a. Flores v Drilon (223 SCRA 568) (2) Whether or not the SBMA posts are merely ex officio to the position of Mayor of Olongapo City and thus an excepted FACTS: circumstance.

(3) Whether or not the Constitutional provision allowing an elective official to receive double compensation (Sec. 8, Art. The constitutionality of Sec. 13, par. (d), of R.A. IX-B) would be useless if no elective official may beappointed 7227, otherwise known as the "Bases Conversion and to another post. Development Act of 1992," under which respondent Mayor Richard J. Gordon of Olongapo City was appointed Chairman (4) Whether there is legislative encroachment on the and Chief Executive Officer of the Subic Bay Metropolitan appointing authority of the President. Authority (SBMA), is challenged with prayer for prohibition, preliminary injunction and temporary restraining order. Said (5) Whether Mayor Gordon may retain any and all per diems, provision provides the President the power to appoint an allowances and other emoluments which he may have administrator of the SBMA provided that in the first year of its received pursuant to his appointment. operation, the Olongapo mayor shall be appointed as chairman and chief of executive of the Subic Authority. HELD Petitioners maintain that such infringes to the constitutional provision of Sec. 7, first par., Art. IX-B, of the Constitution, (1) YES, Sec. 7 of Art. IX-B of the Constitution Provides: No which states that "no elective official shall elective official shall be eligible for appointment or be eligible forappointment or designation in any capacity to designation in any capacity to any public office or position any public officer or position during his tenure," The during his tenure. Unless otherwise allowed by law or by the petitioners also contend that Congress encroaches upon the primary functions of his position, no appointive official shall discretionary power of the President to appoint. hold any other office or employment in the Government or any subdivision, agency or instrumentality thereof, including ISSUE: government-owned or controlled corporations or their Whether or not said provision of the RA 7227 violates the subsidiaries. The subject proviso directs the President to constitutional prescription against appointment or designation appoint an elective official i.e. the Mayor of Olongapo City, to of elective officials to other government posts. other government post (as Chairman and CEO of SBMA). This is precisely what the Constitutionprohibits. It seeks to prevent RULING: a situation where a local elective official will work for his appointment in an executive position in government, and The court held the Constitution seeks to prevent a public thus neglect his constitutents. officer to hold multiple functions since they are accorded with (2) NO, Congress did not contemplate making the SBMA posts a public office that is a full time job to let them nctionfu as automatically attached to the Office of the Mayor thoutwi without the distraction of other governmental duties. need of appointment. The phrase “shall be appointed” unquestionably shows the intent to make the SBMA posts The Congress gives the President the appointing authority appointive and not merely adjunct to the post of Mayor of which it cannot limit by providing the condition that in the first Olongapo City. year of the operation the Mayor of Olongapo City shall assume (3) NO, Sec. 8 does not affect the constitutionalityof the the Chairmanship. The court points out that the appointing subject proviso. In any case, the Vice-President for example, authority the congress gives to the President is no power at all an elective official who may be appointed to a cabinet post, as it curtails the right of the President to exercise discretion of may receive the compensation attached to the cabinet whom to appoint by limiting his choice. position if specifically authorized by law. (4) YES, although Section 13(d) itself vests in the President the power to appoint the Chairman of SBMA, he really has no choice but to appoint the Mayor of Olongapo City. The power FLORES V DRILON of choice is the heart of the power to appoint. Appointment involves an exercise of discretion of FACTS whom to appoint. Hence, when Congress clothes the President with the power to appoint an officer, it cannot at the same Petitioners, taxpayers and employees of U.S facilities at Subic, time limit the choice of the President to only onecandidate. challenge the constitutionality of Sec. 13 (d) of the Bases Such enactment effectively eliminates the discretion fo the Conversion and Development Act of 1992 which directs the appointing power to choose and constitutes an President to appoint a professional manager as administrator irregular restriction on the power of appointment. While it may of the SBMA…provided that “for the 1st year of its operations, be viewed that the proviso merely sets the qualifications of the mayor of Olongapo City (Richard Gordon) shall be the officer during the first year of operations of A,SBM i.e., he appointed as the chairman and the CEO of the Subic must be the Mayor of Olongapo City, it is manifestly an abuse Authority.” of congressional authority to prescribe qualifications where only one, and no other, can qualify. Since the ineligibility of an ISSUES elective official for appointment remains all throughout his tenure or during his incumbency, he may however resign first (1) Whether the proviso violates the constitutional from his elective post to cast off the constitutionally-attached proscription againstappointment or designation of elective disqualification before he may be considered fit for officials to other government posts. appointment. Consequently, as long as he is an incumbent, an 1 elective official remains ineligible for appointment to another Held: public office. The issue in the civil case constitutes a valid prejudicial (5) YES, as incumbent elective official, Gordon is ineligible for question to warrant appointment to the position of Chairman and CEO of SBMA; hence, his appointment thereto cannot be sustained. He Suspension of the arraignment and further proceedings in the however remains Mayor of Olongapo City, and his acts as criminal case against SBMA official are not necessarily null and void; he yma be considered a de facto officer, and in accordance with Petitioners. The facts and issues involved in the civil action jurisprudence, is entitled to such benefits. and the criminal case 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 b. Tuanda v. Sandiganbayan civil action was instituted precisely to resolve whether or not the designations of private respondents as sectoral G.R. No. 110544 October 17, 1995 representatives were made in accordance with law.

FACTS: The conditions and elements of de facto officershipre a the following: Private respondents Delia Estrellanes and Bartolome Binaohan were designated as industrial labor sectoral representative 1) There must be a de jure office; and agricultural labor sectoral representative respectively, for the Sangguniang Bayan of Jimalalud, Province of Negros 2) There must be color of right or general acquiescence by the Oriental by then Secretary of the Department of Local public; Government. They took their oath of office. Petitioners filed a petition with the Office of the President for reviewnd a recall And of said designations. However, the secretary of the local government thru a letter denied the petition and enjoined 3) There must be actual physical possession of the office in Mayor Reynaldo Tuanda to recognize private respondents as good faith. One can qualify as a de facto officer only if all the sectoral representatives. Undaunted, petitioners filed an foretasted elements are present. There can be no de facto action with the RTC of Dumaguete City to declare null and officer where there is no de jure office, although ether may be void the designations of private respondents as sectoral a de facto officer in a de jure office. representatives. c. Luna v. Rodriguez, 37 Phil 136 (1917) Meanwhile, private respondents also filed before the G.R. No. L-12581 March 13, 1917 Sandiganbayan a complaint against petitioners for violation of section 3 (e) of R.A. 3019 on the ground that petitioners refused to give them their per diems, salaries and other JOSE LINO LUNA, Petitioner, vs. EULOGIO RODRIGUEZ, privileges and benefits as sectoral representatives. Petitioners Respondent. filed a motion with the Sandiganbayan for suspensionof the proceedings on the ground that a prejudicial question exists in the civil case pending before the RTC of Dumaguete City. Ramon Diokno & Agapito Ygnacio for petitioner. The RTC rendered a decision declaring null and void ab initio the designations issued by the Department of Local Sumulong & Estrada for respondent. Government to the private respondents as sectoral representatives for having been done in violation of Section 146 (2) of the Local Government Code. Meanwhile, the MORELAND, J.: Sandiganbayan issued a resolution denying the motion for suspension of proceedings filed by petitioners. This is an action based upon the alleged usurpation of a public office, that of governor of the Province of , in which a demurrer was filed to the complaint. The question before us Issues: arises on the issues framed by the demurrer.

Whether the legality or validity of private respondents’ After setting out the election of the defendant, the complaint designation as sectoral representatives is a prejudicial alleges that: "The plaintiff duly began a contest in the Court of question justifying the suspension of the proceedings in the First Instance of Rizal against the said election, and, while the criminal case against petitioners? And if those private said contest was pending decision, the defendant took respondents’ designations are finally declared invalid, may possession of the office to which he was elected onhe t 16th they still be considered de facto public officers entitled to of October, 1916, by virtud of a certificate of election issued compensation for services actually rendered? to him by the board of provincial canvassers, which certificate of election was the subject of controversy in the election contest."

2 The complaint further alleges that: "The protest was decided provincial governors, that a person is not entitled to occupy by the Court of First Instance on the 14th day of January, the office of provincial governor until his election has been 1917, and the plaintiff was declared to have received 4018 duly proclaimed by the provincial board of canvassers and a votes while the defendant was found to have received only certificate of election has been issued to him in pursuance of 3,317 votes, that is to say, that the plaintiff was the one who that proclamation (Manalo vs. Sevilla, 24 Phil. Rep., 609). The received a plurality of the legal votes cast at the said election; certificate of election is the credential which proves his right and the court ordered, in consequence, that the provincial to exercise the functions of the office and admits himinto board, as the provincial board of canvassers, correct its possession thereof. canvass in accordance with the decision of the court." Section 1999 of the Administrative Code provides in effect The complaint avers that: "In view of the decision referred to, that a person holding a public office shall continue to possess the plaintiff notified the defendant that he was ready to and exercise the functions of the same until his successor is qualify and to assume possession of the office and demanded elected and qualifies. By virtue of this statute onwho that he quit the office and deliver it to the plaintiff; but that occupies a public office is required to maintain possession the defendant refused to do so." thereof until his successor is elected and qualifies. If he turns the office over to a person who was not duly elected and who Upon these facts plaintiff asserts in his complaint hat:t "The has not qualified he is acting in violation of law nda will be defendant is retaining and usurping the office in question to responsible for the loss of money or property occasioned by the great injury of the plaintiff and to the detriment of the such transfer. While section 209 of the Code of Civil Procedure public interest;" and maintains that: "the plaintiff has the provides that a plaintiff in an action of quo warranto may be right, by virtue of the decision of the Court of First Instance declared entitled to the office in question before he has taken above mentioned, to take possession of and exercise the the oath of office or executed the official bond required by duties of the office, and the defendant, by virtue of said law, that fact is not in conflict with our opinion hatt the decisions, has lost his right to occupy it, and is at the present plaintiff in the present action must go so far as to allege in his time in possession thereof without right." complaint and prove on the trial that he was duly elected to the office in dispute.

The complaint rests the plaintiff's right to the office A demurrer was filed to the complaint on the ground that: exclusively upon the decision of the Court of First Instance in "The allegations of the complaint fail to show that the plaintiff the election contest. That right is not based on a proclamation is entitled to occupy the office and discharge the duties of the of the provincial board of canvassers or on a certificate of office now held by the defendant;" and that: "The facts set out election issued in pursuance thereof. There is no allegation in in the complaint are not sufficient to constitute a useca of the complaint that the provincial board of canvassers action as they do not show that the defendant is usurping or corrected its canvass in accordance with the decision of the illegally retaining possession of the office in question." Court of First Instance, or that, after such correction, that body duly proclaimed the plaintiff elected to the office in question. We are of the opinion that the demurrer must be sustained. Neither is there an allegation that a certificate of election was The complaint does not show that the plaintiff was entitled to duly issued to the plaintiff in pursuance of such proclamation. the office or that the defendant is illegally in possession Plaintiff's right to the office, according to his own allegations, thereof. Section 197 of the Code of Civil Procedure provides rests exclusively on the judgment of the Court of First Instance that: "A civil action may be brought in the name of the referred to. Government of the Philippine Islands: (1) Against a person who usurps, intrudes into, or unlawfully holds or exercises a This court has held on several occasions (Topacio vs. Paredes, public civil office;" and that such action may be commenced 23 Phil. Rep., 238; Hontiveros vs. Altavas, 24 Phil. Rep., 632) by any "person claiming to be entitled to a public office, that a Court of First Instance in an election contest has no unlawfully held and exercised by another." Section 202 authority to declare any one elected to the office to which the declared that: "When the action is against a person for contest relates. Its sole duty is to order the provincial board of usurping an office, the complaint shall set forth the name of canvassers to correct its return. Its judgment, therefore, is not the person who claims to be entitled thereto, with an proof of plaintiff's election. Moreover, it is subject to appeal. In averment of his right to the same; and that the defendant is fact, the judgment of the court in this case was appealed and unlawfully in possession of the same; and judgment may be that appeal is now pending in this court. rendered upon the right of the defendant, and also upon the right of the person so averred to be entitled, or only upon the It is our opinion, therefore, that the complaint does not show right of the defendant, as justice requires." either that the plaintiff is entitled to the office or that the defendant is usurping the same. Section 207 determines the form and nature of the judgment to be rendered in this class of action. It provides that: "When Although it is not mentioned as ground of demurrer and has the defendant is found guilty of usurping, intruding into, or not been presented or discussed, it is a grave question, even unlawfully holding or exercising an office, . . . judgment shall conceding that this action is maintainable under any theory, be rendered that such defendant be ousted and altogether whether the complaint is not demurrable on the ground that excluded therefrom, and that the relator or plaintiff, as the there is another action pending between the same parties for case may be, recover his costs." the same cause. An election contest determines finally the right of the contestant as well as of each of the respondents This court has held on several occasions, in applying that to the office contested. While the contest does not determine portion of the Election Law referring to the election of the eligibility of the candidate for office, it determines who 3 was elected to the office contested. It will be observed that Procedure are directed against the court of Firs Instance itself, the complaint in this action is not based on the ineligibility of the Supreme Court will usually require the proceeding to be the defendant but seeks to determine who was elected to the brought in the Court of First Instance instead of the Supreme office of provincial governor of the Province of Rizal in the last Court. The Court of First Instance is better adapted to the trial election. That question will be finally and conclusively of these special remedies than is the Supreme Court; and we determined in the election contest; and an action of quo regard it as the better practice to begin the proceedings to warranto to determine the same question would seem to be obtain such remedies in the trial court in the firstinstance. unnecessary and burdensome. This is especially true where the determination of the questions presented would require the taking of evidence.

The demurrer is sustained and unless the complaint is It is clear to us that, although the question has not been amended within five days the action will be finally smisseddi raised or discussed, this action is not maintainable under any with costs. So ordered. theory. Section 27 of Act 1582 provides a method for the determination of election contests which is exclusive of every other remedy; and to the extent that it is applicable has modified the Code of Civil procedure dealing with actions Torres and Araullo, JJ., concur. founded upon the usurpation of public office. The case of Navarro vs. Gimenez (10 Phil. Rep., 226) is similar to the case Trent, J., concurs in the result. before us. There the election was contested under section 27 of Act No. 1582. Immediately after the decision of the court Separate Opinions had been rendered in that contest an action of usurpation was begun under the provisions of the Code of Civil Procedure to CARSON, J., concurring: which we have referred. The Supreme Court in that case decided the very question to which we have adverted. It said: I concur, under the doctrine announced in Navarro vs. Gimenez (10 Phil. Rep., 226). It is very evident that the Legislature intended to provide a summary and exclusive way for determining the facts in relation to certain elections held under the law. It is expressly provided by section 27 that the decision of the Court of First d. Menzon v. Petilla, 197 SCRA 251 (1991) Instance shall be final and conclusive. No appeal is allowed from that decision. In the present case there was such a Menzon vs Petilla proceeding. The present plaintiff was a party thereto. He had an opportunity to try and have decided the very questions Date: which he now asks to have decided by this court in this proceeding. Those questions were, in fact, tried and decided May 20, 1991 in the court below and if this action can be maintained it would amount to an allowance of an appeal from the Petitioner: Aurelio Menzon judgment of the court below in the election proceeding, the Respondents: Leopoldo Petilla and Florencio Luna very thing which section 27 prohibits.

Ponente: Gutierrez Jr It cannot be believed that the Legislature, after providing a special and exclusive manner for determining the facts in an Facts: On February 16, 1988, by virtue of the fact that no election case, and after declaring that determination should Governor had been proclaimed in the province of , the be final, intended that the defeated party should have a right Secretary of Local Government Luis Santos designated the to try the same questions over again by virtue of the Vice-Governor, Leopoldo E. Petilla as Acting . provisions of section 201, above quoted. That the provisions On March 25, 1988, Aurelio D. Menzon, a senior member of of section 201 have been modified to some extent by the the Sangguniang Panlalawigan was also designated by Election Law is very clear. Whether or not it still remains in Secretary Luis Santos to act as the Vice-Governor for the force and may be availed of by a defeated candidate, who province of Leyte. Menzon took his oath of office before claims that the possessor of an office is not entitled thereto Senator Alberto Romulo. The Provincial Administrator, Tente U. for some reason not connected with the method of casting Quintero inquired from the Undersecretary of the DILG as to and counting the votes, we do not decide. We do decide, the legality of the appointment of the petitioner to act as the however, that it has been so far modified that no person Vice-Governor of Leyte. Undersecretary Rubllar stated that claiming a right to a public office can now maintain an action since B.P. 337 has no provision relating to succession in the by virtue of this section when the grounds alleged by him in Office of the Vice-Governor in case of a temporary vacancy, his complaint relate to the facts which the Court of First the appointment of the petitioner as the temporary Vice- Instance in proceedings under said section 27 had acquired a Governor is not necessary since the Vice-Governor who is right to and did determine. temporarily performing the functions of the Governor, could concurrently assume the functions of both offices. As a result This decision would seem to be conclusive of right to maintain of the foregoing communications between Tente U. Quintero the present action. and Jacinto T. Rubillar, Jr.,the Sangguniang Panlalawigan, in a In closing we call attention to the fact that unless the special special session held on July 7, 1989, issued Resolution No. 505 remedies mentioned in Chapter IX of the Code of Civil where it held invalid the appointment of the petitioner as 4 acting Vice-Governor of Leyte. The petitioner through the Held:YesRatio: The Local Government Code is silent on the acting LDP Regional Counsel, Atty. Zosimo Alegre, sought mode of succession in the event of a temporary vacancy in clarification from Undersecretary Rubillar, Jr. regarding the the Office of the Vice-Governor. However, the silence of the June 22, 1989 opinion. Undersecretary Rubillar replied and law must not be understood to convey that a remedy in law is explained his opinion: “On the basis of the foregoing and wanting. The circumstances of the case reveal that there is considering that the law is silent in case of temporary indeed a necessity for the appointment of an acting Vice- vacancy, in the Office of the Vice-Governor, it is our view that Governor. For about two years after the governatorial the peculiar situation in the Province of Leyte, where the elections, there had been no de jure permanent Governor for electoral controversy in the Office of the Governor sha not yet the province of Leyte, Governor Adelina Larrazabal, at that been settled, calls for the designation of the Sangguniang time, had not yet been proclaimed due to a pending election Member to act as vice-governor temporarily.” In view, of the case before the Commission on Elections. The two-year clarificatory letter of Undersecretary Rubillar, the Regional interregnum which would result from the respondents' view of Director of the DILG, Region 8, Resurreccion Salvatierra, on the law is disfavored as it would cause disruptions and delays July 17, 1989, wrote a letter addressed to the Acting-Governor in the delivery of basic services to the people and in the of Leyte, Leopoldo E. Petilla, requesting the latter that proper management of the affairs of the local government of Resolution No. 505 of the Sangguniang Panlalawigan be Leyte. Definitely, it is incomprehensible that to leave the modified accordingly. Despite these several letters of request, situation without affording any remedy was ever intended by the Acting Governor and the Sangguniang Panlalawigan, the Local Government Code. Under the circumstances of this refused to correct Resolution No. 505 and correspondingly to case and considering the silence of the Local Government pay the petitioner the emoluments attached to the Office of Code, the Court rules that, in order to obviate the dilemma Vice-Governor. Thus, petitioner filed before this Court a resulting from an interregnum created by the vacancy, the petition for certiorari and mandamus. The petition sought the President, acting through her alter ego, the Secretary of Local nullification of Resolution No. 505 and for the payment of his Government, may remedy the situation. We declare valid the salary for his services as the acting Vice-Governor of Leyte. In temporary appointment extended to the petitioner to act as the meantime, however, the issue on the governorship of the Vice-Governor. The exigencies of public service demanded Leyte was settled and Adelina Larrazabal was proclaimed the nothing less than the immediate appointment of an acting Governor of the province of Leyte. Vice-Governor. It may be noted that under Commonwealth Act No. 588 and the Revised Administrative Code of 1987, the Issue:WON there was a vacancy President is empowered to make temporary appointments in certain public offices, in case of any vacancy that yma occur. Held:Yes Albeit both laws deal only with the filling of vacancies in appointive positions. However, in the absence of any contrary Ratio:The law on Public Officers is clear on the matter. There is provision in the Local Government Code and in the best no vacancy whenever the office is occupied by a legally interest of public service, we see no cogent reason why the qualified incumbent. A sensu contrario, there is a acancyv procedure thus outlined by the two laws may not be similarly when there is no person lawfully authorized to assume and applied in the present case. The respondents contend that the exercise at present the duties of the office. Applying the provincial board is the correct appointing power. This definition of vacancy to this case, it can be readily seen that argument has no merit. As between the President who has the office of the Vice-Governor was left vacant when the duly supervision over local governments as provided by law and elected Vice-Governor Leopoldo Petilla was appointed Acting the members of the board who are junior to the vice-governor, Governor. In the eyes of the law, the office to which he was we have no problem ruling in favor of the President, until the elected was left barren of a legally qualified person to exercise law provides otherwise. A vacancy creates an anomalous the duties of the office of the Vice-Governor. Thereis no situation and finds no approbation under the law for it satisfactory showing that Petilla, notwithstanding his deprives the constituents of their right of representation and succession to the Office of the Governor, continued to governance in their own local government. In a republican simultaneously exercise the duties of the Vice-Governor. The form of government, the majority rules through their chosen nature of the duties of a Provincial Governor call for a full-time few, and if one of them is incapacitated or absent, etc., the occupant to discharge them. More so when the vacancy is for management of governmental affairs to that extent, may be an extended period. Precisely, it was Petilla's automatic hampered. Necessarily, there will be a consequent delay in assumption to the acting Governorship that resulted in the the delivery of basic services to the people of Leyte if the vacancy in the office of the Vice-Governor. The factthat the Governor or the Vice-Governor is missing. The appointment of Secretary of Local Government was prompted to appoint the the petitioner, moreover, is in full accord with the intent petitioner shows the need to fill up the position during the behind the Local Government Code. There is no question that period it was vacant. The Department Secretary had the Section 49 in connection with Section 52 of the Local discretion to ascertain whether or not the Provincial Governor Government Code shows clearly the intent to provide for should devote all his time to that particular office.Moreover, it continuity in the performance of the duties of theVice- is doubtful if the Provincial Board, unilaterally acting, may Governor.By virtue of the surroundings circumstance of this revoke an appointment made by a higher authority. case, the mode of succession provided forpermanent vacancies may likewise be observed in case of a temporary Issue:WON the Secretary of Local Government had the vacancy in the same office. In thiscase, there was a need to authority to designate the petitioner. 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 5 foregoing, the petitioner's right to be paid the salary attached (2) That the respondent judge took great interest and an to the Office of the Vice Governor is indubitable. The active part in the filing of the criminal charges against the compensation, however, to be remunerated to the petitioner, petitioners herein to the unjustifiable extent of appointing a following the example in Commonwealth Act No. 588 and the deputy fiscal who filed the proper informations whenhe t Revised Administrative Code, and pursuant to the proscription regular provincial fiscal refused to file them for lack of against double compensation must only be such additional sufficient evidence. compensation as, with his existing salary, shall not exceed the salary authorized by law for the Office of the Vice-Governor. (3) That the respondent judge is already over 65 years of age And finally, even granting that the President, acting through and has, therefore, automatically ceased as judge of the Court the Secretary of Local Government, possesses no power to of First Instance of Oriental Negros and that he is neither a appoint the petitioner, at the very least, the petitioner is a de judge de jure nor de facto. facto officer entitled to compensation. There is no nyingde that the petitioner assumed the Office of the Vice-Governor To this petition the respondents demur on the ground that the under color of a known appointment. As revealed by the facts stated in that (1) none of the facts alleged in the petition records, the petitioner was appointed by no less than the alter divest the respondent judge of his jurisdiction to take ego of the President, the Secretary of Local Government, after cognizance of the cases referred to in the complaint, and (2) which he took his oath of office before Senator Alberto Romulo even admitting as true, for the sake of this demurrer, the facts in the Office of Department of Local Government Regional alleged in paragraph 7 of the petition, the respondent judge is Director Res Salvatierra. Concededly, the appointment has the still a de facto judge and his title to the office and his color of validity. The respondents themselves acknowledged jurisdiction to hear the cases referred to in the petition cannot the validity of the petitioner's appointment and dealt with him be questioned by prohibition, as this writ, even when directed as such. It was only when the controversial Resolution No. 505 against persons acting as judges, cannot be treated as a was passed by the same persons who recognized him as the substitute for quo warranto, or be rightfully called upon to acting Vice-Governor that the validity of the appointment of perform any of the functions of that writ. the petitioner was made an issue and the recognition withdrawn. The petitioner, for a long period of time, exercised ISSUE: W/N the decision of a de facto judge is valid and the duties attached to the Office of the Vice-Governor. He was binding. 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 HELD: Briefly defined, dea facto judge is one who exercises now deny him the salary due him for the services he actually the duties of a judicial office under color of an appointment or rendered as the acting Vice-Governor of the province of Leyte. election thereto. He differs, on the one hand, from a mere usurper who undertakes to act officially without any color of right, and on the other hand, from a judge de jure who is in all respects legally appointed and qualified and whose ermt of e. Tayko v. Capistrano, 53 Phil 866 (1928) office has not expired.

Applying the principles stated to the facts set forth in the G.R. No. L-30188 October 2, 1928 petition before us, we cannot escape the conclusion that, on the assumption that said facts are true, the respondent judge FELIPE TAYKO, EDUARDO BUENO, BAUTISTA TAYKO, must be considered a judge de facto. His term of office may BERNARDO SOLDE and VICENTE ELUM, petitioners, have expired, but his successor has not been appointed, and vs. as good faith is presumed, he must be regarded as holding NICOLAS CAPISTRANO, acting as Judge of First Instance over in good faith. The contention of counsel for the of Oriental Negros. ALFREDO B. CACNIO, as Provincial petitioners that the auxiliary judge present in the district must Fiscal of Oriental Negros, and JUAN be considered the regular judge seems obviously erroneous. GADIANI, respondents.

Accordingly, it is a well established principle, dating FACTS: from the earliest period and repeatedly confirmed by an unbroken current of decisions, that the official acts This is a petition for a writ of prohibition enjoining the of a de facto judge are just as valid for all purposes as respondent judge from making cognizance of certain civil and those of a de jure judge, so far as the public or third criminal election cases in which the petitioners are parties. persons who are interested therein are concerned. The rule is the same in civil criminal cases. The principle is one founded in policy and convenience, for the right of no one The ground upon which the petition rests may be reduced to claiming a title or interest under or through the proceedings of three propositions. an officer having an apparent authority to act wouldbe safe, if it were necessary in every case to examine the legality of the (1) That the assignment of the Auxiliary Judge, Sixto de la title of such officer up to its original source, and the title or Costa, to Dumaguete was made with the understanding that interest of such person were held to be invalidated by some the he was to hear and take cognizance of all election accidental defect or flaw in the appointment, election or contests and criminal causes for violation of the election law qualification of such officer, or in the rights of those from and that the respondent judge was to take cognizance of the whom his appointment or election emanated; nor could the ordinary cases and that there was an understanding between supremacy of the laws be maintained, or their execution them that this arrangement was to be followed. enforced, if the acts of the judge having a colorable, but not a 6 legal title, were to be deemed invalid. As in the case of judges The facts, as succinctly set forth in the comment of the of courts of record, the acts of a justice de facto cannot be Solicitor General follows: "On May 10, 1973 petitioner was called in question in any suit to which he is not a party. The convicted of Serious Physical Injuries through Reckless official acts of a de facto justice cannot b attacked collaterally. Imprudence by the Municipal Court of Loay, and An exception to the general rule that the title of a person sentenced to suffer three (3) months of Arrests Mayor. On assuming to act as judge cannot be questioned in a suit appeal, the case (Crim. Case No. 706) was raffled tohe t CFI of before him is generally recognized in the case of a special Bohol, Branch 1, presided over by the Honorable Paulino judge, and it is held that a party to an action before a special Marquez. On June 26, 1973, an order was served on petitioner judge may question his title to the office of a judgeon the that the promulgation of the decision would take place on July proceedings before him, and that the judgment will be 6, 1973. On June 27, 1973, Judge Paulino Marquez retired from reversed on appeal, where proper exceptions are taken, if the service. ... Upon motion of counsel for petitioner, the person assuming to act as special judge is not a judge de jure. promulgation of decision was postponed from July 6 to July 12. The title of a de facto officer cannot be indirectly questioned Finally on July 16, 1973, the decision dated June 22, 1973 as in a proceeding to obtain a writ of prohibition to prevent him prepared and signed by Judge Marquez was promulgated by from doing an official act nor in a suit to enjoin the collection respondent Judge." 3 of a judgment rendered by him. Having at least colorable right to the office his title can be determined only in auo q warranto What other conclusion, then. could such facts lead to except proceeding or information in the nature of a quo warranto at the following, as set forth in the above comment of the suit of the sovereign.” Solicitor General: "In the light of ... settled rulings, the promulgation made by respondent judge on July 16, 1973 of the decision dated June 22, 1973, signed and prepared by Judge Marquez who retired on June 27, 1973 is submitted to f. Jandayan v. Ruiz, 95 SCRA 562 (1980) be null and void." 4 We are in agreement, as earlier noted, and we grant the petition. G.R. No. L-37471 January 28, 1980

There are areas in the juristic sphere where the dividing line is DULCISIMO TONGCO JANDAYAN, petitioner, obscure, but certainly not this one, except, it would seem. for vs. respondent Judge. There is no real need to plot it on the legal THE HONORABLE JUDGE FERNANDO S. RUIZ, as map for those whose knowledge of the terrain of the law rises Executive Judge, Court of First Instance of Bohol THE above the superficial. As so tersely put by the then Justice, CHIEF OF POLICE, Anda, Bohol and CANDELARIA later Chief Justice, Cesar Bengzon: "We have then that, ARANA, respondents. legally, the decisions of Judge Mañalac were promulgated on July 3, 1954. Wherefore, because he had left the Bench before that date, his decisions have no binding effect." 5 Such a doctrine goes back to a 1917 decision, Lino Luna v. FERNANDO, C.J.: Rodriguez. 6 It did cite in support thereof several leading American Supreme Court decisions. 7 A recent case, Jimenez 8 A resort to a habeas corpus proceeding would not have been v. Republic, applies with even more pertinence. The necessary had there been a little more attention paid to the antecedent facts, as set forth in the opinion of Justice Angeles, authoritative doctrine. Petitioner, Dulcisimo Tongco Jandayan, follow: "Eduardo Jimenez, herein petitioner, together with had to be confined in the Bohol provincial jail on July 16, 1973 others, was charged with homicide in an information, dated when respondent Judge Fernando S. Ruiz of the court of the May 13, 1960, before the Court of First Instance of Rizal, First Instance of Bohol 1 promulgated the sentence in the criminal case No. 9531, of said court. The case was heard and accordance with a decision of the then judge Paulino Marquez, tried before Judge Eulogio Mencias, presiding one of the dated June 22, 1973, notwithstanding the undeniable fact that branches of the court. Admittedly, the decision prepared and such judge had retired by reason of age as far back as June signed by Judge Mencias was delivered to the clerk of court on 27, 1973. This, then is essentially a proper case for the January 16, 1965, On the same date, the clerk of court issued invocation of the great writ of liberty, although counsel for and served notice on the petitioner to appear in court on petitioner did likewise label his pleading as one January 21, 1965 for the promulgation of the sentence. In forcertiorari and mandamus. It is regrettable that respondent view that January 21, was declared by the President a special judge failed to yield deference to the authoritative controlling holiday, the promulgation of the decision could not be carried doctrine as to the competence of a judge to continue out on that day. On January 21, 1965, Judge Eulogio Mencias discharging the functions of his office after retirement. It is had reached the age of 70 and was retired on that day from commendable of Solicitor General E Estelito P. the bench. Respondent Judge Pedro Navarro was immediately Mendoza 2 then, that when required to comment, he made designated to take the place of Judge Mencias The former clear that he was in agreement with petitioner and that the judge ordered that the sentence be promulgated on January promulgation of the sentence made on July 16, 1973 by 29, 1965, but for some reason, it was postponed to March 1, 9 respondent Judge on the basis of what purportedly was a 1965." Petitioner Jimenez filed a motion to set aside the decision of the retired Judge Paulino Marquez should be set decision as well as. its promulgation an the ground of Judge aside and that petitioner should be released from confinement Mencias having retired. Respondent Judge, however, denied without prejudice to the proceedings being continued the motion, necessitating the filing of a petition for certiorari according to law. That, in the opinion of the Court, is likewise and prohibition. The concluding paragraph of the opinion the proper disposition of this case. reads: "We hold that the decision rendered by the retired Judge Eulogio Mencias cannot be validly promulgated and 7 acquire a binding effect for the same has become null and • Phipps, although the records of the Auditor General void under the circumstances." 10 show that Lamb indeed has settled his accounts, refuses to issue the certificate because a certain Fernandez may bring a civil suit against the 11 The latest case in point is Vera v. People, where it was government. However the records also show that noted by this Court that a decision of a judge promulgated Fernandez signed the receipt acknowledging after his retirement could have been set aside on the payment from the government. authority of the above two cases of People v. Court of • The petition for mandamus, asking the SC to compel Appeals 12 andJimenez v. Republic, 13 except for their non- Phipps to issue the certificate was demmurred to by applicability in view of the failure to raise such an objection in the auditor because it is a suit against the government and the petition states no cause of the lower court as well as in the Court of Appeals. There was action. no thought, however, of deviating from the principle that a • The SC initially asked Lamb to amend his petition but judge who had retired had no legal authority to promulgate a the latter did not do so hence the SC decided the 14 decision. case upon the facts Lamb intended to make.

That is all then that this case presents, and it is quite obvious that there was no justification not even a plausible Issue: explanation, for the unwarranted action taken by respondent Judge in the face of such compelling juristic norm. • W/N Mandamus may issue to compel the auditor general to issue the certificate of clearance of Lamb.

This Court did not feel the need for deciding the petition earlier considering the comment filed by the respondent Chief Ratio: of Police of Anda, Bohol, in the light of its last two paragraphs. Thus: "That as a municipal prisoner, petitioner Dulcisimo NO Tongco Jandayan had served the rest of his sentence in the municipal jail of Anda Bohol from August 14, 1973 to October • The certificate of clearance is needed only for 5, 1973 when the undersigned respondent in his capacity as bonded government employees and there is no and Chief of Police of Anda Bohol released prisoner Dulcisimo averment that Lamb is a bonded employee other Tongco Jandayan for having fully served out his sentence; and than having custody of government property and that the undersigned only knew of petitioner's present petition funds, however, the SC assumed that Lamb was a and received the different copies of the pleadings nd,a bonded officer. resolutions from the Honorable Supreme Court [only after] the • It is confidently contended that the Auditor is not undersigned has already released petitioner Dulcisimo Tongco obliged under the law to accept a mere paper accounting as final and conclusive as to the real Jandayan who had already fully served his sentence as said 15 responsibility of Government employees and to issue above." Hence the habeas corpus aspect was rendered t a clearance upon that alone. He may, it is true, if he and academic. Nonetheless, this opinion is handed down to is satisfied; but certainly, he may, if he so desires remove any doubt that this Court adheres to the well-settled and if he has any doubt about the correctness of doctrine on the matter at issue. such accounts, make an actual examination of the funds and property represented by such paper accounts or balances. WHEREFORE, this petition is dismissed for being moot and • Whenever a duty is imposed upon a public official academic, petitioner having been released in the meanwhile. and an unnecessary and unreasonable delay in the No costs. exercise of such duty occurs, if it is clear duty imposed by law, the courts will intervene by the extraordinary legal remedy of mandamus to compel Barredo, Antonio, Aquino, Concepcion, Jr., and Abad Santos, action. If the duty is ministerial, the courts will JJ., concur. require specific action. If the duty is purely discretionary, the courts by mandamus will require action only. In the present case, however, the mandamus is not for the purpose of the compelling action only. It is presented for the purpose of requiring particular action on the part of the Auditor. There is a very wide distinction g. Lamb v. Phipps, 22 Phil 456 (1912) between the use of the writ of mandamus to compel action and its use to compel particular action on the part of a public official, board, or Facts: officer upon whom particular duties are imposed by law. • Lamb was the superintendent of the Iwahig Penal • The following are the powers and duties of the Colony until he resigned on Dec. 31, 1911 due to ill Auditor General: health. Before that he was assigned as provincial First, that the Auditor for the Philippine treasurer for , Mindoro and . He Islands has exclusive jurisdiction in the first requested the Auditor General, Phipps, for his instance to examine, audit, and settle all clearance certificate (showing that Lamb has accounts pertaining to the revenues and accounted for all property and funds under his custody) in order that Lamb may be allowed to leave receipts from whatever source of every the without incurring criminal liability. governmental entity within the Philippine Islands. 8 according to the pleadings, balanced, leaving the relator owing the Government nothing. Second, that his decision or the result of his accounting upon such revenues and receipts and accounts is final and conclusive upon all • That one Fernandez cannot sue the Government in a parties unless an appeal is taken within a civil action without its consent is well known by everyone. Then, why should the respondent be period of one year. allowed to hold up the claims of the relator for accrued leave, salary, and transportation on this ground? In deciding to do so, what kind of judgment and discretion did he use? Third, that the Governor-General of the Philippine Islands (See sec. 36, Act No. 1792) is not possessed with power to revoke • The point of Justice Trent is that in order to determine or alter or modify the results of accountings whether mandamus should issue the court must be made by the Auditor without reference to governed by the nature of the duty sought to be the Secretary of War. enforced and not by the nature of the office held by the respondent( Marbury v Madison)

• The courts will not interfere where it is necessary to Fourth, that when an appeal is taken to the weigh the evidence and decide on which side a nice Governor-General and the latter disapproves preponderance lies. A strict adherence to such a rule of the accounting made by the auditor, he would, however, require the courts in every case to must at once forward to the Secretary of go into the merits and decide on which side the War for final action the matter in preponderance lies, exactly the same as in any controversy. ordinary case. But discretion is no concrete thing to be conferred or transferred as a piece of land or a commission to office. It is a trait of character • The SC held that since the nature of the Auditor’s job bestowed by nature upon all men in a greater or less requires him to exercise discretion, he may not degree. If the law permits an officer to act with compelled by mandamus to issue the certificate to discretion, he must necessarily use that discretion. Lamb. Also, there is a plain, speedy and adequate He can, in the nature of things, use no other. Legal remedy afforded to Lamb in that the Auditor’s discretion is, after all, nothing but a man-made decision may be appealed to the Governor-General. standard for measuring and keeping within The SC relied on the case of Decatur vs. Paulding bounds the personal discretion of such public where it was held the the US courts that an Auditor officers. If they fail to make their official acts may not be compelled by mandamus. Also, the SC conform to this standard, they will be called to held that the decision of the executive branch is not account. For political of legislative acts, they reviewable by the courts. are responsible directly to the people. But if it be administrative and properly within the jurisdiction of the courts, the courts will Dissent of Justice Trent: provide the remedy.

h. Avenue Arrastre v. Commissioner of Customs, • Justice Trent makes issue about the supposition of 120 SCRA 878 (1983) the majority in the allegations Lamb intended to make saying that the Court cannot do so without G.R. No. L-44674 February 28, 1983 substantiating that inference which in his mind the majority did not discharge this burden. • In the final analysis, the whole case, up to this point, AVENUE ARRASTRE AND STEVEDORING CORPORATION, is narrowed down to one question only; that is, Can INC., as successor to Puerto Princess City Arrastre and the courts control by mandamus the judgment and Stevedores' Union, petitioner, the discretion which were exercised by the vs. respondent when he denied the relator's request for The HONORABLE COMMISSIONER OF CUSTOMS, The a certificate of clearance upon the grounds (1) that a probable suit might be brought by one Fernandez HONORABLE SECRETARY OF FINANCE, THE PRUDENTIAL against the Government, and (2) that the CUSTOMS BROKERAGE SERVICES, INC., respondents. Government, in all probability, would have to pay the claims of the relator for leave, salary, and Parades & De los Reyes Law Offices for petitioner. transportation? I shall now attempt to demonstrate that this question is, upon sound legal principles, to be answered in the affirmative, and in so doing, I The Solicitor General for respondents. shall disregard as inapplicable all the authorities cited in the majority opinion which tend to support the general proposition that the decision of the Eladio B. Samson for private respondent. Auditor upon matters pertaining to the settlement of bonded officers' accounts is final and conclusive, because the accounts of the relator as superintendent of the Iwahig Penal colony have been, ESCOLIN, J.: 9 This petition raises anew the question of whether an order of 5) PPCASU has paid its Mayor's Permit for the Commissioner of Customs, affirmed by the Secretary (now the purpose during the period from January Minister) of Finance, on a matter involving the exercise of his to March, 1975 only. I am surprised why the discretion may be reviewed and set aside by mandamus. City government does not go after them.

The Puerto Princesa City and Stevedores Union, PPCASU for 6) No bond has been filed during the current short, was the original operator of the arrastre and year. stevedoring service in the Port of Puerto Princesa, , under a temporary permit issued by the respondent Meanwhile, petitioner Avenue Arrastre and Stevedoring Commissioner of Customs for a period of six (6) months Corporation, Inc., claiming to have been merged with PPCASU starting December 20, 1974. Despite poor and inefficient and as successor of the latter, moved for reconsideration of operations and resource problems on the part of PPCASU the the above order. The motion was denied. Petitioner's appeal to permit was renewed four times, covering the period from the Secretary of Finance was likewise dismissed. Hence, this December 21, 1974 to March 19, 1976, to enable PPCASU to petition for mandamus. make good its repeated commitment to improve its service and procure needed equipment. The petition is devoid of merit.

On March 18, 1976, respondent Commissioner finally Even conceding that petitioner, as successor of PPCASU has terminated PPCASUs permit and at the same time authorized the privilege of obtaining renewal of the latter's permit after respondent Prudential Brokerage Services Inc., to operate its expiration, such privilege rests on the sound discretion on arrastre and stevedoring service in the Port of Puerto Princesa the part of respondent public officials, and refusalto grant starting March 19, 1976. Basis of the order of respondent continuance of the privilege, especially upon their findings of Commissioner is the report of the Collector of Customs of PPCASUs gross inefficiency and flagrant violation ofhe t Labor Puerto Princesa with the following findings: Laws, cannot be the subject of an action for mandamus. The rule consistently adhered to in this jurisdiction is that l) PPCASU at present has practically no mandamus will not lie to control or revew the exercise of capitalization at all. This fact has been made discretion of a public officer where the law imposesupon him known to that office thru Mr. Quiray. I've the right or duty to exercise judgment in reference to a matter informed him personally about the in which he is required to act. withdrawal from the group of the chinese capitalists who had a misunderstanding with Moreover, mandamus will not issue in doubtful cases. In the the President, Mr. Parades. This is one main case at bar, petitioner has not shown a clear and certain right reason why the corporation could not to warrant the grant thereof. update its accounts with this office, the employees and laborers and above all, the claims for damages and/or losses of goods. ACCORDINGLY, the petition is hereby dismissed, with costs against petitioner. 2) PPCASU practically, has no equipment at all. Although it has acquired a second hand SO ORDERED. forklift six months ago, it is out of order for the last four months due to lack of spare Makasiar (Chairman), Concepcion, Jr., Guerrero, Abad Santos parts. It has only two pieces of canvass and De Castro, JJ., concur. which are actually worned out and thorned and cannot protect the goods from the rain. Aquino, J., is on leave. There are less than twenty pieces of pallets in use most of which are with broken parts and do not serve the purpose effectively.

i. BF Homes v. NWRC, 154 SCRA 88 (1987) 3) In spite of our oral and written directives to the contrary, the laborers are paid up to BF Homes, Inc. and Phil. Waterworks and Construction Corp. v. the present on a 'Pakway System' which NWRC and CA, G.R. No.78529 actually is against the labor law. This was brought personally to the knowledge of Mr. Quiray on his stay here during the seminar on arrastre. Facts: BF Homes, Inc. constructed water distribution systems at its subdivisions so that residents would have an adequate 4) No record of PPCASU could show that supply of potable water. BF Homes, Inc. applied for and was they have remitted any amount to the SSS granted a Certificate of Public Convenience and Necessity as their counterpart. All employees and (CPCN) for its water distribution system at its Las Pifias laborers are not covered by any sort of subdivision. BF Homes, Inc. sought authority from the National protection. Water Resources Council (NWRC) to transfer the CPCN to Philippine Waterworks and Construction Corporation (PWCC).

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