impose duties. It could not afford any protection. It did not create an office. It is as inoperative as though it was never passed. In Debulgado vs. Civil Service Commission 18 we held that "a void appointment cannot give rise to security of tenure on the part of the holder of the appointment." While the Court of Appeals was correct when it stated that "the abolition of an office does not mean the invalidity of appointments thereto," 19 this cannot apply to the case at bar. In this case, the CSU was not abolished. It simply did not come into existence as the Presidential Decree creating it never became law. At the most, private respondents held temporary and contractual appointments. The non-renewal of these appointments cannot therefore be taken against petitioner. In Romualdez III vs. Civil Service Commission 20 we treated temporary appointments as follows:
The acceptance by the petitioner of a temporary appointment resulted in the termination of official relationship with his former permanent position. When the

temporary appointment was not renewed, the petitioner had no cause to demand reinstatement thereto. (Emphasis ours.)

Another argument against the concept of automatic absorption is the physical and legal impossibility given the number of available positions in the DPOS and the number of personnel to be absorbed. 21 We note that Section 1 of Ordinance NC-140 provides:
There is hereby established in the Quezon City Government the Department of Public Order and Safety whose organization, structure, duties, functions and responsibilities are as provided or defined in the attached supporting documents consisting of eighteen (18) pages which are made integral parts of this Ordinance.

A review of the supporting documents shows that Ordinance No. NC-140 allowed only two slots for the position of Security Officer II with a monthly salary of P4,418.00 and four slots for the position of Security Agent with a monthly salary of P3,102.00. The limited number of slots provided in the Ordinance renders automatic absorption unattainable, considering that in the defunct CSU there are twenty Security Officers with a monthly salary of P4,418.00 and six Security Agents with a monthly salary of P3,102.00. Clearly, the positions created in the DPOS are not sufficient to accommodate the personnel of the defunct CSU, making automatic absorption impossible. Considering that private respondents did not legally hold valid positions in the CSU, for lack of a law creating it, or the DPOS, for lack of a permanent appointment to the said agency, it becomes unnecessary to discuss whether their acceptance of the contractual appointments constitutes an "abandonment" or "waiver" of such positions. It escapes us how one can "relinquish" or "renounce" a right one never possessed. A person waiving must actually have the right which he is renouncing. G.R. 126354 In this case, petitioner, Civil Service Commission seeks the reversal of the decision of the Court of Appeals of July 5, 1996, which overturned CSC Resolution Nos. 955040 and 932732 and held that the Civil Service Commission has no authority to compel the mayor of Quezon City to "reinstate" Jovito C. Labajo to the DPOS. The standing of petitioner Civil Service Commission to bring this present appeal is questionable. We note that the person adversely affected by the Court of Appeals decision, Jovito C. Labajo has opted not to appeal. Basic is the rule that "every action must be prosecuted or defended in the name of the real party in interest." 22 A real party in interest is the party who stands to

be benefited or injured by the judgment in the suit, or the party entitled to the avails of the suit. In Ralla vs. Ralla we defined interest as "material interest, an interest in issue and to be affected by the decree, as distinguished from mere interest in the question involved, or mere incidental interest." 23 As a general rule, one having no right or interest to protect cannot invoke the jurisdiction of the court as a party-plaintiff in an action. In the case at bar, it is evident that Jovito C. Labajo, not the Civil Service Commission, is the real party in interest. It is Jovito C. Labajo who will be benefited or injured by his reinstatement or non-reinstatement. We are aware of our pronouncements in the recent case of Civil Service Commission v. Pedro Dacoycoy 24 which overturned our rulings in Paredes vs. Civil Service Commission 25 Mendez vs. Civil Service Commission 26 and Magpale vs. Civil Service Commission. 27 In Dacoycoy, we affirmed the right of the Civil Service Commission to bring an appeal as the aggrieved party affected by a ruling which may seriously prejudice the civil service system. The aforementioned case, however, is different from the case at bar. Dacoycoy was an administrative case involving nepotism whose deleterious effect on government cannot be over emphasized. The subject of the present case, on the other hand, is "reinstatement." We fail to see how the present petition, involving as it does the reinstatement or non-reinstatement of one obviously reluctant to litigate, can impair the effectiveness of government. Accordingly, the ruling in Dacoycoy does not apply. To be sure, when the resolutions of the Civil Service Commission were brought before the Court of Appeals, the Civil Service Commission was included only as a nominal party. As a quasi-judical body, the Civil Service Commission can be likened to a judge who should "detach himself from cases where his decision is appealed to a higher court for review." 28 In instituting G.R. No. 126354, the Civil Service Commission dangerously departed from its role as adjudicator and became an advocate. Its mandated functions is to "hear and decide administrative cases instituted by or brought before it directly or on appeal, including contested appointments and to review decisions and actions of its offices and agencies," 29 not to litigate. Therefore, we rule that the Civil Service Commission has no legal standing to prosecute G.R. No. 126354.

WHEREFORE, the petitions of Ismael A. Mathay in G.R. No. 124374 and G.R. No. 126366 are GRANTED and the decisions of the Court of Appeals dated March 21, 1996 and January 15, 1996 are REVERSED and SET ASIDE. The petition of the Civil Service Commission in G.R. No. 126354 is DISMISSED for lack of legal standing to sue. The assailed decision of the respondent Court of Appeals dated July 5, 1996 is AFFIRMED. No costs. SO ORDERED. Davide, Jr., C. J., Bellosillo, Puno, Kapunan, Mendoza, Panganiban, Quisumbing, Purisima, Pardo, Buena, Gonzaga-Reyes and De Leon, Jr., JJ., concur. Melo and Vitug, JJ., in the result. Footnotes
1 In G.R. No. 124374, petitioner Mayor Mathay questions the decision of the Court of Appeals which upheld Resolution No. 95-3003 dated April 25, 1995 of the Civil Service Commission and ordered the reinstatement of private respondents to their former positions at the Department of Public Order and Safety ("DPOS") under permanent status or to comparable positions in the said agency. In G.R. No, 126354, petitioner Civil Service Commission assails the decision of the Court of Appeals which annulled and set aside its Resolution Nos. 955040 and 932732. In G.R. No, 126366, the assailed decision of the 15th Division of the Court of Appeals found no grave abuse of discretion amounting to lack or excess jurisdiction on the part of public respondent Civil Service Commission when it issued Resolution Nos. 92-1974 and 94-0902 ordering petitioner Ismael A. Mathay to reinstate private respondent Sandy Marquez to a position in the DPOS without dimunition in salary or position. 2 In G.R. No. 124374 Private respondents are Eduardo A. Tan, Lourdes M. de Guzman, Manuel Chua, Anselmo Mateo, Christopher Santos, Buenaventura Punay, Enrico Bandilla, Felino Camacho, Dante E. Deoquino, Jaime P. Urcia, Jesus B. Regondola, Romualdo Liberato, Cesar Franciso, William Panti Jr., Michael A. Jacinto and Cesar Dacio. In G.R. No. 126366 private respondent is Sandy Marquez. In G.R. No. 126354 there is no private respondent (Jovito C. Labajo did not appeal from the order of the Court of Appeals). 3 148 SCRA 446 (1986). 4 Opinion No. 33 of the Secretary of Justice, February 1991. 5 CSC Resolution No. 92-1974 (G.R. No. 126366).

6 CSC Resolution No. 95-3003 (G.R. Jo. 124374). 7 G.R. Nos. 114320 and 120442. 8 Page 8 of the Fifteenth Division of the Court of Appeals Decision dated January 15, 1996 citing Sinco. Political Law, 1949 ed. pp. 154-155 citing State vs. City of Maulcato, 136 N.W. 164, 41 L.R.A.N.S. 111; People vs. Provinces 35 Cal. 520. 9 Sec. 1719 of B.P. 337 provides that, "the city mayor shall . . . appoint in accordance with Civil Service law, rules and regulations all officers and employees of the city, whose appointments are not otherwise provided in this Code." 10 The express mention of one thing in a law will, as a general rue, mean the exclusion of others not expressly mentioned. This rule as a guide to probable legislative intent is based upon rules of logic and the natural workings of the human mind (Tavora vs. Gavina, 79 Phil. 421). 11 Orbos vs. Civil Service Commission, 189 SCRA 459 (1990); Villanueva vs. Balallo, 9 SCRA 407 (1963); Santos vs. Chito, 25 SCRA 343 (1968); Said Benzar Ali vs. Teehankee, 46 SCRA 728 (1972); Luego vs. Civil Service Commission, 143 SCRA 327 (1986); Central Bank vs. Civil Service Commission, 171 SCRA 741 (1989). 12 256 SCRA 396 (1996). 13 Gloria vs. Judge de Guzman, G.R. No. 116183, October 6, 1995. 14 227 SCRA 320 (1994). 15 Rollo (G.R. 124374), p. 47. 16 Rollo (G.R. 12633), p. 32. 17 Aparri vs. Court of Appeals, 127 SCRA 234 (1984). 18 263 SCRA 184 (1996). 19 Rollo (G.R. 126366), p. 21. 20 197 SCRA 168 (1991). 21 The defunct CSU consisted of 64 positions, to wit: Number of Positions Title of Position Monthly Salary 1 Office Head P12,650.00 1 Assistant Dept. Head III P11,385.00 2 Security Officer IV P8,250.00 20 Security Officer II P4,418.00

2 Security Agent II P3,102.00 9 Security Agent I P2,752.00 24 Security Guard II P2,355.00 1 Clerk III P2,473.00 2 Clerk II P2,250.00 1 Driver P2,250.00 1 Utility Worker P2,000.00 64 Positions While the Intelligence and Security Division of the DPOS created to replace the defunct CSU (p. 1 of Ordinance NC-130) is composed of the following positions: Number of Position Title of Position Monthly Salary 1 Chief, Intelligence & Security Officer P10,135.00 1 Asst. Chief Intelligence & Security Officer P8,250.00 1 Security Officer III P5,670.00 1 Special Police Area Supervisor P5,670.00 1 Security Officer II P4,418.00 1 Asst. Spl. Police Area Sv P4,418.00 4 Security Agent II P3,102.00 60 Security Agent I P2,752.00 1 Clerk III P2,473.00 10 Special Police Corporal P2,473.00 1 Clerk II P2,250.00

200 Special Policemen P2,250.00 282 Positions 22 Rule 3, Section 2, 1997 Rules on Civil Procedure. 23 199 SCRA 497 (1991). 24 G.R. No. 135805, April 29, 1999. 25 192 SCRA 84 (1990). 26 204 SCRA 965 (1991). 27 215 SCRA 389 (1992). 28 Judge Calderon vs. Solicitor General, 215 SCRA 876 (1992). 29 Chapter 3, Section 12 (11). The Revised Administrative Code of 1987 on the Civil Service Commission.

The Lawphil Project - Arellano Law Foundation

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION

G.R. No. 110544 October 17, 1995 REYNALDO V. TUANDA, Mayor of the Municipality of Jimalalud, Negros Oriental, HERMINIGILDO FABURADA, (former Vice-Mayor), SANTOS A. VILLANUEVA, Incumbent Member of the Sangguniang Bayan, MANUEL LIM, NICANOR R. AGOSTO, ERENIETA K. MENDOZA MAXIMINO A. VIERNES, HACUBINA V. SERILLO, ILUMINADO D. ESTRELLANES, and FORMER MEMBERS OF THE SANGGUNIANG BAYAN OF JIMALALUD, NEGROS ORIENTAL, petitioners, vs. THE HONORABLE SANDIGANBAYAN, (THIRD DIVISION), BARTOLOME BINAOHAN and DELIA ESTRELLANES, respondents.

KAPUNAN, J.: Petitioners institute this special civil action for certiorari and prohibition under Rule 65 of the Revised Rules of Court to set aside the resolution of the Sandiganbayan dated 17 February 1992 and its orders dated 19 August 1992 and 13 May 1993 in Criminal Case No. 16936 entitled "People of the Philippines versus Reynaldo Tuanda, et al." denying petitioners' motion for suspension of their arraignment. The present controversy arose from the following antecedents: On 9 February 1989, private respondents Delia Estrellanes and Bartolome Binaohan were designated as industrial labor sectoral representative and agricultural labor sectoral representative respectively, for the Sangguniang Bayan of Jimalalud, Province of Negros Oriental by then Secretary Luis T. Santos of the Department of Local Government. Private respondents Binaohan and Estrellanes took their oath of office on 16 February 1989 and 17 February 1989, respectively. Subsequently, petitioners filed an undated petition with the Office of the President for review and recall of said designations. The latter, however, in a letter dated 20 March 1989, denied the petition and enjoined Mayor Reynaldo Tuanda to recognize private respondents as sectoral representatives. On 4 May 1990, private respondents filed a petition for mandamus with the Regional Trial Court of Negros Oriental, Branch 35, docketed as Special Civil Action No. 9661, for recognition as members of the Sangguniang Bayan. It was dismissed on 23 July 1991.

Thereafter, on 20 June 1991, petitioners filed an action with the Regional Trial Court of Dumaguete City to declare null and void the designations of private respondents as sectoral representatives, docketed as Civil Case No. 9955 entitled "Reynaldo Tuanda, et al. versus Secretary of the Department of Local Government, et al." On 21 July 1991, an information was filed before the Sandiganbayan, docketed as Criminal Case No. 16936 entitled "People of the Philippines versus Reynaldo Tuanda, et al." charging petitioners thus:
INFORMATION The undersigned Special Prosecution Officer of the Special Prosecutor, hereby accuses REYNALDO V. TUANDA, HERMENEGILDO G. FABURADA, MANUEL LIM, NICANOR P. AGOSTO, ERENIETA K. MENDOZA, MAXIMO VIERNES, HACUBINA V. SERILLO, and SANTOS A. VILLANUEVA of Violation of Section 3(e) of R.A. No. 3019, as amended, committed as follows: That during the period from February 1989 to February 1991 and subsequent thereto, in the Municipality of Jimalalud, Negros Oriental, and within the jurisdiction of this Honorable Court, accused, all public officers, Mayor REYNALDO V. TUANDA, Vice-Mayor HERMENEGILDO G. FABURADA, Sangguniang Members MANUEL LIM, NICANOR P. AGOSTO, ERENIETA K. MENDOZA, MAXIMO A. VIERNES, HACUBINA V. SERILLO, ILUMINADO D. ESTRELLANES and SANTOS A. VILLANUEVA while in the performance of their official functions and taking advantage of their public positions, with evident bad faith, manifest partiality, and conspiring and confederating with each other did, then and there, wilfully and unlawfully cause undue injury to Sectoral Members Bartolome M. Binaohan and Delia T. Estrellanes by refusing to pay despite demand the amount of NINETY FIVE THOUSAND THREE HUNDRED FIFTY PESOS (P95,350.00) and ONE HUNDRED EIGHT THOUSAND NINE HUNDRED PESOS (P108,900.00) representing respectively their per diems, salaries and other privileges and benefits, and such undue injury continuing to the present to the prejudice and damage of Bartolome Binaohan and Delia Estrellanes. CONTRARY TO LAW. 1

On 9 September 1991, petitioners filed a motion with the Sandiganbayan for suspension of the proceedings in Criminal Case No. 16936 on the ground that a prejudicial question exists in Civil Case No. 9955 pending before the Regional Trial Court of Dumaguete City. 2 On 16 January 1992, the Regional Trial Court rendered a decision declaring null and void ab initio the designations issued by the Department of Local Government to the private respondents as sectoral representatives for having been done in violation of Section 146 (2) of B.P. Blg. 337, otherwise known as the Local Government Code. 3 The trial court expounded thus:

The Supreme Court in the case of Johnny D. Supangan Jr. v. Luis T. Santos, et al., G.R. No. 84663, along with 7 companion cases of similar import, (G.R. Nos. 05012, 87601, 87602, 87792, 87935, 88072, and 90205) all promulgated on August 24, 1990, ruled that: B.P. Blg. 337 explicitly required that before the President (or the Secretary of the Department of Local Government) may appoint members of the local legislative bodies to represent the Industrial and Agricultural Labor Sectors, there must be a determination to be made by the Sanggunian itself that the said sectors are of sufficient number in the city or municipality to warrant representation after consultation with associations and persons belonging to the sector concerned.

The Supreme Court further ruled

For that matter, the Implementing Rules and Regulations of the Local Government Code even prescribe the time and manner by which such determination is to be conducted by the Sanggunian. Consequently, in cases where the Sanggunian concerned has not yet determined that the Industrial and Agricultural Labor Sectors in their particular city or municipality are of sufficient number to warrant representation, there will absolutely be no basis for the designation/appointments. In the process of such inquiry as to the sufficiency in number of the sector concerned to warrant representation, the Sanggunian is enjoined by law (B.P. Blg. 337) to consult with associations and persons belonging to the sector concerned. Consultation with the sector concerned is made a pre-requisite. This is so considering that those who belong to the said sector are the ones primarily interested in being represented in the Sanggunian. In the same aforecited case, the Supreme Court considers such prior determination by the Sanggunian itself (not by any other person or body) as a condition sine qua non to a valid appointment or designation. Since in the present case, there was total absence of the required prior determination by the Sangguniang Bayan of Jimalalud, this Court cannot help but declare the designations of private defendants as sectoral representatives null and void. This verdict is not without precedence. In several similar cases, the Supreme Court invariably nullified the designations where the requirements of Sec. 146 (2), B.P. Blg. 337 were not complied with. Just to cite one case, the Supreme Court ruled: There is no certification from the Sangguniang Bayan of Valenzuela that the sectors concerned are of sufficient number to warrant representation and there was no consultation whatsoever with the associations and persons belonging to the Industrial and Agricultural Labor Sectors. Therefore, the appointment of private respondents Romeo F. Bularan and Rafael Cortez are null and void (Romeo Llanado, et al. v. Hon. Luis Santos, et al., G.R. No. 86394, August 24, 1990). 4

Private respondents appealed the aforestated decision to the Court of Appeals, docketed as CA-G.R. CV No. 36769, where the same is currently pending resolution.

Meanwhile, on 17 February 1992, respondent Sandiganbayan issued a resolution denying the motion for suspension of proceedings filed by petitioners. Said respondent Sandiganbayan:
Despite the pendency of Civil Case No. 9955 of the Regional Trial Court of Negros Oriental, it appears, nevertheless, that the private complainants have been rendering services on the basis of their respective appointments as sectoral members of the Sangguniang Bayan of the Municipality of Jimalalud, Negros Oriental; and that their said appointments enjoy the presumption of regularity. Having rendered such services, the private complainants are entitled to the salaries attached to their office. Even assuming arguendo that the said Regional Trial Court shall later decide that the said appointments of the private complainants are null and void, still the private complainants are entitled to their salaries and compensation for service they have actually rendered, for the reason that before such judicial declaration of nullity, the private complainants are considered at least de facto public officers acting as such on the basis of apparently valid appointments issued by competent authorities. In other words, regardless of the decision that may be rendered in Civil Case No. 9955, the private complainants are entitled to their withheld salaries for the services they have actually rendered as sectoral representatives of the said Sangguniang Bayan. Hence, the decision that may be rendered by the Regional Trial Court in Civil Case No. 9955 would not be determinative of the innocence or guilt of the accused. WHEREFORE, the subject Petition for the Suspension of Proceedings in Virtue of Prejudicial Question filed by the accused through counsel, is hereby DENIED for lack of merit. SO ORDERED. 5

Petitioners filed a motion for reconsideration of the aforementioned resolution in view of the decision promulgated by the trial court nullifying the appointments of private respondents but it was, likewise, denied in an order issued by respondent Sandiganbayan on 19 August 1992 on the justification that the grounds stated in the said motion were a mere rehash of petitioners' original motion to hold the case in abeyance. 6 The dispositive portion of its order reads as follows:
WHEREFORE, in view of the foregoing, the arraignment of the accused which was scheduled today is cancelled. Mayor Reynaldo Tuanda, Hermenegildo Faburada, Nicanor P. Agosto, Erenieta K. Mendoza, Hacubina V. Serillo and Iluminado Estrellanes are, however, hereby ordered to show cause in writing within ten (10) days from service hereof why they should not be cited for contempt of court for their failure to appear in court today for arraignment. In case of an adverse resolution on the motion to quash which is to be filed by the counsel for the defense, set this case for arraignment, pre-trial and trial on January 4 & 5, 1993, on all dates the trial to start at 8:30 o'clock in the morning. SO ORDERED. 7

On 19 February 1993, respondent Sandiganbayan issued an order holding consideration of all incidents pending the issuance of an extended resolution. 8

No such resolution, however, was issued and in its assailed order dated 13 May 1992, respondent Sandiganbayan set the arraignment of petitioners on 30 June 1993. The dispositive portion of the order reads:
WHEREFORE, considering the absence of the accused from the scheduled hearing today which We deem to be excusable, reset this case for arraignment on June 30, 1993 and for trial on the merits on June 30 and July 1 and 2, 1993, on all dates the trial to start at 8:30 o'clock in the morning. Give proper notice to the accused and principal counsel, Atty. Alfonso Briones. Considering that the accused come all the way from Himalalud, Negros Oriental, no postponement will be allowed. SO ORDERED. 9

Hence, this special civil action for certiorari and prohibition where petitioners attribute to respondent Sandiganbayan the following errors:
A. The Respondent Court committed grave abuse of discretion in denying petitioners' motions for the suspension of the proceedings in Criminal Case No. 16936 in spite of the pendency of a prejudicial issue before the Court of Appeals in CA-G.R. CV No. 36769; B. The Respondent Court acted without or in excess of jurisdiction in refusing to suspend the proceedings that would entail a retrial and rehearing by it of the basic issue involved, i.e., the validity of the appointments of private respondents and their entitlement to compensation which is already pending resolution by the Court of Appeals in C.A. G.R. CV No. 36769; and C. The Respondent Court committed grave abuse of discretion and/or acted without or in excess of jurisdiction in effectively allowing petitioners to be prosecuted under two alternative theories that private respondents are de jure and/or de facto officers in violation of petitioners' right to due process. 10

In sum, the only issue in the case at bench is whether or not the legality or validity of private respondents' designation as sectoral representatives which is pending resolution in CA-G.R. No. 36769 is a prejudicial question justifying suspension of the proceedings in the criminal case against petitioners. A prejudicial question is one that must be decided before any criminal prosecution may be instituted or before it may proceed (see Art. 36, Civil Code) because a decision on that point is vital to the eventual judgment in the criminal case. Thus, the resolution of the prejudicial question is a logical antecedent of the issues involved in said criminal case. 11 A prejudicial question is defined as that which arises in a case the resolution of which is a logical antecedent of the issue involved therein, and the cognizance of which pertains to another tribunal. The prejudicial question must be determinative of the case before the court but the jurisdiction to try and resolve the question must be lodged in another court or tribunal. 12 It is a question based on a fact distinct and separate from "the crime but so intimately connected with it that it determines the guilt or innocence of the

accused, and for it to suspend the criminal action, it must appear not only that said case involves facts intimately related to those upon which the criminal prosecution would be based but also that in the resolution of the issue or issues raised in the civil case, the guilt or innocence of the accused would necessarily be determined. It comes into play generally in a situation where a civil action and a criminal action are both pending and there exists in the former an issue which must be preemptively resolved before the criminal action may proceed, because howsoever the issue raised in the civil action is resolved would be determinative juris et de jure of the guilt or innocence of the accused in the criminal case." 13 The rationale behind the principle of prejudicial question is to avoid two conflicting decisions. 14 It has two essential elements:
(a) the civil action involves an issue similar or intimately related to the issue raised in the criminal action; and (b) the resolution of such issue determines whether or not the criminal action may proceed. 15

Applying the foregoing principles to the case at bench, we find that the issue in the civil case, CA-G.R. CV No. 36769, constitutes a valid prejudicial question to warrant suspension of the arraignment and further proceedings in the criminal case against petitioners. All the elements of a prejudicial question are clearly and unmistakably present in this case. There is no doubt that the facts and issues involved in the civil action (No. 36769) and the criminal case (No. 16936) are closely related. The filing of the criminal case was premised on petitioners' alleged partiality and evident bad faith in not paying private respondents' salaries and per diems as sectoral representatives, while the civil action was instituted precisely to resolve whether or not the designations of private respondents as sectoral representatives were made in accordance with law. More importantly, ,the resolution of the civil case will certainly determine if there will still be any reason to proceed with the criminal action. Petitioners were criminally charged under the Anti-Graft & Corrupt Practices Act (RA 3019, sec, 3[e]) due to their refusal, allegedly in bad faith and with manifest partiality, to pay private respondents' salaries as sectoral representatives. This refusal, however, was anchored on petitioners' assertion that said designations were made in violation of the Local Government Code (B.P. Blg. 337) and thus, were null and void. Therefore, should the Court of Appeals uphold the trial court's decision declaring null and void private respondents' designations as sectoral representatives for failure to comply with the provisions of the Local Government Code (B.P. Blg. 337, sec. 146[2]), the charges against petitioners would no longer, so to speak, have a leg to stand on. Petitioners cannot be accused of bad faith and partiality there being in the first place no obligation on their part to pay private respondents' claims. Private respondents do not have any legal right to demand salaries, per diems and other benefits. In other words, the Court of

Appeals' resolution of the issues raised in the civil action will ultimately determine whether or not there is basis to proceed with the criminal case. Private respondents insist that even if their designations are nullified, they are entitled to compensation for actual services rendered. 16 We disagree. As found by the trial court and as borne out by the records, from the start, private respondents' designations as sectoral representatives have been challenged by petitioners. They began with a petition filed with the Office of the President copies of which were received by private respondents on 26 February 1989, barely eight (8) days after they took their oath of office. 17 Hence, private respondents' claim that they have actually rendered services as sectoral representatives has not been established. Finally, we find unmeritorious respondent Sandiganbayan's thesis that even in the event that private respondents' designations are finally declared invalid, they may still be considered de facto public officers entitled to compensation for services actually rendered. The conditions and elements of de facto officership are the following:
1) There must be a de jure office; 2) There must be color of right or general acquiescence by the public; and 3) There must be actual physical possession of the office in good faith. 18

One can qualify as a de facto officer only if all the aforestated elements are present. There can be no de facto officer where there is no de jure office, although there may be a de facto officer in a de jure office. 19 WHEREFORE, the resolution dated 17 February 1992 and orders dated 19 August 1992 and 13 May 1993 of respondent Sandiganbayan in Criminal Case No. 16936 are hereby SET ASIDE. Respondent Sandiganbayan is enjoined from proceeding with the arraignment and trial of petitioners in Criminal Case No. 16936 pending final resolution of CA-G.R. CV No. 36769. SO ORDERED. Padilla, Davide, Jr. and Bellosillo, JJ., concur. Hermosisima, Jr., J., took no part. Footnotes
1 Rollo, pp. 36-37. 2 Id., at 38-50.

3 Id., at 51-60. 4 Id., at 59-61. 5 Id., at 34-35. 6 Id., at 30. 7 Id., at 31. 8 Id., at 82. 9 Id., at 29. 10 Id., at 13-14. 11 Edgardo C. Paras, Rules of Court Annotated Vol. Three, 1990, citing People v. Aragon, L-5930, 17 Feb. 1954. 12 Yap v. Paras, 205 SCRA 625 (1994); Quiambao v. Osorio, 158 SCRA 674 (1988); Donato v. Luna, 160 SCRA 441 (1988); Ras v. Rasul, 100 SCRA 125 (1980). 13 Librodo v. Coscolluela, Jr., 116 SCRA 303 (1982): see also Apa, et al. v. Fernandez, et al., G.R. No. 112381, March 20, 1995. 14 Developments In The Law On Prejudicial Questions, 44 SCRA 208 (1972). 15 Sec. 5, Rule III of Revised Rules of Court; Yap v. Paras, supra, Umali v. IAC, 186 SCRA 680 (1990). 16 Rollo, p. 92. 17 Id., at 52-53. 18 Hector S. De Leon and Hector M. De Leon, Jr., Law on Public Officers and Election Law, 1990 ed., pp. 87-88. 19 Government of the Philippine Islands v. Springer, 50 Phil. 259.

The Lawphil Project - Arellano Law Foundation

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-13744 November 29, 1918

JOSE LINO LUNA, petitioner-appellant, vs. EULOGIO RODRIGUEZ, respondent-appellant; SERVANDO DE LOS ANGELES, respondent. Ramon Diokno and Agapito Ygnacio for petitioner. Sumulong & Estrada for respondent.

JOHNSON, J.: It appears from the record that an election for the office of governor of the Province of Rizal was held on the 6th day of June, 1916. At said election Jose Lino Luna, Eulogio Rodriguez and Servando de los Angeles were candidates for said office. The election was closed, the votes cast in the various municipalities were counted, and a return was made by the inspectors of said municipalities to the provincial board of canvassers, who, after a canvass of said returns, proclaimed the following result: (a) That Eulogio Rodriguez received 4,321 votes; (b) Jose Lino Luna 4,157; (c) Servando de los Angeles 3,576 votes; and (d) that Eulogio Rodriguez, having received a plurality of said votes, was duly elected governor of said province. Against said proclamation Jose Lino Luna presented a protest in the Court of First Instance. Upon said protest issue was joined, hearing was had and a decision was rendered which was, on appeal, set aside and a new trial ordered. (Lino Luna vs. Rodriguez and De los Angeles, 37 Phil. Rep., 186.) Complying with said order, a new trial was had at which the Honorable William E. McMahon, judge, presided. Additional evidence was adduced. After a consideration of all of the facts and the evidence adduced at both trials, Judge McMahon reached the conclusion that the ballots cast for the various candidates were as indicated in the returns of the inspectors of the various municipalities except those in the municipality of Taytay and Binangonan. In the municipality of Taytay, Judge McMahon found from the evidence that 50 ballots cast for Eulogio Rodriguez should not have been counted for him, and ordered that number of votes deducted from his total. In the municipality of Binangonan, Judge McMahon found that the inspectors did not close the polls at 6 o'clock p.m., and that a large number of persons voted after that time, and directed that the total vote of Eulogio Rodriguez should be reduced by the number of such votes, without ascertaining how many had been cast for Rodriguez and how many for Luna. By deducting the said votes in the municipality of Taytay

and those cast after six o'clock p.m. in the municipality of Binangonan, Judge McMahon concluded that Jose Lino Luna had received a plurality of the legal votes cast at said election and ordered the provincial board of canvassers to correct its canvass accordingly. From that conclusion both parties to the contest appealed to this court and made several assignments of error. Considering all of said assignments of error, we find that they present, in fact, but three questions: (1) What is the effect of holding the polls open after the hour fixed for closing the election? (2) What is the effect of assistance rendered by the inspectors of the election to incapacitated persons, without first requiring of such persons an oath to the effect that they are incapacitated to prepare their own ballots? (3) What is the effect of a failure on the part of the authorities to provide proper voting booths? With reference to the first question, the law provides that "at all the elections held under the provisions of this Act the polls shall be open from seven o'clock in the morning until six o'clock in the afternoon, during which period not more than one member of the board of inspectors shall be absent at one time, and then for not to exceed twenty minutes at one time." (Sec. 21 of Act No. 1582; sec. 11 of Act No. 2045; sec. 543 of Act No. 2657, and sec. 445 of Act No. 2711.) Are the provisions with reference to the time of opening and closing the polls mandatory? It is admitted in the present case that the polls were not closed at 6 p.m. The record shows that at 6 p.m. a large number of voters had not yet been able to vote and that, for that reason, an agreement was made between some of the candidates for office who were present and the board of inspectors, to the effect that the polls should be kept open in order that such electors might vote. No objection whatever to that agreement was made by any person at that time. One of the reasons why all of the voters of the municipality had not voted before 6 p.m. was that the board of inspectors failed to have the list of voters properly prepared at 7 a.m., and therefore but few of the voters were able to vote before eleven or eleven-thirty in the morning. That failure, on the part of the board of inspectors, made it impossible for many of the voters of the municipality of Binangonan to vote before the regular time for the closing of the polls. Shall the ballot of an innocent voter, who is prevented, through no fault of his, from casting the same before 6 p.m. be annulled for the simple reason that the polls were kept open, after the hour designated by the law, for the purpose of giving such voter an opportunity to vote? Experience and observation has taught legislatures and courts that, at the time of a hotly contested election, the partisan spirit of ingenious and unscrupulous politicians will lead them beyond the limits of honesty and decency and by the use of bribery, fraud and intimidation, despoil the purity of the ballot and defeat the will of the people at the polls. Such experience has led the legislatures to adopt very stringent rules for the purpose of protecting the voter in the

manner of preparing and casting his ballot to guard the purity of elections. (Paulino vs. Cailles, 37 Phil. Rep., 825.) The infinite ingenuity of violent partisan spirit in evading the rules and regulation of elections and the use of bribery, fraud and intimidation has made necessary the establishment of elaborate and rigid rules and regulations for the conduct of elections. The very elaborateness of these rules has resulted in their frequent violation and the reports of the courts are replete with cases in which the result of an election has been attacked on the ground that some provision of the law has not been complied with. Presumably, all the provisions of the election laws have a purpose and should therefore be observed. (Detroit vs. Rush, 82 Mich., 532; 10 L. R. A., 171; 9 R. C. L., 1091; Patton vs. Watkins, 131 Ala., 387; 90 Am. State Rep., 43, 72.) It has been announced in many decisions that the rules and regulations, for the conduct of elections, are mandatory before the election, but when it is sought to enforce them after the election they are held to be directory only, if that is possible, especially where, if they are held to be mandatory, innocent voters will be deprived of their votes without any fault on their part. (Patton vs. Watkins, 131 Ala., 387; 90 Am. State Rep., 43, 72; Jones vs. State, 153 Ind., 440.) In the case of Gardiner vs. Romulo (26 Phil. Rep., 521), we held that when the Election Law does not provide that a departure from a prescribed form will be fatal and such departure has been due to an honest mistake or misrepresentation of the Election Law, and such departure has not been used as a means for fraudulent practices and it is clear that there has been a free and honest expression of the popular will, the law will be held to be directory and such departure will be considered a harmless irregularity. However, the irregularities may be so numerous as not to be attributed to ignorance or honest mistake, but to a design to defeat the will of the voters or to such careless disregard of the law as to amount not only to laches but to fraudulent intent. In such cases, the election officers should be punished, the election should be declared null and a new election held. It has been held, therefore, very generally, that the provisions of a statute as to the manner of conducting the details of an election are not mandatory, but directory merely, and irregularities, in conducting an election and counting the votes, not proceeding from any wrongful intent and which deprives no legal voter of his vote, will not vitiate an election or justify the rejection of the entire votes of a precinct. (Behrensmeyer vs. Kreitz, 135 Ill., 591; Hankey vs. Bowman, 82 Minn., 328; Sprague vs. Norway, 31 Cal., 173; Webre vs. Wilton, 29 La. Ann., 610.) The purpose of an election is to give the voters a direct participation in the affairs of their government, either in determining who shall be their public officials or in deciding some question of public interest; and for that purpose all of the legal voters should be permitted, unhampered and unmolested, to cast their ballot. When that is done and no frauds have been committed, the ballots should be counted and the election should not be declared null. Innocent voters should not be deprived of their participation in the affairs of their government for mere irregularities on the part of the election officers, for which they are in no way responsible. A different rule would make the manner and method of performing a public duty of greater importance than the duty itself. (Loomis vs. Jackson, 6 W. Va., 613.)

The errors and irregularities which warrant the rejection of ballots and the annulment of an election and thus deprive lawful voters of their legal right to vote, should be such as to fully justify that result. (The People vs. Cook, 8 N. Y., 67; 59 Am. Dec., 451.) It has been held that even great irregularities on the part of election officers will not of necessity vitiate an election, where no fraud is committed or attempted, or no illegal vote was polled was no legal voter was deprived of his vote. (Morris vs. Vanlaningham, 11 Kan., 269.) No complaint is made that any fraud was committed nor that any person voted who had no right to vote, by reason of the fact that the polls were kept open after the hour fixed by the law. It is admitted that the polls were kept open after the hour, by the consent of all parties concerned, for the reasons and purposes above indicated. In view of such facts, should the vote of the innocent voter be annulled and he thereby deprived of his participation in the affairs of the government when he was guilty of no illegal act? If the inspectors may, for one reason or another, prevent the opening of the polls or delay the commencement of the voting until 11 o'clock in the morning and then close the polls in the evening so as to prevent all those who desire to vote from voting, without incurring criminal liability for a violation of the election laws, the same motives will induce them to delay the opening of the polls until later and thus prevent any to vote except those whom they desire. The polls should be opened and closed in strict accord with the provisions of the law. Voters who do not appear and offer to vote within the hours designated by the law should not be permitted to vote after the time for closing the polls has arrived. Upon the other hand, if the voter is prevented, during the voting hours, from voting, and is not permitted to vote by reason of the failure of the inspectors to do their duty, then, certainly, in the absence of some fraud, neither such votes nor the entire vote of the precinct should be annulled simply because some votes were cast after the regular hour. (People vs. Prewett, 124 Cal., 7; Packwood vs. Brownell, 121 Cal., 478; Pickett vs. Russell, 42 Fla., 116.) The decisions in the various States of the United States are not uniform upon the effect of a failure to open and close polls at the time specified by the law. In some States such a provision has been held to be mandatory, in others directory. The decisions seem to be based upon the language of the particular statutes discussed. We are not inclined to the belief that the legislature intended that a failure to comply with the law in this jurisdiction should render the entire election void, nor nullify the votes cast after the period mentioned in the law, unless the polls were kept open after the hour for the purpose of permitting some fraud to be committed, or for the purpose of permitting some person to vote who had not appeared during the regular voting hours. The section of the law which we are discussing provides that 'not more than one member of the board of inspectors shall be absent at one time and then for not to exceed twenty minutes at one time." Suppose that the evidence showed that two of the inspectors were absent at one time and for a period longer than twenty minutes, would the courts be justified in holding that the entire election was void, in the absence of fraud, for the reason? There is little justification for holding that one provision of said section is mandatory and the other directory.

Our conclusion upon the first question, in view of the foregoing, is that in the present case there seems to be no justification, under the facts, there being no fraud committed, for annulling the votes of innocent voters who were permitted by the election inspectors to cast their votes in a legal manner after the regular hour for closing the polls. In this conclusion, however, we do not desire to be understood to have decided that in no case should the courts not annul and set aside an election, where fraud is clearly proved, for a violation of the section under discussion. When the polls are kept open after the hour prescribed by the law for the purpose of defeating the will of the people, such a violation of the law should result in annulling and setting aside the election of that precinct. No such facts exist in the present case. It is true, perhaps, that a number of the votes cast after the hour for closing the polls were sufficient to change the result of the election, but the result would have been the same had those same voters been permitted to vote, except for the negligence of the inspectors, during the regular hours for voting. There seems to be no more reason for annulling the votes cast, after the hour for closing the election, than for annulling the election for the reason that the inspectors failed to provide the means for voting at the time fixed for opening the polls in the morning. We are firmly of the opinion that instead of depriving the innocent voters of their right to participate in the affairs of their government for irregularities committed by the election inspectors, the latter should be proceeded against in a criminal action for failure, on their part, to comply with the law and be punished in accordance with section 29 of Act No. 1592; section 2632 of Act No. 2657 and section 2639 of Act No. 2711. The various and numerous provisions of the Election Law are adopted to assist the voters in their participation in the affairs of the government, and not to defeat that object. When the voters have honestly cast their ballots, the same should not be nullified simply because the officers appointed, under the law to direct the election and guard the purity of elections, have not done their duty. The law provides a remedy, by criminal action, against them. They should be prosecuted, and the will of the honest voter, as expressed through his ballot, should be protected and upheld.lawphi1.net It may be noted in this relation that, under the law, the polls are kept open from 7 a.m. until 6 p.m. or, for a period of eleven hours only. In the municipality of Binangonan the record shows that there were 375 analfabetos (illiterate persons) and 164 other voters. The law requires an analfabeto to take an oath and that the oath shall be filed. Naturally the inspectors require some time in (a) ascertaining whether or not the voter is in fact an analfabeto; (b) in administering, preparing, signing and filing the oath. Suppose one minute only is allowed for that work. Then two inspectors must accompany such a voter to the booth, there assist him in preparing his ballot and then return to their position occupied by them as inspectors. We do not think that work could be accomplished in less than another minute and it would more than likely occupy nearer two minutes. But admitting that it could be accomplished in one minute, we have, at least, two minutes occupied by two inspectors for each analfabeto. There being 375 analfabetos, it would require 750 minutes to vote, or 12 hours. If the inspectors had strictly complied with the law, not all of the analfabetos of said municipality could have voted in the eleven hours provided by the law, not to say anything of the time necessarily occupied with the 164 other voters of the municipality who would, at least, occupy one minute each of the time of the inspectors, or nearly 2 1/2 hours more. With reference to this particular question of the time

necessary for each analfabeto to vote, some of the judges have estimated that it would take, at least, five minutes of the time of the inspectors for each analfabeto. (Hontiveros vs. Mobo, R. G. No. 13959, p. 230, post.) From the foregoing, it was practically an impossibility for all of the voters of said municipality to have voted in the eleven hours prescribed by the law even though the polls had been opened promptly at 7 a.m. instead of at nearly 11 a.m. The above time is computed upon the theory that no time whatever is lost, that the voters arrive one immediately after another and that no time is lost waiting for the arrival of the voters. With reference to the second question above presented, the law provides that: A voter otherwise qualified who declares that he can not write, or that from blindness or other physical disability he is unable to prepare his ballot, may make an oath to the effect that he is so disabled and the nature of his disability and that he desires the inspectors to assist him in the preparation of such ballot. The board shall keep a record of all such oaths taken and file the same with the municipal secretary with the other records of the board after the election. Two of the inspectors, each of whom shall belong to a different political party, shall ascertain the wishes of the voter, and one of them shall prepare the ballot of the voter in proper form according to his wishes, in the presence of the other inspector, and out of view of any other person. The information this obtained shall be regarded as a privileged communication. (Section 12, Act No. 2045; section 550, Act No. 2657; section 453, Act No. 2711.) Said quoted section provides the method by which a person who cannot prepare his ballot may be assisted. The conditions are: (a) That he must make an oath to the effect that he is disabled and the nature of his disability together with the fact that he desires the inspectors to assist him in the preparation of his ballot; (b) That a record of said oath shall be filed with the municipal secretary with the other records of the board of inspectors after the election; and (c) When said oath is taken, then two of the inspectors, each of whom shall belong to different political party, may assist him in the preparation of his ballot. In view of said conditions, what shall be the effect of a failure to comply therewith? Suppose, for example, that the voter is incapacitated; that the board of inspectors are fully aware of that fact; that they failed to require of him the oath; that they failed to keep on file the oath taken, or that one inspector only assisted said voter in the preparation of his ballot, or that two assisted him which belonged to the same party, shall the ballot of such an incapacitated person be rejected? Shall all of the votes of the precinct be nullified because of the failure of the inspectors to comply strictly with the letter of the law?

We held in the case of Paulino vs. Cailles (R. G. No. 12753, 37 Phil. Rep., 825) that the ballots of incapacitated persons who voted without taking the oath or were assisted by one inspector alone, or by two belonging to the same party, should not be counted if such ballots could be identified. We further held that, in the absence of fraud, all of the ballots of the precinct should not be invalidated by the mere fact that the inspectors did not comply with their duty. Innocent voters should not be deprived of their participation in an election for a violation of the law for which they were in no way responsible and which they could not prevent.lawphil.net The incapacitated persons mentioned in said section above noted are usually persons who are unable to acquaint themselves with the provisions of the law. They are, therefore, absolutely dependent upon the advice and counsel of others. Generally, they have no idea whatever as to the form and requirements in casting their ballots. Their ignorance, however, does not relieve them from their responsibility under the law, nor from the effect of their failure to comply therewith. (Manalo vs. Sevilla, 24 Phil. Rep., 609; Gardiner vs. De Leon, R. G. No. 12382 decided March 15, 1917, not published; Paulino vs. Cailles, R. G. No. 12763, 37 Phil. Rep., 825.) The law intended that those votes only who are incapacitated in some way should be assisted. To insure a compliance with the law an oath of incapacity is required. To prove that only such persons have received assistance, the election board is required to keep a record of such oath. To guarantee that such voters should not be imposed upon, the law wisely provided that two inspectors of different political faith should assist them. Upon the other hand, if the inspectors have failed or declined to perform a duty or obligation imposed upon them by the Election Law, they may be punished. The record shows that in many of the municipalities of the Province of Rizal, during the election in question, a great many incapacitated persons voted without taking the oath required and were assisted by one inspector only in the preparation of their ballots. But, in view of the fact that such ballots have not been identified they cannot be rejected. The voter cannot be punished. The remedy is by a criminal action against the inspectors for a failure to comply with the law. (Section 29, Act No. 1582; section 2632, Act No. 2657; section 2639, Act No. 2711.) Said section (2632) provides, among other things, that any member of a board of registration, or board of inspectors, or board of canvassers who willfully declines or fails to perform any duty or obligation imposed by the Election Law, shall be punished by imprisonment for not less than one month nor more than one year, or by a fine of not less than P200 nor more than P500 or both. With reference to the third question above indicated, relating to what is the effect of a failure on the part of the authorities to provide proper voting booths, it may be said that we have held in the case of Gardiner vs. Romulo (26 Phil. Rep., 521) that the requirements of the Election Law providing for the location of polling stations and the construction of booths and guard rails for the latter may be departed from in some particulars and yet preserve, in substantial form, the secrecy which the law requires. But the failure to provide doors and guard rails for the booths and the placing of the writing shelf so that it faces the side instead of the rear of the booths are, combined, a fatal disregard of the law, inasmuch as such an arrangement does not offer, even in

substantial form, the secrecy and seclusion which, according to the purpose and spirit of the Election Law, is its most mandatory requirement. Section 9 of Act No. 1582, as amended by section 512 of Act No. 2657 and section 415 of Act 2711, provides that there shall be in each polling place, during each election, a sufficient number of voting booths, not less than one for every fifty voters, in the election precinct. Said section further provides how such voting booths, not less than one every fifty voters, in the election precinct. Said section further provides how such voting booths shall be constructed. The purpose of said provisions is to furnish each voter an opportunity to prepare his ballot in secrecy. Suppose the board of inspectors does not prepare the voting booth in exactly the form prescribed by law, what shall be the effect? Support, the example, that they construct a booth less than one meter square as is provided by the law but yet sufficiently large to enable the voter to enter and to prepare his ballot in secrecy; or suppose that the door swinging outward to the booth shall extend to the floor instead of within fifty centimeters of the floor; or suppose that the shelf upon which the voter shall prepare his ballot shall be less than thirty centimeters wide, shall the entire election be declared null and void for such failures when it is admitted and proved, beyond question, that even with such defects in the fulfillment of the requirements of the election law they were in fact constructed in a manner which provided the voter a complete opportunity to prepare his ballot in absolute secrecy? While there is no provision in the law, relating to the construction of booths, they shall be constructed in such manner as to afford the voter an opportunity to prepare his ballot in secret, that must be the primary and ultimate object of having the booths constructed in the manner indicated. When we held that the law requiring the preparation of the booths in a particular manner was mandatory, we did not mean to hold that unless they were prepared in exact conformity with the law, that the election would be nullified. We simply held that if they were not constructed in a manner which afforded the voters an opportunity to prepare their ballots in secret, the election would be declared null and void on that account. If, however, upon the other hand, the booths were so constructed, even though not in strict accord with the provisions of the law, as to afford each voter an opportunity to prepare his ballot in secret, the election should not be declared null and void. Secrecy is the object of the booth. An opportunity to prepare his ballot in private is the purpose of the provision. When the booth affords that protection, the purpose of the law is fulfilled. To hold otherwise to establish a different rule would make the manner of performing a public duty more important than the performance of the duty itself. In the present case, while there is some conflict in the evidence, and while the proof clearly shows that the booths were not constructed in strict accordance with the provisions of the law, we are of the opinion that a large preponderance of the evidence shows that the booths were constructed (defectively perhaps) in a manner which afforded each voter an opportunity to prepare his ballot in absolute secrecy. That being true, we find no reason for changing or modifying the conclusion of the lower court. The defendant-appellant alleges, and attempts to establish the fact, that in the municipality of San Felipe Nery many irregularities were committed which should invalidate the election. For example, he alleges the different columns of the polling list were not properly filled. Even granting that fact, the voter was in no way responsible. The voter not being responsible, his

ballot should not be nullified on that account. Filling the different columns of the polling list is a duty imposed upon the election officers. If they fail to perform their duty they are responsible; and as we have frequently said, the ballots of innocent voters should not be nullified for a failure on the part of election officers to perform their duty in accordance with the provisions of the law. The remedy is a criminal action against the inspectors if they have violated the law and not to nullify the votes of innocent voters. The defendant-appellant further alleges that in the municipality of San Felipe Nery, a number of voters voted who were not residents of said municipality. That question was presented to the court below, and upon a full consideration he refused to nullify the election in said municipality upon the grounds alleged. While it is true that the proof shows that some grave irregularities were committed by the board of inspectors, we are not persuaded that the evidence is sufficient to justify this court in nullifying the entire vote of said municipality. In view of that conclusion, we deem it unnecessary to discuss the other allegations of the defendant-appellant with reference to the striking out of certain allegations in his answer. The lower court, after hearing the evidence and after examining the ballots cast in the municipality of Taytay, found that 50 ballots which had been counted for the defendant-appellant should not be counted for him and ordered that the total vote of the defendant-appellant should be reduced by that number. The defendant-appellant in fact admits that the said 50 votes should be deducted from his total vote. In view of that admission of the defendant-appellant, we deem it unnecessary to discuss the reasons therefor. Upon the various errors assigned, our conclusions are: (1) That the total votes cast in the municipality of Binangonan should be counted for the respective candidates; that for the special reason given, the board of inspectors was justified in keeping the polls open after the hour for closing. But this conclusion must not be interpreted to mean that under other circumstances and other conditions, where the polls are kept open after the hour for fraudulent purposes, that such act on the part of the inspectors might not nullify the entire election (Gardiner vs. Romulo, 26 Phil. Rep., 521); (2) That while it is irregular for the board of inspectors to permit incapacitated voters to vote without taking the oath and for one inspector only to assist such voters, yet the ballots of the innocent voters should not be nullified on that account; that the ballots of such persons only should be annulled when identified; (3) That inasmuch as the voting booths in the municipality of Antipolo were prepared in a manner and form which permitted the voter to prepare his ballot in absolute secrecy, the vote of that municipality should not be nullified; and (4) That the judgment of the lower court reducing the total vote of the defendantappellant by fifty identified fraudulent ballots counted for him, in the municipality of Taytay, should be affirmed.

As a result of the count of the ballots, cast in the various municipalities by the provincial board of inspectors, Eulogio Rodriguez received 4,321 votes, Jose Lino Luna received 4,157 votes and Servando de los Angeles received 3,576 votes. Servando de los Angeles did not protest the election. From all of the foregoing, the total votes of Eulogio Rodriguez must be reduced by 50 votes, leaving him a total of 4,271 only, or a clear majority of 114 votes. Therefore, with the modification herein indicated, the judgment of the lower court is affirmed as modified, and it is hereby ordered and decreed that the record be immediately returned to the lower court with direction that a judgment be entered directing and ordering the provincial board of inspectors to amend its count accordingly. It is so ordered, without any finding as to costs. Arellano, C.J., Torres, Street, Malcolm and Avancea, JJ., concur.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-781 November 29, 1946

CEFERINO M. REGALA, recurrente, vs. EL JUEZ DEL JUZGADO DEL PRIMERA INSTANCIA DE BATAAN, recurrido. Sres. Hernandez y Laquian en representacion del recurrrente. El Juez recurrido en su propia representacion. PABLO, J.: El recurrente es acusado en la causa criminal No. 4307 del Juzgado de Primera Instancia de Bataan por el delito de asesinato. En mayo 20, 1946 fue informado de la querella y se declaro no culpable. Los testigos, segun aquella, eran Wenceslao Cruz, Conrado Manalac y otros. En junio 6, dia designado para la vista, el Fiscal Provincial en vez de aducir sus pruebas presento una querella enmendada incluyendo como acusados a los testigos nombrados en la querella, Wenceslao Cruz y conrado Maalac. En esta segunda querella se alego que entre el recurrente y sus dos co-acusados hubo conspiracion, confederacion y ayuda mutua cometer el delito. Admitida por el juzgado la querella en cuanto a los acusados Conrado Manalac y Wenceslao Cruz para ser utilizados como testigos de la acusacion, alegando las cinco condiciones que require el articulo 9, Regla 115. A esta peticion accedio el Juez en su orden de 6 de junio de 1946. En junio 14 el recurrente presento el aviso de apelacion contra dicha orden, y fue denegada el 19 del mismo mes. En junio 26 el recurrente presento una mocion de reconsideracion que fue denegada en 11 de julio. Alegando estos hechos, el recurrente presento su peticion original de certiorari pidiendo que sean anuladas por este Tribunal las ordenes de 6 de junio y 11 de Julio de 1946 del Juzgado de Primera Instancia de Bataan. El recurrente alega que si no se diese curso a su citada apelacion se causaria irreparable dano a sus derechos sustanciales porque no tiene otro remedio facil, sencillo y adecuado. En caso de condena, el acusado puede apelar y en el juzgado ad quem puede discutir todos los errores cometidos por el juzgado inferior. Es el remedio ordinario que concede la legislacion vigente.

El recurrente alega que la orden del juez de 11 de julio denegando la mocion de reconsideracion es nula y de ningun valor porque dicho juez obro sin jurisdiccion, pues su nombramiento no ha sido aprobado por la Comision de Nombramientos, segun publico un periodico de la misma fecha. No consta en autos que el juez haya tenido conocimiento de tal desaprobacion antes de dictar su orden, impugnada de ilegal. Un juez que desempana su cargo antes de enterarse de la desaprobacion de su nombramiento es un juez de facto. Todas sus actuaciones oficiales, como juez de facto, son tan validas para todos los fines legales y para toda clase de asuntos, como las de un juez dejure. (Tayko contra Capistrano, 53 Jur. Fil., 923.) El recurrente y los disidentes arguyen que el juez, al permitir la inclusion de dos acusados y la adicion de las palabras: "by conspiring, confederating and helping one another" en la querella enmendada, abuso de su discrecion con infraccion del articulo 13, Regla 106 porque que esa enmienda sea tal. En la primera querella se acusa al recurrente de autor y en la enmemdada decoautor, pero su responsabilidad es la misma en ambas. El cambio solo se refiere a la forma de ejecucion del delito; pero no a la substancia del delito mismo. La forma de ejecucion es mas bien materia de pruebas y no de alegaciones, y los detalles alegados en la querella enmendada pudieron haberse probado bajo la querella original. Los solicitantes en este expendiente de certiorari, acusados en una querella por asesinato, alegan que el juzgado se excedio de su jurisdiccion y abuso de ella al permitir la enmienda de la querella. En la querella original se algaba que Bruno Arevalo iba armado de cortaplumas y Cecilio Arevalo de revolver. En el querella enmendada, que fue admitada, se alega que Bruno Arevalo era el que llevaba el revolver y Cecilio Arevalo el cortaplumas. En nuestra opinion, el juzgado no abuso de su discrecion. La enmienda de la querella era meramente de forma. No afecta ni altera la naturaleza del delito,pues, sea Bruno o Cecilio ell que haya causado la herida mortal, el delito serial el mismo. Tampoco afecta a la extension de la responsibilidad de los solicitantes, toda vez que, alegandose en el querella que ambos acusados conspiraron y se ayudaron el uno al otro para cometer el delito, serian responsables en la misma medida, sea una u otro el que infirio la herida que produjo la muerte del occiso. Es, por tanto, una enmienda puramente de forma que no altera sustancialmente la querella ni afecta a los derechos de los acusados (Arevalo y Arevalo contra Nepomuceno, 63 Jur. Fil., 665.) Ademas, si el juez actuo con infraccion o no del Reglamento fue a lo mas un error de procedimiento, y no un abuso de discrecion, ni exceso o falta de jurisdiccion. Tal error, si lo es en realidad, puede ser corregido en apelacion,despues de dictada sentencia definitiva en primera instancia, y no en una accion de certiorari. Solamente procede el remedio de certiorari cuando un tribunal, en el ejecucion de sus funciones judiciales, haya actuado sin jurisdiccion o con exceso de ella o con grave abuso de discrecion y que, en la tramitacion ordinaria, no tiene el recurrente el remedio sencillo y expedito de apelacion (Regla 67, articulo 1). Si por cada error cometido por un juzgado de certiorari, los asuntos serian interminables.

Se deniga la solicitud con las costas contra el recurrente. Moran, Pres., Paras, Bengzon y Padilla, MM., estan conformes.

Separate Opinions FERIA, J., concurring: I concur in the result for the following reasons: According to section 1, Rule 67, certiorari lies when a tribunal or officer exercising judicial functions has acted without or in excess of its jurisdiction, or with grave abuse of discretion, and there is no appeal nor any plain, speedy, and adequate remedy in the ordinary course of law. There is no doubt that appeal does not lie against an order of a court admitting or denying the amendment of a complaint or information, because such order is incidental or interlocutory and not final in character, that is, it does nor put an end to the ordinary proceedings of the case in court. Interlocutory or incidental order may be impugned as erroneous in the appellate court, when appeal is taken from the judgment or order of the lower court which is final in character. The question to determine, therefore, is whether or not the respondent judge acted (a) without or in excess of the court's jurisdiction, or (b) with grave abuse of discretion, in allowing the amendment of the information in this case. (a) As to the first question, it is well known rule that a court having jurisdiction over the offense charged and the territory wherein it was committed, has also jurisdiction to decide all questions incidental to the criminal proceeding, such as the sufficiency of a complaint or information, or whether the defendant has been previously convicted or in jeopardy of being convicted or acquitted of the offense charged, or is insane. If the decision or resolution on such questions is not conformity with or against the law, the court would commit an error, but not exceed its jurisdiction. A judge would act in excess of the court's jurisdiction if he performs or does an act which he has no power or authority to do, in connection with the proceeding over which the court has jurisdiction. But to decide erroneously a question which it is within the court's jurisdiction to decide, is not acting beyond or in excess of its jurisdiction. To hold otherwise would be to sustain the absurdity that a court acts within its jurisdiction if it decides a case in conformity with the law, and in excess of its jurisdiction of its decision is erroneous or contrary to law. From the foregoing, it necessarily follows that the decision or order of the respondent judge allowing the amendment of the information after the defendant petitioner has pleaded would be erroneous if it is an amendment of substance and not of form, but it would not be an act beyond or in excess of the court's jurisdiction, because the court has power or jurisdiction to decide that question. The respondent judge has not, therefore, acted without or in excess of the court's

jurisdiction in allowing the amendment of the information, however erroneous that resolution may be. (b) With respect to the second, it goes without saying, for it is of common sense, that if a person has no power to do an act, and therefore no discretion to do or not to do it, it cannot be said that he has acted within, or with grave abuse of, his discretion in doing or not doing it. No one may abuse a thing that he does not have. If the respondent judge has no discretion to act in one way or another, as in the present case, he could not have acted with grave abuse of discretion, for he can not abuse a discretion which does not have. Therefore the question is reduced to whether or not the court has power to allow the amendment in substance of an information after the defendant has pleaded. If it has no power to permit such amendment, it does have discretion to allow it or not because discretion supposes power to do. Section 13, Rule 106 of the Rules of Court, provides: SEC. 13. Amendment. the information or complaint may be amended, in substance or form, without leave of court, at any time before the defendant pleads; and thereafter and during the trial as to all matters of form, by leave and at the discretion of the court, when the same can be done without prejudice to the rights of the defendant. According to the above quoted provisions, after the discretion to allow the amendment of an information or complaint in matters of form, but not in matters of substance. The court having no power to allow amendment in substance it could not have discretion to allow it or not, and hence it could not have acted with grave abuse of discretion, which the court did not have. Therefore, the respondent judge has not acted with grave abuse of discretion in admitting the amendment, even assuming that the amendment is of substance. Wherefore, certiorari does not lie in the present case, and the petition is denied. Tuason, J., concurs.

HILADO, J., dissenting: I dissent. Paragraph 6 of the petition alleges that on May 20, 1946, petitioner was arraigned upon the information first filed by the Provincial Fiscal under date of May 6, 1946. In the original information the act imputed upon the petitioner, and upon him alone, was that of having killed one Efrain Brillo by shooting with a firearm. After petitioner had thus been arraigned, the Provincial Fiscal presented an amended information dated June 5, 1946, charging three persons, namely, petitioner Ceferino M. Regala, one Conrado Manalac and one Wenceslao Cruz with the act of having killed Efrain Brillo by shooting with a firearm, the amended information charging

that said three accused conspired, confederated and helped one another in thus killing Efrain Brillo. Paragraph 5 of the respondent's answer expressly admits that petitioner had already pleaded not guilty to the original information when the respondent court ordered the discharge of the two new defendants Conrado Manalac and Wenceslao Cruz. That discharge was so ordered upon the Provincial Fiscal's motion of June 5, 1946, quoted in Paragraph 8 of the petition. It, therefore, appears that the amendment of the information was made by the Provincial Fiscal and allowed by the respondent court after the defendant (now petitioner) had pleaded not guilty to the original information. Was the amendment merely formal, or was it substantial? To charge a person with having alone killed another is not the same as to the charge him and the two others with the killing. That the first act is substantially nay, essentially different from the second is to my mind too obvious to require argument. The first act is the act of only one individual while the second is the act of three. The first act is the act of only one individual while the second, if duly established, will result in the conviction of three. To say that the act of one person is substantially the same as the act of three persons, would virtually be tantamount to saying that one and three are the same. How, then, can the first and the second acts be substantially the same? Consequently, in the amended information petitioner was charged with an act entirely different and distinct from that charged against him in the original information. Hence, the amendment was not merely in form but in substance. The subsequent discharge of the accused Conrado Manalac and Wenceslao Cruz could not, of course, alter the principle. The amendment does not refer merely to the form of execution of the crime. If the one executing were the same person in both cases, then the statement would be correct. But such is not the situation here Ceferino M. Regala, Conrado Manalac and Wenceslao Cruz, the alleged perpetrators of the crime according to the amended information, are not the same as Ceferino M. Regala, the sole offender according to the original information. To further support their thesis, the majority affirm that the form of execution is rather a matter of evidence than of allegations and that the details alleged in the amended information could have been proven under the original information. We beg to point out the weakness of the argument: by proving the so-called details under the original information the conviction of the three killers could never have been attained for the simple reason that two of them were not being prosecuted under said original information; while by proving the allegations of the amended information (to test the strength of the argument we must suppose that Conrado Maalac and Wenceslao Cruz were not discharged) the conviction of all three defendants who have been secured. This difference between the original and amended informations, a difference which necessarily involves a substantial change in the charge. The charge under the amended information is no less substantially different from the charge contained in the original information than the difference between three and one. The case of Arevalo and Arevalo vs. Nepomuceno (63 Phil., 627) is not in point. There are the accused under the original and amended informations were the same two persons, Bruno Arevalo and Cecilio Arevalo, the only difference in the allegations consisting in the detail of which one of them was armed with a penknife and which was armed with revolver,

but in the original information, as well as in the amended one, the accused were the self-same two persons. There it was rightly said that whether Bruno was armed with a penknife and Cecilio with a revolver or vice versa, since they were charged with having conspired and helped each other in the commission of the crime, both could be convicted to the same extent in one or other case. In the case at bar, if it had been alleged in the amended information that the accused Regala ordered Conrado Maalac and Wenceslao Cruz to kill Efrain Brillo and only the said Regala was charged with the crime, it might be contended with stronger reason that the change was merely in the form in the form of execution. But such is not the case, as already demonstrated above. Another substantial amendment involved in the change from the original to the amended information is the augmentation of the jeopardy or danger of punishment to which the accused was subjected. Under the original information, in order to convict him, the evidence must established beyond reasonable doubt that he, by his own direct act, killed the victim. Under the amended information, after proof of conspiracy between him and his two co-accused, he could be convicted as co-author of the crime even without proof of his having personally and directly killed or physically participated in the killing of the victim, if sufficient evidence were adduced proving that the other two or anyone of the other two accused committed the direct act of killing. The amendment which gives rise to this difference of danger of punishment cannot in any rational sense be called merely formal. Neither can I agree with the view of the majority that we are here concerned at most with an error of procedure, and not an abuse of discretion. Neither can I subscribe to the corollary of said proposition, that the error is only corregible by appeal and not through certiorari. That we are dealing with the exercise according to my theory, with a grave abuse of the Court's discretion, is patent from the provision of Rule 106, section 13 which says that after plea and during the trial the information or complaint may be amended as to all matters of form (and may I add, as to matter of form only) by leave and "at the discretion of the court," when the same can be done without prejudice to the rights of the defendant. Rule 106, section 13, in providing that after plea and during the trial the information or complaint may be amended "as to all matters of form," by leave and at the discretion of the court, when the same can be done without prejudice to the rights of the defendant, necessarily denies all power and discretion to the court at that stage of the proceedings, to allow any amendment in substance. The present Chief Justice of this court, in his Commentaries on the Rules of Court (Vol. II, 1940 ed., p. 389), in part says: Under this section, the amendment of the complaint or information, either in substance or in form, is as to the plaintiff, practically a matter of right, if made before the defendant pleads; thereafter, amendments are at the discretion of the court and then only as to matters of form. . . . (Emphasis supplied.)

This leads to the conclusion that the respondent court acted with grave abuse of its discretion in allowing the amendment in question. And I am of opinion, with all due respect to the majority, that this action of the lower court may and should be corrected by certiorari. But it is said that appeal was the proper remedy. I understand this to mean that the accused, now petitioner, should go into trial under the amended information, await judgment and, if convicted, appeal therefrom, and only upon such appeal should he be allowed to complain against the error which, to my mind, was palpably committed by the respondent court. Supposing that upon that appeal it should be decided that the error was really committed by the trial court. What then would the appellate court do? To correct the error, it must declare that the amended information was erroneously admitted; and that trial court had gravely abused its discretion in so admitting said pleading. In such a case the amended information will necessarily be held illegally admitted; and I can not see how the appellate court can then avoid declaring invalid all the proceedings had thereunder, and to which the accused will have been so injuriously subjected. The error under consideration is of such nature by reason of its incidence, that, if it should be declared to have been committed, all the proceedings had under the amended information would have to be annulled and the case would need a re-trial. Such an error should, I think, be distinguished from an error corregible upon appeal without need of annulling the proceedings in the court below and remanding the case for re-trial. The first kind of error strikes at the very foundation of the proceedings below, while the second merely concerns details of such proceedings. In the first, appeal will fall far short of being a speedy and adequate remedy; in the second, it will not. It is in cases of the first class only where I think certiorari is the proper remedy. All other cases would fall under the second class, and we can safely say they constitute by far the greater number. We must remember that this is not a civil case it is a criminal prosecution for murder, during the progress and pendency of which it may well last over one year the accused, who is presumed to be innocent until validly convicted, will be subjected to the moral and nervous torture incident to the nature of the case, and even his personal liberty may be adversely affected if he be denied bail. In view of the foregoing considerations, I submit that appeal would fall far short of being a speedy and adequate remedy for this petitioner. If the amended information is held to be invalid for having been erroneously admitted, there should be no fear that this accused would go unpunished without trial. In such a case the amended information being invalid, the original information must be deemed never to have been superseded thereby and, therefore, still stands. The accused should then be prosecuted under the said original information. But if this court hold that a mistake has been made charging the proper offense in the original information, then in that case the Court of First Instance and order the filing of a new one charging the proper offense, provided the defendant would not thereby place in double jeopardy, pursuant to Rule 106, section 13, second paragraph.

I think petitioner is entitled to the writ of certiorari that he seeks, and that this court should annul the action of the respondent court in admitting the amended information and all proceedings had thereafter, with the proper instructions. BRIONES, M., disidente: El articulo 13, Regala 106, del Reglamento de los Tribunales, prescribe lo siguente: SEC. 13. Amendments. The information or complaint may be amended, in substance or form, without leave of court, any time before the defendants pleads; and thereafter and during the trial as to all matters of form, by leave and at the discretion of the court, whenn the same can be done without prejudice to the rights of the defendant. xxx xxx xxx

Resulta evidente, de lo transcrito, que despues de haber contensado el acusado a la querella, esta no puede enmendarse sustancialmente, en su fondo, sino solo en cuestion de forma, previo permiso del tribunal, y aun ello solamente cuando puede hacerse sin perjuicio de los derechos del acusado. La cuestion, pues, que tenemos que determinar en el presente caso es (1) si la reforma de la contestacion de "no culpable," es o no sustancial; y (2) si dicha reforma puede o no prejudicar los derechos del acusado. No cabe duda de que la enmienda en cuestion es sustancial, de fondo. Evidentemente el Fiscal reformo la querella, en el sentido de incluir como acusados a Conrado Maalac y Wenceslao Cruz y alegando que estos conspiraron con el recurrente, Ceferino Regala, para cometer el delito de asesinato, a fin de poder pedir inmediatamente el sobreseimiento de la causa contra los nuevos acusados y utilizarlos como testigos de cargo contra dicho Regala. Efectivamente, esto fue lo que hizo el fiscal, y en consecuencia el juzgado ordeno el sobreseimiento pedido decretando la libeberacion de los nuevos acusados y habilitandolos de esta manera para ser testigos de la acusacion. No es dificil maginarse la situacion del Fiscal. Sin los nuevos acusados como testigos de cargo, probablemente tuviera un caso muy flojo contra Regala. Esto, por un lado. Por otro, se debe presumir que Conrado Manalac y Wenceslao Cruz no estarian dispuestos a delarar a favor de la acusacoin incriminandose a si mismos, a menos que fuesen liberados prenviamente de toda responsibilidad al tenor del articulo 9, Regla 115, del Reglamento de los Tribunales. De ahi que el Fiscal se haya visto obligado a reformar la querella en el sentido indicato. Como ha de ser, pues, de mera forma una enmienda que cambia tan radicalmente las posiciones juridicas respectivas del acusado y de la prosecucion? Que la enmienda es perjudicial a los derechos del recurrente, es cosa salta a la vista. Por virtud de esa enmienda, que permite al Fiscal amparar a Maalac y Cruz con la coraza de la inmunidad, el recurrente tiene ahora que encararse con dos testigos que pueden pesar decisivamente en el resultado de la causa contra el.

Se arguye, sin embargo, que el remedio procedente no es el certiorari, sino la apelacion, cuando la causa se termine de modo adverso al acusado. Creo que esto es un error. Es doctrina firmemente establecida que el certiorari procede, aun cuando sea factible la apelacion, cuando esta no ofrece un remedio expedito y adecuando. Tal es el caso que nos ocupa. El abuso de discrecion cometido por el tribunal inferior puede afectar y trastornar radicalmente el plan de defensa del acusado; asi que le interesa a este prevenir el dao antes de que ocurra, y esto solamente se puede conseguir por medio de un recurso rapido y eficaz el certiorari. La apelacion seria, a lo mas, un remedio curativo, pero tardio, cuando el dao a los derechos del acusado ya se habria consumado, acaso irreparablemente. Entre ambas terapeuticas-la preventiva y la curativala primera es indudablemente la mejor, no solo en medicina, sino en todos los ordenes de la vida. Creo, pues, que el remedio solicitado debe concederse.

The Lawphil Project - Arellano Law Foundation

Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. No. 90762 May 20, 1991 LEYTE ACTING VICE-GOVERNOR AURELIO D. MENZON, petitioner, vs. LEYTE ACTING GOVERNOR, LEOPOLDO E. PETILLA in his capacity as Chief Executive of the Province of Leyte and Head of SANGGUNIANG PANLALAWIGAN and Leyte Provincial Treasurer FLORENCIO LUNA, respondents. Zozimo G. Alegre for petitioner. The Provincial Attorney for respondents. RESOLUTION

GUTIERREZ, JR., J.:p This is a motion for reconsideration of the resolution of the Court dated August 28, 1990 which initially denied the petition for certiorari and mandamus filed by then Acting ViceGovernor of Leyte, Aurelio D. Menzon. In the August 28 resolution, the Court stated that Mr. Menzon cannot successfully assert the right to be recognized as Acting ViceGovernor and, therefore, his designation was invalid. In this motion, the primary issue is the right to emoluments while actually discharging the duties of the office. The facts of the case are as follows: On February 16, 1988, by virtue of the fact that no Governor had been proclaimed in the province of Leyte, the Secretary of Local Government Luis Santos designated the Vice-Governor, Leopoldo E. Petilla as Acting Governor of Leyte. On March 25, 1988 the petitioner Aurelio D. Menzon, a senior member of the Sangguniang Panlalawigan was also designated by Secretary Luis Santos to act as the Vice-Governor for the province of Leyte. The petitioner took his oath of office before Senator Alberto Romulo on March 29, 1988. On May 29, 1989, the Provincial Administrator, Tente U. Quintero inquired from the Undersecretary of the Department of Local Government, Jacinto T. Rubillar, Jr., as to the legality of the appointment of the petitioner to act as the Vice-Governor of Leyte. In his reply letter dated June 22, 1989, Undersecretary Jacinto T. Rubillar, Jr. stated that since B.P. 337 has no provision relating to succession in the Office of the ViceGovernor in case of a temporary vacancy, the appointment of the petitioner as the temporary Vice- Governor is not necessary since the Vice-Governor who is temporarily performing the functions of the Governor, could concurrently assume the functions of both offices. As a result of the foregoing communications between Tente U. Quintero and Jacinto T. Rubillar, Jr., the Sangguniang Panlalawigan, in a special session held on July 7, 1989, issued Resolution No. 505 where it held invalid the appointment of the petitioner as acting Vice-Governor of Leyte. The pertinent portion of the resolution reads:
WHEREAS, the circumstances obtaining at present in the Office of the Vice-Governor is that there is no permanent (sic) nor a vacancy in said office. The Honorable Leopoldo E. Petilla assumed the Office of the Vice-Governor after he took his oath of office to said position. WHEREAS, it is the duty of the members of the Board not only to take cognizance of the aforesaid official communication of the Undersecretary, Jacinto T. Rubillar, Jr., but also to uphold the law.

WHEREAS, on motion of the Honorable Macario R. Esmas, Jr., duly seconded by the Honorable Rogelio L. Granados and the Honorable Renato M. Rances. RESOLVED, as it is hereby resolved not to recognize Honorable Aurelio D. Menzon as Acting Vice-Governor of Leyte. (Rollo, p. 27)

The petitioner, on July 10, 1989, through the acting LDP Regional Counsel, Atty. Zosimo Alegre, sought clarification from Undersecretary Jacinto T. Rubillar, Jr. regarding the June 22, 1989 opinion. On July 12, 1989, Undersecretary Jacinto T. Rubillar replied and explained his opinion. The pertinent portion of the letter reads:
This has reference to your letter dated July 10, 1989, requesting for clarification of our letter to Provincial Administrator Tente U. Quintero dated June 22, 1989, which states in substance, that "there is no succession provided for in case of temporary vacancy in the office of the vice-governor and that the designation of a temporary vice-governor is not necessary. We hold the view that the designation extended by the Secretary of Local Government in favor of one of the Sangguniang Panlalawigan Members of Leyte to temporarily discharge the powers and duties of the vice-governor during the pendency of the electoral controversy in the Office of the Governor, does not contradict the stand we have on the matter. The fact that the Sangguniang Panlalawigan member was temporarily designated to perform the functions of the vice-governor could not be considered that the Sangguniang member succeeds to the office of the latter, for it is basic that designation is merely an imposition of additional duties to be performed by the designee in addition to the official functions attached to his office. Furthermore, the necessity of designating an official to temporarily perform the functions of a particular public office, would depend on the discretion of the appointing authority and the prevailing circumstances in a given area and by taking into consideration the best interest of public service. On the basis of the foregoing and considering that the law is silent in case of temporary vacancy, in the Office of the Vice-Governor, it is our view that the peculiar situation in the Province of Leyte, where the electoral controversy in the Office of the Governor has not yet been settled, calls for the designation of the Sangguniang Member to act as vicegovernor temporarily. (Rollo, p. 31)

In view, of the clarificatory letter of Undersecretary Rubillar, the Regional Director of the Department of Local Government, Region 8, Resurreccion Salvatierra, on July 17, 1989, wrote a letter addressed to the Acting-Governor of Leyte, Leopoldo E. Petilla, requesting the latter that Resolution No. 505 of the Sangguniang Panlalawigan be modified accordingly. The letter states:
In view thereof, please correct previous actions made by your office and those of the Sangguniang Panlalawigan which may have tended to discredit the validity of Atty. Aurelio Menzon's designation as acting vice-governor, including the payment of his salary as Acting Vice-Governor, if he was deprived of such. (Rollo, p. 32)

On August 3, 1989, the Regional Director wrote another letter to Acting-Governor Petilla, reiterating his earlier request.

Despite these several letters of request, the Acting Governor and the Sangguniang Panlalawigan, refused to correct Resolution No. 505 and correspondingly to pay the petitioner the emoluments attached to the Office of Vice-Governor. Thus, on November 12, 1989, the petitioner filed before this Court a petition for certiorari and mandamus. The petition sought the nullification of Resolution No. 505 and for the payment of his salary for his services as the acting Vice-Governor of Leyte. In the meantime, however, the issue on the governorship of Leyte was settled and Adelina Larrazabal was proclaimed the Governor of the province of Leyte. During the pendency of the petition, more particularly on May 16, 1990, the provincial treasurer of Leyte, Florencio Luna allowed the payment to the petitioner of his salary as acting Vice-Governor of Leyte in the amount of P17,710.00, for the actual services rendered by the petitioner as acting Vice-Governor. On August 28, 1990, this Court dismissed the petition filed by Aurelio D. Menzon. On September 6, 1990, respondent Leopoldo Petilla, by virtue of the above resolution requested Governor Larrazabal to direct the petitioner to pay back to the province of Leyte all the emoluments and compensation which he received while acting as the ViceGovernor of Leyte. On September 21, 1990, the petitioner filed a motion for reconsideration of our resolution. The motion prayed that this Court uphold the petitioner's right to receive the salary and emoluments attached to the office of the Vice-Governor while he was acting as such. The petitioner interposes the following reason for the allowance of the motion for reconsideration:
THAT THE PETITIONER IS ENTITLED TO THE EMOLUMENTS FOR HIS SERVICES RENDERED AS DESIGNATED ACTING VICE-GOVERNOR UNDER THE PRINCIPLES OF GOOD FAITH. SIMPLE JUSTICE AND EQUITY.

The controversy basically revolves around two issues: 1) Whether or not there was a vacancy?; and 2) Whether or not the Secretary of Local Government has the authority to make temporary appointments? The respondents argue that there exists no vacancy in the Office of the Vice-Governor which requires the appointment of the petitioner. They further allege that if indeed there was a need to appoint an acting Vice-Governor, the power to appoint is net vested in the Secretary of Local Government. Absent any provision in the Local Government Code on the mode of succession in case of a temporary vacancy in the Office of the Vice-Governor, they claim that this constitutes an internal problem of the Sangguniang Panlalawigan and was thus for it solely to resolve.

The arguments are of doubtful validity. The law on Public Officers is clear on the matter. There is no vacancy whenever the office is occupied by a legally qualified incumbent. A sensu contrario, there is a vacancy when there is no person lawfully authorized to assume and exercise at present the duties of the office. (see Stocking v. State, 7 Ind. 326, cited in Mechem. A Treatise on the Law on Public Offices and Officers, at p. 61) Applying the definition of vacancy to this case, it can be readily seen that the office of the Vice-Governor was left vacant when the duly elected Vice-Governor Leopoldo Petilla was appointed Acting Governor. In the eyes of the law, the office to which he was elected was left barren of a legally qualified person to exercise the duties of the office of the Vice-Governor. There is no satisfactory showing that Leopoldo Petilla, notwithstanding his succession to the Office of the Governor, continued to simultaneously exercise the duties of the Vice-Governor. The nature of the duties of a Provincial Governor call for a full-time occupant to discharge them. More so when the vacancy is for an extended period. Precisely, it was Petilla's automatic assumption to the acting Governorship that resulted in the vacancy in the office of the Vice-Governor. The fact that the Secretary of Local Government was prompted to appoint the petitioner shows the need to fill up the position during the period it was vacant. The Department Secretary had the discretion to ascertain whether or not the Provincial Governor should devote all his time to that particular office. Moreover, it is doubtful if the Provincial Board, unilaterally acting, may revoke an appointment made by a higher authority. Disposing the issue of vacancy, we come to the second issue of whether or not the Secretary of Local Government had the authority to designate the petitioner. We hold in the affirmative. The Local Government Code is silent on the mode of succession in the event of a temporary vacancy in the Office of the Vice-Governor. However, the silence of the law must not be understood to convey that a remedy in law is wanting. The circumstances of the case reveal that there is indeed a necessity for the appointment of an acting Vice-Governor. For about two years after the governatorial elections, there had been no de jure permanent Governor for the province of Leyte, Governor Adelina Larrazabal, at that time, had not yet been proclaimed due to a pending election case before the Commission on Elections. The two-year interregnum which would result from the respondents' view of the law is disfavored as it would cause disruptions and delays in the delivery of basic services to the people and in the proper management of the affairs of the local government of Leyte. Definitely, it is incomprehensible that to leave the situation without affording any remedy was ever intended by the Local Government Code.

Under the circumstances of this case and considering the silence of the Local Government Code, the Court rules that, in order to obviate the dilemma resulting from an interregnum created by the vacancy, the President, acting through her alter ego, the Secretary of Local Government, may remedy the situation. We declare valid the temporary appointment extended to the petitioner to act as the Vice-Governor. The exigencies of public service demanded nothing less than the immediate appointment of an acting Vice-Governor. The records show that it was primarily for this contingency that Undersecretary Jacinto Rubillar corrected and reconsidered his previous position and acknowledged the need for an acting Vice-Governor. It may be noted that under Commonwealth Act No. 588 and the Revised Administrative Code of 1987, the President is empowered to make temporary appointments in certain public offices, in case of any vacancy that may occur. Albeit both laws deal only with the filling of vacancies in appointive positions. However, in the absence of any contrary provision in the Local Government Code and in the best interest of public service, we see no cogent reason why the procedure thus outlined by the two laws may not be similarly applied in the present case. The respondents contend that the provincial board is the correct appointing power. This argument has no merit. As between the President who has supervision over local governments as provided by law and the members of the board who are junior to the vice-governor, we have no problem ruling in favor of the President, until the law provides otherwise. A vacancy creates an anomalous situation and finds no approbation under the law for it deprives the constituents of their right of representation and governance in their own local government. In a republican form of government, the majority rules through their chosen few, and if one of them is incapacitated or absent, etc., the management of governmental affairs to that extent, may be hampered. Necessarily, there will be a consequent delay in the delivery of basic services to the people of Leyte if the Governor or the Vice-Governor is missing. Whether or not the absence of a Vice-Governor would main or prejudice the province of Leyte, is for higher officials to decide or, in proper cases, for the judiciary to adjudicate. As shown in this case where for about two years there was only an acting Governor steering the leadership of the province of Leyte, the urgency of filling the vacancy in the Office of the Vice-Governor to free the hands of the acting Governor to handle provincial problems and to serve as the buffer in case something might happen to the acting Governor becomes unquestionable. We do not have to dwell ourselves into the fact that nothing happened to acting Governor Petilla during the two-year period. The contingency of having simultaneous vacancies in both offices cannot just be set aside. It was best for Leyte to have a full-time Governor and an acting Vice-Governor. Service to the public is the primary concern of those in the government. It is a continuous duty unbridled by any political considerations.

The appointment of the petitioner, moreover, is in full accord with the intent behind the Local Government Code. There is no question that Section 49 in connection with Section 52 of the Local Government Code shows clearly the intent to provide for continuity in the performance of the duties of the Vice-Governor. The Local Government Code provides for the mode of succession in case of a permanent vacancy, viz: Section 49:
In case a permanent vacancy arises when a Vice-Governor assumes the Office of the Governor, . . . refuses to assume office, fails to qualify, dies, is removed from office, voluntary resigns or is otherwise permanently incapacitated to discharge the functions of his office the sangguniang panlalawigan . . . member who obtained the highest number of votes in the election immediately preceding, . . . shall assume the office for the unexpired term of the Vice-Governor. . . .

By virtue of the surroundings circumstance of this case, the mode of succession provided for permanent vacancies may likewise be observed in case of a temporary vacancy in the same office. In this case, there was a need to fill the vacancy. The petitioner is himself the member of the Sangguniang Panlalawigan who obtained the highest number of votes. The Department Secretary acted correctly in extending the temporary appointment. In view of the foregoing, the petitioner's right to be paid the salary attached to the Office of the Vice Governor is indubitable. The compensation, however, to be remunerated to the petitioner, following the example in Commonwealth Act No. 588 and the Revised Administrative Code, and pursuant to the proscription against double compensation must only be such additional compensation as, with his existing salary, shall not exceed the salary authorized by law for the Office of the Vice-Governor. And finally, even granting that the President, acting through the Secretary of Local Government, possesses no power to appoint the petitioner, at the very least, the petitioner is a de facto officer entitled to compensation. There is no denying that the petitioner assumed the Office of the Vice-Governor under color of a known appointment. As revealed by the records, the petitioner was appointed by no less than the alter ego of the President, the Secretary of Local Government, after which he took his oath of office before Senator Alberto Romulo in the Office of Department of Local Government Regional Director Res Salvatierra. Concededly, the appointment has the color of validity. The respondents themselves acknowledged the validity of the petitioner's appointment and dealt with him as such. It was only when the controversial Resolution No. 505 was passed by the same persons who recognized him as the acting Vice-Governor that the validity of the appointment of the petitioner was made an issue and the recognition withdrawn.

The petitioner, for a long period of time, exercised the duties attached to the Office of the Vice-Governor. He was acclaimed as such by the people of Leyte. Upon the principle of public policy on which the de facto doctrine is based and basic considerations of justice, it would be highly iniquitous to now deny him the salary due him for the services he actually rendered as the acting Vice-Governor of the province of Leyte. (See Cantillo v. Arrieta, 61 SCRA 55 [1974]) WHEREFORE, the COURT hereby GRANTS the motion for reconsideration. The additional compensation which the petitioner has received, in the amount exceeding the salary authorized by law for the position of Senior Board Member, shall be considered as payment for the actual services rendered as acting Vice-Governor and may be retained by him. SO ORDERED. Fernan C.J., Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Grio-Aquino, Medialdea, Regalado and Davide, Jr., JJ., concur. The Lawphil Project - Arellano Law Foundation

Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. No. 122197 June 26, 1998 ZOSIMO M. DIMAANDAL, petitioner, vs. COMMISSION ON AUDIT, respondent.

MARTINEZ, J.: This petition for certiorari seeks the reversal of the decision of the Commission on Audit dated September 7, 1995, 1 the dispositive portion of which reads, to wit:

Foregoing premises considered, the instant appeal cannot be given due course. Accordingly, the disallowance in question in the total amount of P52,908.00 is hereby affirmed. Considering that the claim for the RATA differential in the amount of P8,400.00 is devoid of any legal basis, the same is also disallowed. Hence, appellant Zosimo M. Dimaandal is hereby directed to refund the salary and RATA differential in the amount of P61,308.00 he had received from the Provincial Government of Batangas. 2

The undisputed facts: On November 23, 1992, petitioner Zosimo M. Dimaandal, then holding the position of Supply Officer III, was designated Acting Assistant Provincial Treasurer for Administration by then Governor Vicente A. Mayo of Batangas. Pursuant to the designation, petitioner filed a claim for the difference in salary and Representation and Transportation Allowance (RATA) of Assistant Provincial Treasurer and Supply Officer III for the whole year of 1993 in the total amount of P61,308.00. However, the Provincial Auditor disallowed in audit P52,908.00 of the claim. What was allowed was only the amount of P8,400.00 which corresponds to the difference in the allowances attached to the designation and the position occupied by the appellant. The disallowances was premised on the following reasons:
1. The provisions of Section 2077 of the Revised Administrative Code is not applicable in the instant case as the power to fill the position of Assistant Provincial Treasurer rests on the Secretary of Finance. 2. The designation is temporary in nature and does not amount to the issuance of an appointment as could entitle the designee to receive the salary of the position to which he is designated (Opinion of the Director, Office for Legal Affairs, Civil Service Commission dated January 25, 1994).

On August 3, 1994, Governor Mayo wrote to the Provincial Auditor requesting reconsideration of the subject disallowance, interposing the following reasons:
1. That Section 2077 of the Revised Administrative Code is applicable in the instant case as the same provides that the Governor General or the officer having the power to fill-up a temporary absence or disability in the provincial office has the power to order or authorize payment of compensation to any government officer or employee designated or appointed temporarily to fill the place; 2. That the budget containing an appropriation for the position of Assistant Provincial Treasurer for Administration was already approved by the Provincial Board; and 3. That Mr. Dimaandal at the time of his designation as Acting Provincial Treasurer for Administration was no longer performing the duties and functions of Supply Officer III.

The Provincial Auditor, however, denied the request for reconsideration. Appellant was required to refund the amount of P52,908.00 which was disallowed. Petitioner appealed to the respondent Commission on Audit which sustained the stand of the Provincial Auditor of Batangas as valid and proper. The respondent Commission

was of the view that the petitioner was merely designated as an Assistant Provincial Treasurer for Administration in addition to his regular duties. As such, he is not entitled to receive an additional salary. The Commission further opined that petitioner was likewise not entitled to receive the difference in RATA provided for under the Local Budget Circular issued by the Department of Budget and Management considering that the party designating him to such position is not the "duly competent authority," provided for under Section 471 of the Local Government Code. Notably, petitioner was appointed as Assistant Provincial Treasurer for Administration by the Secretary of Finance only on July 8, 1994. Thus, the respondent Commission not only affirmed the disallowance of the amount of P52,908.00 but likewise disallowed the claim for the RATA differential in the amount of P8,400.00, for being devoid of any legal basis. Petitioner was, therefore, directed to refund the salary and RATA differential in the amount of P61,308.00. Hence, this petition. The issue here is whether or not an employee who is designated in an acting capacity is entitled to the difference in salary between his regular position and the higher position to which he is designated. Petitioner avers that the respondent Commission's decision is "probably not in accordance with applicable decisions of the Supreme Court." 3 He cites the cases of Cui, et. al. vs. Ortiz, et. al., 4 April 29, 1960; and, Menzon vs. Petilla, May 20, 1991, 5 which laid down the rule that de facto officers are entitled to salary for services actually rendered. Petitioner contends that he may be considered as a de facto officer by reason of services rendered in favor of the Province of Batangas. He then posits the view that to disallow his compensation and in the process allow the Province of Batangas to keep and enjoy the benefits derived from his services actually rendered would be tantamount to deprivation of property without due process of law, and impairment of obligation of contracts duly enshrined in the Constitution. On the other hand, the respondent Commission, through the Office of the Solicitor General, maintains that decisions cited by petitioner do not find application in petitioner's case. In the case of Menzon, what was extended was an appointment to the vacant position of Vice-Governor. Here, what was extended to petitioner was not appointment but a mere designation. Thus, the nature of petitioner's designation and in the absence of authority of the Governor to authorize the payment of the additional salary and RATA without the appropriate resolution from the Sangguniang Panlalawigan does not make the ruling on de facto officers applicable in this case. We find the petition to be without merit. We are not persuaded by petitioner's insistence that he could still claim the salary and RATA differential because he actually performed the functions pertaining to the office of Acting Assistant Provincial Treasurer and, therefore, entitled to the salary and benefits

attached to it despite the fact that the Governor of Batangas had no authority to designate him to the said position. The law applicable is Section 471(a) of RA 7160 otherwise known as the Local Government Code which mandates that:
Sec. 471. Assistant Treasurers. (a) An Assistant treasurer may be appointed by the Secretary of Finance from a list of at least three (3) ranking eligible recommendees of the governor or mayor, subject to civil service law, rules and regulations. xxx xxx xxx

In fact, the appointing officer is authorized by law to order the payment of compensation to any government officer or employee designated or appointed to fill such vacant position, as provided under Section 2077 of the Revised Administrative Code which states that:
Sec. 2077. Compensation for person appointed to temporary service. xxx xxx xxx In case of the temporary absence or disability of a provincial officer or in case of a vacancy in a provincial office, the President of the Philippines or officer having the power to fill such position may, in his discretion, order the payment of compensation, or additional compensation, to any Government officer or employee designated or appointed temporarily to fill the place, but the total compensation paid shall not exceed the salary authorized by law for the position filled.

Undoubtedly, the aforecited laws do not authorize the Provincial Governor to appoint nor even designate one temporarily in cases of temporary absence or disability or a vacancy in a provincial office. That power resides in the President of the Philippines or the Secretary of Finance. Necessarily, petitioner's designation as Assistant Provincial Treasurer for Administration by Governor Mayo Being defective, confers no right on the part of petitioner to claim the difference in the salaries and allowances attached to the position occupied by him. Moreover, what was extended to petitioner by Governor Mayo was merely a designation not an appointment. The respondent Commission clearly pointed out the difference between an appointment and designation, thus:
There is a great difference between an appointment and designation. While an appointment is the selection by the proper authority of an individual who is to exercise the powers and functions of a given office, designation merely connotes an imposition of additional duties, usually by law, upon a person already in the public service by virtue of an earlier appointment (Santiago vs. COA, 199 SCRA 125). Designation is mere imposition of new or additional duties on the officer or employee to be performed by him in a special manner. It does not entail payment of additional benefits or grant upon the person so designated the right to claim the salary attached to the

position (COA Decision NO. 95-087 dated February 2, 1995). As such, there being no appointment issued, designation does not entitle the officer designated to receive the salary of the position. For the legal basis of an employee's right to claim the attached thereto is a duly issued and approved appointment to the position (Opinion dated January 25, 1994 of the Office for Legal Affairs, Civil Service Commission, Re: Evora, Carlos, A. Jr., Designation). 6

This Court has time and again ruled that:

Although technically not binding and controlling on the courts, the construction given by the agency or entity charged with the enforcement of a statute should be given great weight and respect (In re Allen, 2 Phil. 630, 640), particularly so if such construction, as in the case at bar, has been uniform, and consistent, and has been observed and acted on for a long period of time (Molina vs. Rafferty, 38 Phil. 167; Madrigal vs. Rafferty, 38 Phil. 414; Philippine Sugar Central vs. Collector of Customs, 51 Phil. 143). 7

We see no justifiable reason to sustain petitioner's argument that non-payment of his salary differential and RATA would be a violation of his constitutional right against deprivation of property without due process of law and the non-impairment of obligation of contracts clause in the Constitution. The right to the salary of an Assistant Provincial Treasurer is based on the assumption that the appointment or designation thereof was made in accordance with law. Considering that petitioner's designation was without color of authority, the right to the salary or an allowance due from said office never existed. Stated differently, in the absence of such right, there can be no violation of any constitutional right nor an impairment of the obligation of contracts clause under the Constitution. The nature of petitioner's designation and the absence of authority of the Governor to authorize the payment of the additional salary and RATA without the appropriate resolution from the Sangguniang Panlalawigan does not make him a de facto officer. A de facto officer is defined as one who derives his appointment from one having colorable authority to appoint, if the office is an appointive office, and whose appointment is valid on its face. It is likewise defined as one who is in possession of an office, and is discharging its duties under color of authority, by which is meant authority derived from an appointment, however irregular or informal, so that the incumbent be not a mere volunteer. 8 Then a de facto officer is one who is in possession of an office in the open exercise of its functions under color of an election or an appointment, even though such election or appointment may be irregular. 9 Petitioner invokes in his favor the ruling in Menzon vs. Petilla, 10 that a de facto officer is entitled to receive the salary for services actually rendered. However, his reliance on the Menzon case is misplaced. In Menzon, what was extended was an appointment to the vacant position of Vice-Governor, in petitioner's case, he was designated. The appointment of Menzon had the color of validity. This Court said:

And finally, even granting that the President, acting through the Secretary of Local Government, possesses no power to appoint the petitioner, at the very least, the petitioner is a de facto officer entitled to compensation. There is no denying that the petitioner assumed the Office of the Vice-Governor under a color of a known appointment. As revealed by the records, the petitioner was appointed by no less than the alter ego of the President, The Secretary of Local Government, after which he took his oath of office before Senator Alberto Romulo in the Office of Department of Local Government Regional Director Res Salvatierra. Concededly, the appointment has the color of validity.

Likewise, the doctrine in Cui, et. al. vs. Ortiz, et. al. 11 does not apply in petitioner's case. In Cui, this Court held:
Petitioners' appointment on December 1 and 12, 1955 by the then mayor of the municipality were legal and in order, the appointing mayor still in possession of his right to appoint. For such appointment to be complete, the approval of the President of the Philippines is required. The law provides that pending approval of said appointment by the President, the appointee may assume office and receive salary for services actually rendered. Accordingly, therefore, in that duration until the appointment is finally acted upon favorably or unfavorably, the appointees may be considered as "de facto" officers and entitled to salaries for services actually rendered.

Finally, the appointment signed by Finance Undersecretary Juanita D. Amatong is dated July 8, 1994. Petitioner's claim that the appointment retro-acts to his assumption of office is not confirmed by the express phraseology of the appointment itself, which states:
Kayo ay nahirang na ASSISTANT PROVINCIAL TREASURER FOR ADMINISTRATION na may katayuang PERMANENT sa OFFICE OF THE PROVINCIAL TREASURER OF BATANGAS sa pasahod na ONE HUNDRED TWENTY ONE THOUSAND SIX HUNDRED TWENTY (P121,620.00) P.A. piso. Ito ay magkakabisa sa petsa ng pagganap ng tungkulin subalit di aaga sa petsa ng pagpirma ng puno ng tanggapan o appointing authority. 12

The subsequent appointment of petitioner to the position on July 8, 1994, cannot justify petitioner's retention of the excess amount of P61,308.00, which corresponds to the amount disallowed and ordered refunded by COA representing the salary and RATA in excess of what was due him in 1993. WHEREFORE, premises considered, the petition is hereby DISMISSED for lack of merit. SO ORDERED. Narvasa, C.J., Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing and Purisima, JJ., concur. Footnotes
1 COA Decision No. 95-467.

2 Annex "A," Petition, rollo, pp. 16-19. 3 P. 5, Petition. 4 G.R. No. l-13753. 5 197 SCRA 253. 6 COA Decision, Annex "A," Petition, pp. 16-19, rollo. 7 Animos vs. Philippine Veterans Affairs Office, 174 SCRA 214, 218. 8 Philippine Law Dictionary, p. 162. 9 People vs. Gabitanan, 43 OG 3211; 8 App. Ct. Rep. 623. 10 197 SCRA 253. 11 107 Phil. 1000. 12 Annex "B," Petiton, rollo, p. 20.

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