PLJ Volume 36 Number 2 -04- Rolando R. Arbues, Et. Al. - Public Officers and Election Law

7/28/2019 PLJ Volume 36 Number 2 -04- Rolando R. Arbues, Et. Al. - Public Officers and Election Law

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RoLANDO R. ARBUES *

HEPHONY B. PADERNAL *

CANCIO C. GARCIA*

I. PUBLIC OFFICERS

A. De Facto Officers.

A de facto officer has been definedas one who is not fully invested with all

the powers and duties concededto the office, but is exercising the officeunder

some color of right. The de facto doctrine was introduced into the ],a.was Q

matter of policy and necessity, to protect the interests of the public and indi-

viduals, where those interests were involvedin the official acts of persons exer-

cising the duties of an office without being La:wfulofficers. This year, the Su-

preme Court had occasionto pass upon questions concerning de facto officers,

applying the same age-old principles.

1. Right cannot be que.stioned coUaterally; remedies-

The basic rule is that the right of a de facto officer to exercise the official

functions may .not be questioned collater,ally.1 Thus, in Acain v. Board of

CanvaBsers,2'Wherethe candidates assumed office, upon authority of the Com-

mission on Elections, they have a color of title to the officesheld by them ,and,

accordingly, they enjoy the rights of a de facto officer, among which is thattheir title to said offices may not be contested except directly, by writ of quo-

war-ranto and/or by election protest, not indirectly by questioning the regularity

of their proclama.tion.

2. Can1lJOtclaim reinstatement as of right-

Where the temporary appointments of non-civil service eligibles were re-

called by the appointing officer and consequently had never been approved or

authenticated by the Civil Service Commissioneras preseribed by section 682

of the Rev. Adm. Code,they may only be consideredas de facto officers,having

acted, prior to their formal separatio.n,under color of appointment, and henc.e

they cannot claim for reinstatem~nt as a matter of right.3

3. May receive salary for services actually rendered--

In cases where there is no de jure officer, a de facto officer, who, in. goodfaith has had possession of the office, has discharged the duties pertaining

thereto, is legally entitled to the emolumentsof the office,and may in an appro-

priate action recover the salary, fees, and other compensationattached to the

office. This doctrine is undoubtedly, supported on equitable grounds, since it

seems unjust that the public should benefit by service of ,an officerde facto andthen be freed from aU liability to pay anyone for such services.4

Member, StUdent Editorial Board, PHIL. LAW JOURNAL,1960-61.1Tayco v. Capistrano, 53 Phil. 866. G.R. No. L.16445, promulgated May 23, 1960; Govt. v. Binangonan, 28 Phil. 116; Meehem.

Puhlic Officers. see. 344. Injunction is not an appropriate remedy for the removal of an offtceror the reinstatement of one removed without cause. (Silen v. Vera, 64 Phil. 868).

IMontero v. Castelisnes. G.R. No. L-12694, promulgated June 30, 1960. Petterson v. Benoon, 112 Pac. 801, 32 LRA (NS) 949. Although a writ . is of the con-

trary opinion. He states that an officer de faeto is not entitled as such to an,. right enforceable


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In Oui V. Ottiz,f5 the Court held that where a statute providea that an

appointee may, pending approval of his appointment by the President, assume

office and receive saJ.aryfor services actually rendered, he may, in that dura-

tion until the appointment is finally acted upon favorably or unfavorably, beconsideredas a de facto officer and entitled to salary for services rendered.

4. Acts of de facto officer moI1/be 'Yatijie&-

An officer whose leg;altitle to the office he holds is clear and complete is,a.nofficer de jure. One who exercises the functions of an office without anycolor of title to it or any reputation whatever that he is the officer he claims

himself to be is a mere intruder. The acts of an intruder are totally void.

A sort of intermediate type stands between these two holders of public office-

the de facto officer.6 His acts are not wholly void, but m.aybe the subject ofratification to make them produce valid effects. In CodiUa v. MO/I'tinz,T it

appears that on, February 24, 1956,before leaving for Negro!!Occidental,the

mayor of Tagum, Dav,ac,designatedthe vice mayor to act in his place effective

January 25, 1956 until further ,advice. The vice mayor in turn fell sick and

designatedthe ranking counciloras acting mayor. The ranking councilor,whohimself was not in goodhealth, designated respondent Jose Martinez, the third

r,g.nkingcouncilor, to act as mayor. The first official act .as acting mayor of

respondent Martinez was to separate petitioners from the service as policemen

of the municipality. Petitioners filed the present petition for mandamus to

compel respondents to reinstate them. The trial court dismissed the petitionholding that the separation of petitioners was made in accordance with law.

Petitioners .appealed.

Petitioners questioned the designation made by the ranking councilor of

the third ranking councilor as acting mayor. According to petitioners, the

designation of an acting mayor shouldbe made by the provincial governor withthe consent of the provincial board. Held: The designation of respondent :Mar-

tinez as .actingmayor is not entirely void or one that wouldmake him a usurper.

At most he is a de facto 'Officerwhoseacts may be given validity in the eyes of

the law. His acts made 'Withinthe scope of authority vested by law in the

office of mayor are valid. Besides all the official acts of respondent Martinezwere subsequently endorsed.and ratified by the incumbent mayor when he re-

tunned to office. This ratification served to cure any legal infirmity the acts

of respondent Martinez may have suffered because of irregular designation.The Court also said that since petitioners were merely giventemporary appoint-

ments for the reason that' they do not have civil service eligibility, their statusas employeeswas wholly dependent upon the grace of the ruling power.

B. Membersof Congress; suspensionof-

Our Constitution, under section 15 of Article VI,TIenshrines parliamentary

immunity which is a fundamental privilege cherishedin every legislative assem-

bly of the democr.aticworld. As old as the English Parliament, its purpose

in the courts. Thus he (de faeto offieer) "may not sue for the recovery of salary by a meresbowin.1r tbat he has rendered serviees as a de faeto offieer; for the right to emoluments goeson!:r with a person's legal title to the offiee." (SINCO, PHIL. POLlTlCALLAw, 1954 Ed. p. 448).

Iq.R. No. L-13753, promu1lrated April 29, 1960. SINCO, PHIL. POLmCALLAW, PP. 444-445. To eonstitute a de faeto offieer, there must be

an offlee baving a de faeto existen.,e or at least one reeognized by Jaw and the elaimant mustbe .in ac1>UaJ po8session of the offiee under eolor of title or authority. (State v. Bablo, 20 SE

(2d) 683 eited In CodiJla v. Marty,E'Z, infrn)7 G.R. No. 1-14569, promu1lrated November 23, 1960.71 It provides: '"I'he Senators and Membe.. of the House of Representatives shall in all

eases exeept treason, felony, and breaeh of tbe peaee, be privileged from arrest during their at-tendance at tbe sessions of the Congress, and in going to and returning from the same; amifor _ epe "h or deb4t th""""n, th"ll shull not b QU88tio'ned in any oth ..plac..... (Underlining

ours)


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"ia to enable .and encourage a representative of the public to discharge his

public trust with firmness and success" for "it is indispensably necessary that

he should enjoy the fullest liberty of speech, and that he should be protected

from the resentment of every one, however pCJlWerful,to whom the exercise of

that liberty may occasion offense/,g Such immunity has come to this country

from the practices of Parli.ament as construed and applied by the Co,ngressofthe United States.

This principle w.as invoked in the case of Osrmeiia 1J. Pendatun 9 as one of

the grounds for setting aside the resolution suspending petitioner from his seat

in Congress. There is no question that Congressman Sergio Osmefia,Jr., in

a privilege speechdeliveredbefore the Houseof Representatives, made the serious

imputations of bribery ag13.instthe President of the Philippines which are quoted

in Resolution No. 59 of said House, and that he refused to produce before the

House Committeecreated for the purpose, evidence to substantiate such impu-

tations. There is also no question that for having made the imputations and

for failing to produce evide.nein support thereof, he was, by resolution of theHouse suspended from officefor a period of fifteen months for serious disorderlybehaviour.

The Oourt held that parliamentary immunity guarantees the legislator com-plete freedom of expression without fear of being made responsible in crimin,al

or civil actions before the courts or any other forum orutside of the Congressional

Hall. But it does not protect him from responsibility before the legislative

body itself whenever his words and conduct are considered by the latter dis-

orderly or unbecominga member thereof. For unparliamentary conduct, mem-

bers of Congress could be cens1:!red,committed to prison, suspended, or even

(>xpelledby the votes of their colleagues. The House of Representatives is the

judge of what constitutes disorderly behaviour .amongits members. The Court

refused to assume the pCJlWerto determine whether Osmefia'sconduct constituted

disorderly behaviour on the theory of separation of powers. The court also

held that the Alejandrino case, which the suspended legislator invoked as a

precedent, is no longer valid. Senator Alejandrino, being appointive and not

an elective official, could not be removed by the Senate, whose powers were

stil11imitedunder the Jones Law. Whereas today, the court now adds, Congress

is vested, under the Republic, with prerogative to suspend a member according

to its own rules.11 D

C. Provincial Fiscals; duty to represent municipality in court; remedies of

municipality where such officer f.ails!to act-

Under the Rev. Adm. Code,lilthe provincial fiscal is the legal adviser of

the mayor and council of the various municipalities of a province and it is his

duty to represent the municipality in any court except when he is disqualified

by law, in which ca.se the municipal council may engage the services of aspecial attorney. According to the case of Enrique.z, Sr. 1J. Gitmenez,u the

provincial fiscal is disqualified to represent in court the municipelity if and

when original jurisdiction of the case involving the municipality is vested in

the Supreme Court; when the municipality is a party .adverseto the provincialgovernment or to some other municipality in the province;13 and when in the

Tenney Y. Brandhove, 841 U.S. 867. G.R. No. L-17144. October 28. 1960 Two justices, however, penned their own dissenting opinions. For further dlseusslon of

the cue. Survey In Constitutional Law for 1960, PHILIPPINB LAw JOUBNAL.uSections 2241, 1682, and 1683.12 G.R. No. L-12617, promulgated April 29, 1960.IS See Reyes v. Cornlsta, 49 O.G. 931; Mun. ot Boeaue and Provo of Bulaean Y. Maftotot,

G.R. No. L-6528. May 25. 1958.


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case involving the municipality, he, or his wife, or child, is pecuniarily involved

as heir, legatee, creditor or otherwise.14

The fact that the provincial fiscal in. the case at bar was of the opinion

that Republic Act No. 1383 (which the municipal council is contesting) was

valid and constitutional, and, therefore, would not be in a position to prosecute

the case of the municipality with earnestness and vigor, could not justify the

act of the municipal council in engaging the services of a special counsel. Biasor prejudice and animosity or hostility on the part of the fisc,a.lnot based on

any of the conditions enumerated in the law and the Rules of Court do not

constitute a legal and valid excuse for inhibition or disqualification.~ And

unlike a practising lawyer who has the right to decline employment, a fisc,al

cannot refuse the performance of his functions on grounds not provided for

by law without violating his oath of office.

Instead of engaging the services of a special counsel, the municipal council

!ffiouldhave requested the Secretary of Justice to appoint ,an acting provincial

fiscal in. place of the provincial fiscal who had declinedto handle and prosecute

its case in court, pursuant to section 1679of the Revised Administrative Code.Petitioner claims, however, that it could not do this because the Secretary of

Justice, who has executive supervision over the Government Corpor,ate Counsel

who represented the NAWlASAin the case filed against it by the municipality

and direct supervision .and control over the provincial fiscal, would be placed

in an awkward and absurd position of having control of both sides of the con-

troversy. Held: This contention is untenable. Section 83 of the Rev. Adm.

Codeas ,amendedby Exec. Order 392, series of 1950,provides that the Secretary

of Justice shall have executive 8uve'rviBion over the Government Corporate

Counsel and supervision and cont'l"ol over provincial fiaws. Citing Mun.da:no

v. SilVQlM,16 the court stated:

"Supervision differs from control. The former means overseeing Or the power of

~ official to see that subordinate officers perform their duties. If the latter fall or

nC!lrlectto fulfill them the former may take such action or step as prescribedby law to

make them perform their duties. Control, on the other hand. means the power of an

officer to alter or modifyor nullify or set aside what a subordinate officer had done in

~ performance of his duties. and to substitute ~ judgment of the former for that of

the latter."

The fact that the Secretary of Justice had, on several occasio;ru;',upheld the

validity ,and constitutionality of Rep. Act 1383does not exempt the municipality

of Bauan from requesting the Secretary of Justice to detail a provincial fiscal

to prosecute its case. In the present case, since the services of the petitioner

as special counsel for the municipality was engaged by the municipal council

and the mayor without ,authority of law, the Auditor General was corxect in

disallowing in ,audit the petitioner's claim for payment of attorney's fees.

It should be noted, however, that under the Local Autonomy Act, (R.A.

2264) municipal councils of municipalities and regularly organized municipal

districts may create a legal division or officeto be headed by an attorney-at-law

appointed by the mayor with the approval of the council. But a member of

the cour.cilwho is a lawyer may be appointed municipal attorney with no further

compensation.

14 Sec. 13, Rule 116and sec. 1. Rule 126. Rules of Court.:Ill Cj. Benusa v. Torres. 66 PhiL 737; People v. Lopez, 78 Phil. 286. 51 O.G. 2884, 2888.


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D. Abandonment of office.

In Magana. v. Audiw-r General et al.,lT it appears that appellant's position

,as Field Auditor was abolishedas an economymeasure. He was subsequently

offered and did accept with reservation the position of Inspector in the office

of the Auditor in the respondent NAMARCO. Held: It constituted abandon-

ment of his former office. The fact that appellant had made a reserva.tion(regarding the prosecution of the present case) in his acceptance of the new

position in the NAMARCOis of no moment, because, once ,a government em-

ployee accepts a new position, he loses his right to the old office. Moreover,

an appointee cannot impose his own conditionsfor the acceptance of a public

office. He may accept or decline it.

However, in Tan v. Gimenez,18 a different holding was made. Petitioner

was ordered to resign from the service with prejudice to reinstatement pur-

lluant to the decisionof the Commissionerof Civil Serviceand by virtue thereof

was prevented from exercising the functions of his position and receiving the

corresponding compensationt.herefor. The faet that during the time his appeal

to the Civil Service Board of Appeal!!was pending and being deprived of his

salary, he sought and found employmentin another branch of the government,

doe.! n'Ot constitute abandonment of his former position. He had, according

to the court, to find means to support himself and his family during that

pl'lriod.

II. CIVIL SERVICE

A. Preventive Suspension

DislwneBty, oppre88ion and misconduct G6 grounds fO'1'preventive 8U8pen-

sian of appointive officer or employee need nD,t have relation to pe'rformanee

of duty-

In the case of Nera v. GaJrcia et 0),.,1'11it appears that one BienvenidoNera,

a civil service eligible, was at the time of his suspension, serving as clerk in

the Maternity and Children's Hospital, a government institution under the super-

vision of the Bureau of Hospitals and Department of Health. In the course

of his employment,he served as m.anager and cashier of an association of the

employeesof the institution, and as officer he was supposed to have under his

control funds of the association. On May 11, 1956, a criminal complaint formalversation was filed againosthim for allegedly misappropriating funds of

the association. An administrative action was filed against him also, and he

was subsequently suspended from the service with the .approval'of Garcia, the

Secretary of Health.

Nera contends that his suspensioRwas illegal, because assuming that he

was guilty of malversation of the fu.nds of the association, nevertheless, said

i:aegularity had no connection 'Withhis duty ,as clerk of the Maternity and

Children's Hospital.

The court, in turning aside the contention of Nera, exami.nedSection 34of the Civil Service Law of 1959 (Rep. Act No. 2260) which provides:

. . With the approval of the proper head of Department, the Chief of a bureau or

office may llkewlse preventively suspend any subordinate officer or employeein bls bu-

reau or under hlBauthority pending an Investigation, if the eharge aplnst Buebofficer

11 G.R. No. 1.-12180,prom~ated April 29, 1960.'" G.R. No. L-12525.promulgated February 19. 1960. G.R. No. L-13169,promulgated January 30, 1960.


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or employee involves diBlwnestlJ. OPP,"""BUm. 0," g",,"'6 miBc


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the person investigated is found guilty of acts warranting his removal, then

he is removedor dismissed. This, is the penalty. There is therefore, nothing

improper in suspending an officer pending hisl investigation and before the

charges against him are heard ,and be given an opportunity to prove his inno-

cence.26

EmplO'Jleealiready swspended by virtue of prior chalrge need not be ordered

8UJJPe1U led anew 10'7'J8econdcharge-

In Pa,sCUQ, v. Tuazon,~ petitioner, a government employeewas accused>of

falsification of public documentson May 14, 1951 and on May 18, 1951 he was

suspended by the Secretary of Justice. While he was under suspension, an-

other criminal case for grave coercion was filed .against him. In both cases,

petitio.nerwas convictedby the Court of First Instance. He was subsequently

acquitted by the Court of Appeals of both charges. The acquittal in the case

for falsification of public documents became final on April 8, 1953 a.nd his

acquittal for grave coercion became final on October8, 1954. Before his ac-

quittal of grave coercion,he was charged administratively of acts unbecoming

a government employee. In view of his acquittal, petitioner requested respon.

dent Sec. of Justice Tuazon to reinstate him and order the payment of his back

salaries. Upon refusal of the I.atter, petitioner filed the present petition for

mandamus. The trial court ordered petitoner's reinstatement to his former

positicmwith back salaries unless he has been suspended or should be sus-

pended by respondent Secretary by virtue of charges newly filed against him.Both parties appealed. Held: The charges against petitioner in the adminis-

trative case 'Werequite grave and are grounds for his suspension and that

inasmuch as petitroner was already under suspension,sinceMay, 1957there was

no need to order anew his suspension. The trial court held in effect that to

keep petitioner out of the government service, it was essential for the respon-

dent to issue another order suspending him from office. Such suspension is

an empty formality and would require an incongruousact, i.e., suspending one

already under suspension.

The case of Magana v. Audiror General'27w,asa petition for certiorari pray-

ing among other things for the reinstatement of petition to the service and the

payment of all salaries and privileges withheld as a result of his allegedly

illegal ouster. He is a civil service eligible, .and his office as Field Auditor

was abolished in CQ,IUlonancewith the reorganization program of the new ad-

ministration and its policy of economy. The court held that since petitioner

enjoyedhis unused vacation and sick leave, and receivedgratuity under ,a Board

resolution; having accepted the benefitsaccruing from the abolitionof his office,he is estopped from questioning its validity or is deemedto .have waived the

right to question thesame.'.l8

Nera v. Gareia, G.R. No. 1.-13169, promulgated January 30, 1960. And in the ab!eneeof abuse of discretion. the courts will not interfere with the suspension of the public oftlcer underinvestigation. (Suelto v. Munoz Palma, et aI., G.R. No. 1.-9034, April 13. 1906).

G.R. No. 1.-13046, promulgated lIIsy 20, 1960. G.R. No. L-12180, promulgated April 29, 1960.Cf. Lopez v. Board of Directors, G.R. No. L-8907, promulgated HaJ


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D. Acts amounting to removal

Improper tramfer of civil service emp'(qyee--

Civil service employeesenjoyed the protection of the Constitution whichprohibits their suspension or removal except for c,aUSeas provided by law.l!9

The exigenciesof service morale and efficiencydemandthe gr.anting of security

of tenure. To permit circumventionof the constitutional prohibition by allow-

ing removal without lawful cause, in the form or guise of transfers from oneoffice to another, or from one province to another, without the consent of the

transferee, would blast the hopes of young civil service officials .and career

men and women, destroy their security and tenure of office and make for a

subservient,discontentedand inefficient civil serviceforce that sways with every

political wind that blows and plays up to whatever political party is in thes,addle. That wouldnot be our conceptof a free and efficient Governmentforce,

possessedof self-respect and reasonable ambitioo.so

In Ga;rciav. Lejano 31 the court ruled that the chief of a provincial hos-

pital is embraced in the unclassifiedservice of the government from which he

cannot be removed except for cause, as provided in the Constitution, in rela-tion to pertinent provisions of the Rev. Administrative Code,and his transfer

to another position without his consent is tantamount to removal without valid

cause. It was contendedthat Lejano's transfer was merely to give him a tem-

porary assignment elsewherewhich can be done without doing violence to the

constitutional prohibition. This claim, however, was belied by the evidence

which.showsthat what was extendedto Lejano was a new appointment. While

temporary transfers or assignments can be made of the personnel of a bureauor department without first obtaining the consent of the employee concerned

under Sec. 79 (0) of the RAC, such cannot be done when the transfer is with

a viewto his removal. Three justices diSi'Sented.They maintain that the hospi-tal in questionis not like other hospitals becauseit seemsto be a training center

for Philippine doctors and the positionof the organization becomeshighly tech-

nical in nature and such traJlll!feris allowedunder sec. 79 (d) of the Revi'SedAd-

ministrative Code. Furthermore, Lejano's conduct for the past 28 years of

service in the government had been criticized as needing some improvement.

Principle appmes, however', only to of/wers with POlrticuJmrstatUm.-

The ruling tha.t a transfer of officers against their will amounts to are

moval is predicated upon the theory that said officers are appointed to a parti-cular station. Their appointments to their stations are their safeguard. The

court in Miclat v. Ganaden3:2 in applying section 34 of Rep.'UblicAct No. 1800

which provides that "the heads or chiefs of bureaus and offices are hereby

authorized to change the designations of positions .and to make changes in the

assignments of personnel as the exigenciesof the servicemay require: Provided,

however. that such change shall not ,affect the tenure of office of incumbents

of positions, shall not constitute a demotion, either in rank or saLary, nor

result in a change in status, and shaHin all cases be subject to the approval

of the Commissionerof Civil Service", 'statedth,at that section contemplates

the giving of temporary .assignment to a public officer or employee'Witha

Art. XII, sec. 4, Phil. Constitution .

Lacson v. Romero. 57 a.G. 1778; Santos v. Mallare. 48 a.G. 1787; Alzate v. Mabutas, 51a.G. 2452; Gorospe v. De VeyrIa, L-8408, Feb. 17. 1955; Rodriguez v. Del Rosario. L-6715. Oct.30, 1953.

81 G.R. No. L-12220. promulgated August 8, 1960. G.R. No. L-14459, promulgated May 80, 1960.


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fixed and definite place or station, and does not apply to a publie officer or

employeewhose appointment is not for a particular place, where there is no

necessity for the approval of the Civil Service Commissionfor his ,assignment

to another station if the interest of the service should require. The appoint-

ments extended to petitioner and to Ganaden have no definite station and they

are attached to the central office and both may be assigned to ,any place or

station where their services may be needed.

Conversion of '[JQS'itiionamounting to removal-

The eo.n.versionof the position of Assistant General Manager to General

Field Supervisor; the suppression of the salary of the former position; the

,assignmentdf the incumbent assistant to the position of General Field Super-

visor; and the revival of the positions of the Asst. General Manager with in.

creased salary; the appointment of another person thereto, amounts to removal

of the incumbent Asst. Gen. Manager surreptitiously. This Wias the ruling inthe case ofBoard of DiJrectorsof the Phil. CluJiritySweepstakes Office v. Alandy

et 01 .38 It appears in this c.asethat on May 21, 1949,Alandy was appointedAsst. General Manager of the Phil. Charity SweepstakesOfficewith an ,annual

compensationof P7,000. In August, 1954, the Board of Directors of said office,

through resolution, converted the position of Asst. Gen. Manager to Field Su-pervisor to which Alandy was formally appointed. In Dec. 1955, the Board,

by resolutio.nNo. 422, resolved to create the position of Asst. Gen. Man;ager

with P10,OOO annual salary and appointed one Ambrosioto this position. Im-

mediately, Alandy objected to this appointment and filed a quo WO/N'antopeti-

tion, claiming the position of General Manager for himself. The trial court

declared the Resolution No. 422 null and void, declaring Aland:r entitled tosaid position and ordering payment to the latter of the difference in salary

between P10,OOO and !'7,OOO from the effective date of the resolution. Thisorder declaring the nullity of the resolution was affirmed by the higher court.

However, .an increase in the appropriatio.n or salary should not automaticallyentitle the holder of the position to such increased salary. A new appointment

is necessUlT"/lto entitl6 the employee to the differe7IU between th6 old and the

new 'l'at68. Alandy may not therefore receive the increased salary until andunless expressly authorized to receive said promotionin salary.

E. Modificationof Penalties

Modification of penalty from removal (for adrministrative chAJrges) to mere 81t8-. pension is not eXone'I'atixm..--

Petitioner, a justice of the peace,was found guilty of administrative charges

filed against him ,and was subsequently removed from office by Adm. Order

No. 53 of the President. There.after, respondent Fernandez was appointed to

said office. Upon request of petitioner for reinvestigatio.nof his case for the

purpose of allowing him to leave the service in a less embarassing 'Wayand of

escaping criminal prosecution,the President issued Adm. Order No. 260, modi-fying the former order in the sense that petitioner is considered as having

resigned effective on the date of his sep,aration from service without preju-

dice to reinstatement. Interpreting this last order as exoneration, petitioner

requested for reinstatement. Held: Adm. Order No. 260did not have the effect

of exonerating petitioner from the charges or justifying the construction that

the same constituted reversal of Order No. 53; it simply modifiedthe penalty

by reducing it from removal to mere suspension. From the time of his re-


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moval, petitioner had -DOtbeen reappointed to his former position, thereby

creating .a vacancy which the President had tined by appointing respondent

Fernandez;34

F. Reinstatement of employeeremovedwithout cause

It is the ministerial duty of proper offW(!IT'W reinstate employee afterhi8 re-

moval found to be with../mt ca.use-If it is proven that an employeehad been suspendedand dismissedwithout

cause contrary to the ~press provision of the Constitution, his reinstatement

becomesa plain ministeri.a.lduty of the proper authority.3S

This principle was applied in the case of Tan 11. Gimernez.36 In this case,

the Commissionerof Civil' Service found petitioner Tan, a head teacher of l\

barrio school,guilty of grave misconduct and required him to resign from the

service with prejudice to reinstatement. Tan appe.a,ledto the Civil Service

Board of Appeals'on time, before the decision had becomefinal and executory.

The Board reversed the Commissioner'Sdecision and .llhsolvedthe petitionerfrom the charge, and the former's decisionwas not reversed or modifiedby the

President. The Board's holding therefore, became the fi.n,a1decision on the

petitioner's case. Consequently, the petitioner's removal from office was not

in accordance 'Withlaw; his reinstatement became a ministerial duty of the

proper .authority; and the payment of back salary w.as merely incidental to

reinstatement.

Officer's faWure to appeal lower court's decision 1IIpooldinghis dismissal is a

lHurto hU t reinstatement-

Appellant Crisologo was appointed patrolm.an in the Cebu police depart-ment; he is II. civil service eligible. Subsequentlyhis services were terminated

due to the abolition of his salary item in the appropriation for 1968-1954. In

January, 1954, Crisologowas reinstated by the mayor but Abayan brought .an

action for quo warranw questioning his removal and the appointment of Cri80-

logo in his place. The lower court declared Abayan entitled to the position, and

,after the judgment had becomefinal, the mayor again dismissed CriSologoand

reinstated Abayan. HeJ4: Appellant has no cause of action since his appoint-

ment was decLaredillegal by the C.F.I. of Cebu. After the decision had be-

come final and executory the mayor compliedwith the judgment of the court.

Since appellant did not appe.a,lfrom said judgment, he is now barred fromseeking reinstatement/'a'

G. Temporary Appointments

It is a rule supported by a long line of decisionsthat where an appointment

is of a tempor.a,rycharacter, the same can be terminated at ple.asureby the ap-

pointing power. A temporary appointment is similar to one made in an. acting

capacity, the essence of which lies in its temporary char.acter and its termin-

ability at pleasure by the appointing power. And one who bears such e.n.ap-

pointment cannot complain if it is terminated at a moment's notice.llT

Bumanlag v. Fernandez. G.R. No. L-1l48, promulgated Nov. 29, 1960.See Batungbakal v. N.D.C. 49 O.G. 2296; Naric Workers' Union. 52 O.G. 6928; Tabora Y

Montellbono, 52 O.G. 3058. G.R. No. L-1252r>. promulgated February 19. 1960.- Crisologo v. Del Rosario, G.R. No. L-12909. August 24, 1960.IT Cuadro v. Cordova, L-1l602. April 21. 1958; R


11/25

This year, the court added ,a few more cases to support the aiready well-

established principle.lIs A person holding office as a permanent employee,who

subsequently accepts a temporary appointment, instead of protesting the same

actually entered the service in such capacity, changes the nature of his em-

ployment from perm,anent to that of temporary one. By accepting employ-

ment of temponary chamcter in the service, petitioner has. acquiescedor as-sented thereto, and was barred from questioning the legality of his dismissalor lay-off.;319

Under the RevisedAdministrative Code,40any temporary appointment shall

continue only for such period not exceeding three months. After such period,

the appointment of tempor,aryemployeesexpires and they can be replacedby the

appointing authority.41

H. Void Appointment

In Mariboo v. Ortiz, et 01.,42 it appears that petitioner was appointed Chief

of Policeby the acting mayor ToribioChiongwhoplacednumber five as councilor

in the elections of November, 195.1, in spite of the fact that the highest num-

ber of votes for councilor was garnered by Ortiz and the second highest by

one Dianna. On January 1, 1956, Ortiz was elected mayor and he advised peti-

tioner to leave the office. He appointed a new chief of police,and this action

was filed to compel the mayor and the treasurer to pay the salaries of peti-

tioner.

The court said that under section 2195 of the Rev. Administrative Code,43

the designation by the former Mayor Fortunato Villalon of councilor Chiong,

who signed the appointment of petitioner, was illegal since he W,gs only num-ber fiv: in the election. Not being a de jure officer, Chiong cannot appoint

petitioner ,as chief of police. Furthermore, petitioner's appointment was not

approved by the Commissionerof Civil Service nor by the President, whereas,

the appointment of the new appointee made by the respondent Ortiz was ap-

proved on January 16, 1956.

I. Employees of government institutions.

EmpThyees of th e National EOOfbO'micCouncil embraced within Civil SeIf" IJ ice-

Prior to July 1, 1958, petitioners were employeesof the National EconomicCouncil with salaries paid from counterpart funds ,and Philcusa special appro-priations. In the budget for the fiscal year 1958-59, their positions were in-

tegrated into the appropriation for the Bureau of Census and Statistics. The

See. of Commerceand Industry issued and gave due course to new appoint-

ments in tavor of petitioners as incumbents of positions integrated with the

Census Bureau, but at reduced ratlM of oolaries, despite the opinion of the

Montero v. Castellanes. G. R. No. L-12694, prom. June 30, 1960; U.P. v. C.I.R., G.R. NoL-16416, prom. April 28, 1960; De la Torre v. Trinidad, G.R. No. L-14907, prom. May 31. 1960;Ferrer v. De Leon. G.R. No. L-16076, prom. August 29, 1960. Azuelo v. Arnaldo. G.R. No.L-16144. prom. May 26, 1960; Maid v. Auditor General, G.R. No. L-13623, prom. May 31. 1960.

Quitiquit v. Vlllacorta. G.R. No. L-16048, prom. April 29, 1960; see also Roque v. Presidentof the. Senate. L10949. July 29, 1968; Pinullar v. Pres. of the Senate. L-11667, June 30. 1968;Tolentmo v. Torres, 61 O.G. 763; Ramon v. Porras. CA. 63 O.G. 7286.

Rev. Administrative Code, Sec. 682 Atay v. Doling, G.R. No. L-14680, prom. April 30, 1960; Orals v. Rlbo, L.4946, October

28. 1963; Erauda v. Del Rosario. L-10662, April 28, 1968; Jimenez v. Francisco. 63 O.G. 4894;Pana v. City Mayor, L5700, Dec. 18, 1963; Ramos v. Porras, 63 a .G . 7286; Mendez v. Ganzon.63 O.G. 4836; Palagod v. Torres, L-10027, June 30. 1968.

"G.R. No. L-13760. prom. July 30, 1960 It provides: . Upon the occasion of the absence. suspension. or other tempOrary

dlsabUity of the mayor, his duties shalI be discharged by the vice mayor or If there be no vicemayor by the councilor who at the last general election received the highest number of votes."


12/25

Civil Service Commissioner,andthe Budget Commissionerthat no new appoint-

ments were necessary and that reduction of petitioners' salo.ries could not be

effected. Held: The National Eco.nomicCouncil is an office in the Executive

branch of the government (Com. Act No.2), ,and its employeesare embraced

within the Philippine civils:ervice. The integration of their positions with the

Bureau of Census did not have the effect of depriving petitioners of the status

as civil service employeesor make their salaries subject to reduction at thewin of the respondent Secretary. Petitioners were already employees in the

civil service at the time of the approval of s,aidbudgetary act and no new ap-

pointment for them is necessary.44

Remova.l vf Central Bank EmplJoyees g01Jernedby coorter of that body, '7IJOt by

Civil Service Law-

In. the case of Castilw v. Bayo-na et al..,4lIit was held that the remov,alof

employees of the Central Bank, though they be subject to the Civil Service

Law in other respects, is specially governedby sec. 14 of Republic Act No. 265

(Charter of the Central Bank) the part of which provides:" ... (c) On the recommendation of the Governor. (the Monetary Board) shall flx

. the remunerations. ..nd remo1Ie aU officers nd employees of the Central Bk. with the

exception of the Governor ... " (Underlining ours).

According to the court, the provisions of this section, particularly the ,above

paragraph (C), is sufficientlybroad to vest the Monetary Board with the power

of investigation and removal of its officialsa.ndemployees,except the Governor

thereof. Therefore, the contention that the employeewho is a civil serviceeligible may only be removed under the Civil Service Law, is without merit.

The committeecr~ated in this case to investigate the erring employeepursuant

to the order of the Monetary Board, was therefore validly constituted, and in

proceeding or trying to proceed with said investig.ation,it did not act in excess

or with abuse of discretion.

J. Peace Officers

Detectives in the City vf Manila not embraced in uncOassift,edservice-

Under the well-accepted principles of ejusdem gerwris, secret ,agents in-

cluded in Section 611 (j) of the Rev. Administrative Code416refer to secret or

confidential agents and employeesappointed by provincial authorities and be-

long to the unclassifiedservice; they do not include detectives or comprehendmembers of the Detective Bureau of the Manila Police Department, 'Whoare

embraced in the clo.ssifiedservice pursuant to sec. 670 of the s,aid Code,which

declares that the cla.ssifiedservice embraces all not expressly declared to bein.the unclassifiedservice.

Moreover,detective of the Manila Police Department are not mere agentsaccording to sec. 37 of the Charter of Manil,abut actually peace officers a.nd

actually members of the police force and consequently are in the classified

service.4'1 It is for this reason that they may no longer be removed except for

cause and in the manner prescribed by Republic Act No. 557. Therefore, there

Franche. et al. v. Hernaez. G.R. No. L-16006. prom. October 24. 1960. G.R. No. L-14375. prom. .January 30. 1960. . Sec. 671 partly provides: "The following officers and employees constitute the unclassi-

fied service: x x Jl (j) Secretallies of provincial boards. &ll9istant provincial fiscals. provincial wardens. prov-meial sheriffs. deputy provincial sheriffs. and secret agents.".fOIegario v. Lacson. L-7926. May 21. 1955; Cy v. Rodriguez. L-6772. July 80. 1954; Pa-

!amine v. Zagado. L.6901. March 5. 1954: Abella v. Rodrilr\18Z. L-6867. June 29. 1954: Kfaaionv. del Rosario. L-6754. Feb. 26. 1954: Pineda v. Velez. L-8859. Oct. 31. 1956.


13/25

is nothing illegal in the appointment of an eligible to a cLassifiedposition; the

prohibition in sec. 685 does not apply because he belongs to the classified,notthe unclassifiedservice-liS

In another ease;4,'9it was held that under section 34 of the Charter of

Manila (Rep. Act No. 409), the chief of police may change the assignment

of the city police force, including detectives, if necess,aryin the interest of the

service, without need of first securing the a.pprovalof the Office of the Pres-ident and suell transfer or temporary detail is not a removal or discharge from

the service, in the absence of manifest abuse of diScretionor some improper

motive or purpose.

Mere change in the de8ignatwn of the office ewes not affect the right of civil

serv'ice eligibles to said office; 'retml)valof policemen. for "lack of confi-denc6" violative of R.A. 557-

In Velasco v. Court of /Appeals et aL,50 Guillermo Teves, a civil service

eligible, was appointed chief of the secret service divisionof Davao City Police

Department. He was dismissed by the mayor for lack of confidenceand on

the ground that his position was abolished. The truth was that only the de-sig;n,a.tionof the name of the office was changed but the officer to occupy it

remains the same. Velasco was appointed as "Detective captain" instead of

"chief of the secret service division"as formerly named and occupiedby Teves.

The lower court held that Teves should be reins.tated'Withback salaries hencethis appe,al.

The Supreme Court found Teves' dismissal without cause. Respondent

Velasco not a civil service eligible and his appointment was temporary. Hemay therefore be replaced by one entitled to office. The court also declaredthat

the dismissal of detectives and/or membersof the city or municipal policeforce

for alleged lack of confidenceis violative of Rep. Act 557.51< There was no abo-

lition of office; only a different name was given and consequentlyTeves' de-

privation of the right to such office is illegal.

Back salaries, however,were not allowed Teves, .sincehis action was dir-

ected only ag.ainst the mayor and Velasco, ,and not against the city. Back

salaries can not be granted without affording either the city itself or the city

councilopportunity to be heard and to prepare its defense.

K. Exhaustion of Administrative Remedies

The doctrines of ripeness for reviewand exhaustion of administrative reme-

dies both imply that the primary condition under 'Whichcourt review may be

sought is that the agency act be final, that is, not subject to any administrative

remedies.52 The reaso,t1for the continued adherence to this rule may be found

in the fact th,at it provides for a policy of orderly procedure which favors a

preliminary administrative sifting process and serves to prevent attempts to

swamp the courts by a resort to them in the first instance.53

The doctrine fbund application in the cases of Ltarena 'V. Lacs07t54 andDe La Torre 'V. Trinidad.55

"Sec. 686. Limitati


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However, in another case,:X;where petitioners wrote to the Commissioner

of Civil Service and to the Secretary of Education, and they failed to obtain

the relief sought, and instead the Director of Public Schools threatened to

replace them, they had already given an opportunity to these high officials to

act upon their petition for relief, which practically is equivalent to an exhaus-

tion of the administrative remedies provided by law. And in another case it

was held that when from the very beginning the action of the city mayor ispatently illegal, arbitrary and oppressive; when manifestly the mayor has acted

without juri.sdictionor has committeda grave abuse of discretion amounting to

lack of jurisdiction; when his act is dearly and obviouslydevoid of any color

of authority; the employeeadversely affected may forthwith seekthe protection

of the judicial department.:x;

L. Gratuity

The right to gratuity equivalent to one month salary for every year in the

government service under section 18(b), par. (3) of Rep. Act No. 1345, isexcludedby the enjoyment of retirement insurance benefits under Rep. Act 660.

Having received retirement insurance benefits under said Act, oll.ppellanthas,

therefore, by his own voluntary act, divestedhimself of his right to gratuity.57

M. Backpay claims

O!fic~8 claim under Rep. Act 304 !maY be get ol! by his indebtedness to gov-

ernment--

In Untalarn v. GelkL,58 it appears that claimant filed a petition in the CFI

of Manila for a declaratIon that the authority gra.ntedby the Auditor Generalto the Treasurer of the Philippines to withhold the proceeds of his backpa.y

under Rep. Act 304 in order to compensatean indebtedness or obligation owed

to the government by the officer or employeeto be null and void. Claimant

based his argument on sec. 5 of Rep. Act 304 which states that "the salaries

or wages or certificates of i.ndebtednessherein provided shall be exempt from

attachment or levy, except for payment of taxes or obligations for which the

particular officers or employeesmay be directly liable as provided i.nthis act".

Held: Appellant's indebtednessis an obligation"for which the particular officer

or employeesmay be directly liable and for that reason his backpa.ybe with-

held and applied in satisfaction of his indebtednessand .allowedunder sec. 624

of the Rev. Administrative Code. When appellant applied for backpay under

Rep. Act 894,a.pprovedJune 20, 1953he had a subsisting obligationto indemnify

the government by virtue of a final judgment rendered on March 10, 1953by

a competent court.

Citing Olegario v. Laeson, L-7926, May 21, 1954; Mission v. Del Rosario, L-6754, Feb.25, 1954; Abella v. Rodriguez. 1.-6901, March 15, 1954; Quintos v. Lac80n. L-8062, July 18, 1955.

PARKER,ADMINISTRATIVELAw (1952) 260.50 U.S. v. Sing Tuek, 194 U.S. 161. G.R. No. L-15696, prom. May 30, 1960.

II

G,R. o. L-I+907, prom. May 31, 1900. See also Subido . Citll of M 4" u. . , G.R. No. LalMlG~Prom. May 30, 1960, where it was held that court action WlU! not available for recovery of ~-tuity pending approval by the President .

Alzate v. Aldana, G.R. No. L-1


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N. Liability of Officers

Acts of office'l's honestTtyd . cY n e in the line of duty d o 8 J 8 , not rt1li/..etr them I1Ubiect

to claims fM civil liability-

In a race in Santa Ana Hippodrome,the Board of Stewards, even know-

ing that there 'Was ,a faulty start, did not cancel the r.ace. Subsequently,theCommissionon Races cancelledit. Under Rep. Act No. 309, the law governing

the operation of races, the decision of the Board of Steward is final and theaction of the Commissionon Races was in excess of its mere power of super-

vision under the same law. The present action is brought by members of theB~rd of Stew.a.rdsfor damages; the Court of Appeals relieved respondents,hence this appeal.

The Supreme Court held that since respondents have acted in their officialcapacity and in the honest belief that they had the power to cancel the race

held, they cannot be held liable. The court quoted American Jurisprudence:

As a rule, a public officer x x x Is not personally liable to one Injured in con-

sequence of an act performed within the scope of his official authority and In the line of

his official duty. In order that acts may be done within the scope of official authority

it Is not necessary that they be prescribed by statute or specifically directed but it is

sufficient if they are done by officer In relation to tters committed by law to his e


16/25

have to give way to petitioners' superior righVa Back salaries and damages

were properly ,awarded to petitioners aside from the order reinstating them

since respondent acted with gross negligence amounting to malice .and bad

faith.\;2

Q. Veterans; preference

Prefe-renee given to veterans oonstrued

Section 5 of Republic Act No. 1363 provides that in order to enable a vet-

eran to obtain preference, it must be shown that he has approximately the same

qualifications ,as other applicants, and that it is not intended that a veteran

shall have priority over civil service eligibles, unless he himself is of the same

or higher civil service eligibility. In the case of Gomoles v. A.ldana,63 the

principal question was whether w.ar veteran employees, given temporary ap-

pointments as industrial arts teachers in a public school, may be replaced by

civil service eligibles, when at the time, there were non-veterans temporary

appointees who could be replaced first. Petitioners Gonzales and Alcazar arenot civil service eligibles, but they had approximately the siame qualific.ati


17/25

fore Kampusti f,ailed with the Commission on Elections for the annulment of

the canvass and the Commission took cognizance of the petition. The mayor

eleet 1Ued a motion to dismiss but the Commission denied it hence this present

action for certiorari and prohibition contesting the jurisdiction of the Com-

mission to entertain such petitioo to prevent the proclamation.

It was held by the Supreme Court that the Commission has ,authority to

annul proclamation on the ground of illegal canvass;1'Oproclamation based on

incomplete returns,l1 proclamation made despite a timely petition filed with the

board of c.anv,assers by all the members of the election inspectors calling at-

tention to an inadvertent and unintentional mistake in the election returns and

correcting' the same, as ,well as the petition by the candidate affected to give

him opportunity to go to the court both of which petitions were denied by

the board,12 and proclamation m.ade in ,an unauthorized meeting of the Board

of Canvassers because held over the objection of the Commission's representa-

tive and against the express instructions of the Commission itself in the exer-

cise of its advisory power.1S Under sections 163 and 168 of the Revised Elec-

tion Code whenever there are contmdictory statements the board itself or ,any

c,andidate affected may resort to court and in pursuance with these sections

the Commission promulgated its rules and instructions in Case No. C.E. 334(K)

providing for the suspension of canv.ass in cases of contradictory statements

of the electioo returns in order to determine the true result. The Commission

has power to annul proclamations a'lnd it has jurisdiction to entertain a petition

of the affected party for the purpose of determining whether there are grounds

for suspending the proclamation. It would be incongruous to declare the Com-

mission with authority to .anlnul a proclamation and without authority to enter-

tain and investigate a petition to prevent a proclamation.

B. ProcLamation in violation of the Commission's instructions; effect of procla-

mation after canvass based on photostatic copy

In the c.ase of Santos v. Commission O 'n Elections 14 the proclamation of

one of the candidates for mayor by the board of canvassers' in violation of an

express instructions of the Commission not to proceed with the same until

further orders ,and signed by only five of the ten members of the board of

canvassers which is not a majority thereof, was declared null and void. The

Court further s,aid that e. proclamation made by a board of canvassers after-a canvass of the votes based on the photostatic copy of the duplicate received

by the Commission and not on the basis of the original !'eturns for the precinct

received by the municipal treasurer as prescribed by law be declared null and

void. It would be dangerous .according to the Court "to authorize the board

of c.a.nvassers to use any copy of the return other than the one indicated by law,

without first establishing that the latter is not available."

Jurisdiction .af CFI to annul proclamation made by the Bomrd of Canvassers-

In the case of Municipal Board of CanV(ll88EmS,et al., v. Benitez, et al.,ITs

it was held that the Court of First Instance has no jurisdiction to entertain a

petition for mandamus for ,alleged anomalies committed by the municipal board

'i'O Mintu v. Enage et al.. G.R. No. L-1834. December 31, 1947; Ramos v. Commission onEleetions. 80 Phil. 722

n Abenda.nte v. Relato, G.R. No. L-6813. Noveml>&r 6, 111li3.'12 Laeson v. Commission. G.R. No. 1.-16261. December 28. 1969Santos v. Commission on EJections. G.R. No. 1.-16413. lanuary 26, 196(,.,. G.R. No. L-16413. January 26, 1960. G.R. No. 1.-16319, prom. lune 80, 1960.


18/25

of canvassers in the canvassing of votes and the ilIubsequentproclamation'of

the result thereof, to the extent of annulling said proclamation, after the Com-

mission on Elections had already taken steps to suspend the members of the

board of c,anvassersBnd hada,ppointed substitutes to take their place.

C. Certificate of Candidacy-Substantial compliancewith Section 3516 is suf-

ficient.When the ElectionLaw doesnot provide that a departure from a prescribed

form will be fatal and such procedure has been due to an honest miSUlkeor

misiJ1terpreta,tio.nof the Election Law on the part of him who was obligatedto

observeit, and such departure has not been used as a means of fraudulent prac-

tices or for the intimidation of voters Bnd it is clear that there has been a

free and honest expression of the popular will, the law will be held directory

and such dep,arture will be cOllsidereda harmless deficiency.11Thus in the

ee.seof Canceran et 01. v. Commission on Electwns,18 the Commissiondeclared

null and void a certificate of' candidacy filedwith it on the ground that it was

not subscribedunder oath by the secret,aryof the party chapter in the localityand because it failed to state that the persons ,namedtherein are official can-

didates of the party in said municipality. On appeal, the Supreme Court re-

versed the decision stating that the statements contained in the certificate of

candidacy to the effect that the local chapter chairman of the politic.alparty

in the municip,alityannounces the candidacy of the petitioners and that they

belO'l1gto the party may be consideredsubstantial compliancewith the require-

ments of section 35. This f.act coupledwith the fact that the said local chapter

chairman did not attest to the c,andidacyof any other person than the candi-

dates mentioned in the certificate filed by him, conveys the impression that

the petitioners have been officiallynominated by said party as its official c,an-didates. The failure of the local secretary of the party to sign the certificate

due to his honest belief that being one of the official candidates for councilor

of said p,arty, he was no longer authorized to sign the same, is an honest mis-

take of fact which doesnot invalidate the certificate. Moreovera timely motion

for reconsideration was filed where the names of the chairman and the secre-

tary of the party in the municipality, the very officialsrequired by the statute

to sign said certificate were included. This cured the defects originally existing.

D. New Political Subdivision.

Even though a new municipality is holding its first election to fill its

municipal offices, the provincial board can only assume the functions of a

municipal board of canvassers if the municipal council concernedhas not yet

been constituted, otherwise the latter shouldact, the provisionof section167(B)

of the' Revised Election Codebeing applicable only when officesof the munici-

pality have not yet been filled. This 'WaS the ruling in the, case of Salcedo 'lJ.

C~n on Elections.19 It appears that the municipality of Bansud, Orien-tal Mindoro, which was newly created by Rep. Act 2514 was to hold for the

first time an election to fill its municipal offices, including that of mayor ,and

amQngthe candidates who filed their certifiootes for this office were Filemon

,. Section 36 of the Revised Election Code provides In part: "Certificate of candldaey ofcancHckte may be filed b)' a pl>lIUcaI party nominating them without the signature or _tb ofsaid candidates.

"Any political party haviug officially nl>luinated candidates shall file with the Commiuionon Elections a certificate of such official nominations subscribed under oath by the presidentand secretary or corresponding officers of such political group or party. x x x"

"Gardiner v. Romulo. 26 PhiL 621."IS G.R. No. L-1632, March 30, 1960.10 G.R. No, L-16360. January 29. 1960.


19/25

Salcedo Jr. and Leon Mampusti. The provincial board of Oriental Mindoro,

acting as municipal board of canv,assersof the new municipality pursuant to

the provisions of section 167(B) of the Revised Election Codeproclaimed Sal-

cedo as mayor-elect. Mampusti filed a petition with the Commissionto Mlnul

the canvass and proclamation made by the said provincial board on the ground

that such shouldhave beendoneby the municipalcouncilof the newmUlllicipality.Said petition was granted and the Commissionordered the municipal board of

canv.assers of the new municipality to immediately make a new canvass and

thereafter proclaim the winning candidates. The provincial board was also

ordered to deliver to the municipal treasurer all election retilrns submitted by

the inspectors of said municipality. Petitioner filed the present petition for

certiorari with preliminary injunction to set aside the resolution of the Com-

mission

The Court held that the provincial bo.ardef Mindoroerroneously acted as

municipal board of canvassers of the new municipality for the simple reason

that at the time it acted as such there was already a municipal councilexisting.

While section 167(B) of the Revised Election Code provides "For the first

election in a new municipality the provincial board of OOlDvassersto proclaim

the result of the municipal elections," however this provision should be inter-

preted in conjunction with section 10 of the same code which provide that

"In the absence of a municipal or city council, the provincial board shall per-

form the duties of the former with respect to the first election in the new

political subdivision,"from which it is logical to infer that evenif a newmunici-

pality is holding its first election to fill its municipal offices, the provincial

board can only assume the functions of a municip.alboard of canvaSSersif the

municipal council concerned has not yet been constituted, otherwise the latter

should act.

E. Municipal Board of Canvassers--Member's disqualificationto act.

Section 28 of the Revised Election Code provides that "Any member of a

provincial board or of a municipal councilwho is a candida.tefor office in any

election shall be incompeten.tto act on said body in the performance of the

duties thereof relative to said election. . ." Under this provision, where the

members of the provincial bOlardwere all candidates for reelection they were

all held to be disqualifiedto ,act as board of canvassers to proclaimthe resultof the municipal elections in a 'new municipality, since the law consider them

incompetent to act in the provincial board in the performance of its duties in

connectionwith the election.so

In the case of Acain et al. 'II. BOOlT'd of Ca?t'lla88e'rSof Cmrmen, IAgwsan

et 01.,81 Jose Malimit and Esteban Degamo were candidates for mayor. The

Municipal Board of Canvassers by ,a vote of five to three proclaimed Malimit

as mayor-elect. The three members objected to is,aidproclamation and refused

to sign the certificate of canvass on the ground that the municipal treasurer's

copy of the election returns for a certain precinct had been tampered with

during the canvass The Commissionby a resolution found the tampering trueand the five members who signed the certificate of canv,assand proclamation

were guilty of falsificationapart from violating subparagraph K, paragraph IV

of resolution No. 334 directing board of canvasSers in the event of conflict

between several statements of the election returns ,and when said difference

Sakedo v. Commission on Elections, G.R. No. L-16360, January 29. 1960. For the factssee footnote 79.

InG.R. No. L-16445, May 23, 1960.


20/25

affects the result to suspend the canvass 8IJldprocle.mationwhile the aggrieved

party sought to ask a recount before the proper court. The Commissionan-

nulled the canvass and proclamation, suspended the five members, IIU1d,author-

ized the representative of the Commissionto appoint the substitutes. The new

board of canvassers with the substitutes appointed participating made a re-

canvass .and proclaimed Degarnoand Palarca as mayor and vice mayor respec-

tively. On January 4, 1960 Malimit and Acain instituted the present actionfor p~hibition, mandamus and certiorari with preliminary injunction to pre-

vent the enforcement of the proclamation and to set aside said procl.arn.ation

contending that it is void because the substitutes were not electors of Carmen,

Agusan belonging to the party of the suspended and substituted members.

A writ of preliminary injunction was issued by the lower court hence this

appeal by Degamo and Pa1arc,afor its dissolution.

Oneof the questions rai.gedwas the validity of the substitution. The Court

held it was valid since section 16782 of the Revised Election Code providing

for the appointment to the municipal board of canvassers of "registered voters

of the same p,arty" as the members of the said bo.ardexcludedtherefrom applies

only when the latter are candidates" for the election not when temporary sub-

stitutes are appointed due to suspension of members, under section 3 of the

said code on account of irregularities committedin the discharge of their duties

in the conduct of election.

F. Applicability of quo warranto, injunction, contempt, mandamus.

One of the issues decided in the c,aseof Ac4in 11 Boatrd of Ca:ntlJQ,B8f!'r8,83

is the validity of the issuance by the lower court of the writ of preliminary

injunction despite the fact that the defendant mayor elect was already aasurningsaid office at the time of the filing of the petition.. The Supreme Court held

that the issuance was not proper since at the time of the filing of the petition,

defendants 'Werenot "merely threatening to ,assume the office of mayor and

vice mayor respectively" ,as alleged in the petitiion on January 4, 1960 but

hadalreedy assumed said office since January 1, 1960. Injunction may be

availed of only to restrain an ,act that is about to be done but which has not

materialized but not to undo wha.t has already been consummated.54 Having

assumed office upon the authority of the proclamation made by the board of

canv,assers backed up by the Commissionon Elections Degamo and Palarcaenjoyed at least the rights of a de f,acto officer and their title to said offices

may not be contested except directly by a writ of quo warranto and/or by

election protest not indirectly by questioning the regularity of their proclama-

tion.85 An injunction is not an appropriate remedy for the removal of ,an

officeror the reinstatement of one removedwithout cause.86 The Court further

said since petitioner, M,a.limitfiled with the Court of First Instance of Agusan

a petition for a writ of quo warranto and an election protest against Degamo

on December17,and18 respectivelyupon such filing the Court of First Instance

of Agusan acquired exclusive authority to inquire into and pass upon the title

of Degamo and the v,alidity of the proclamation.

02 Section 167 "Municipal board of canvnssers-(a) The municipal council shall constitutethe municipal board of canvassers, excluding the members who are candidates and who shanbe replaced by the Commi.sion on Elections with registered voters of the same party x x x"

Supra. note 81.Municipal Council of Santa Rosa v. Provincial Board of Laguna, 3 Phil. 206; Matilde v.

Cajucom, 19 Phil. U3; Reyes v. Harty, 21 Phil. 422. Tayko v. Capistrano. 53 Phil. 866; Government v. Binangonan. 28 Phil. 116.UBUen v. Vera. 64 Phil. 868.


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In the case of Mali7l(Ji) v. Maf'c()8 Raveles87 the Court cited the case of

BOOII'd of Canvassers of BOf'ongan v. Benitez, supra, that the discrepancybe-tweeDthe election returns and the certificate given to the watchers did not

under the doctrine of the PCfIT'kule case give jurisdictio.nfor the Court to order

the opening of the ballot boxes for the recounting under sections 163and 168

of the Revised Election Code and cannot annul proclamations based on thisground. It followsthat the lower court in the instant case had no jurisdiction

to issue the preliminary writ of injunctio.nprohibiting petitioners from cOn-

tinuing the canvass blllsedon this discrepancy neither had it jurisdiction infinding petitioners guilty of contempt :lIJldsentencing them accordingly. Im-

prisoned petitioners can avail themselvesof the remedy of oobeas corpu.s since

the order is void and the court has no jurisdiction over the crime or personof the accused. Also in the case of C"amav. del Ro8Cl1'io,8S one of the reasons

why the Supreme Court set aside the writ of mandamus which 'was granted

in the lower court is that in this case the Municip.alBoard of Canvassers sus-

pended the canvass in accordance with sections 163 and 168 of the RevisedElection Code hence according to the court there is no exclusion of ,another

.from a right or office or neglect in the performance of Q duty. On the con-trary the board performed the steps authorized by law. Mandamus is im-

proper.

And in another c,aseit was held that where a protest has been filed andthe protestee has already assumed office, the protestant should seek his relief

in said protest alld not in petition for mandamus and certiorari.8s>

G. Recountingbased on "Statements" under Secs. 163and 168RevisedElection

Code-

"In case It appear to the provincial board of the canvassers that another copy of

other authentic copies of the statement from an election precinct submitted to the board

give to a candidate a different number of votes and the difference affects the results

of the election. the Court of First Instance of the Province upon motion of the 1>oard

w of any candidate affected, may proceed to recount the votes cast in the precinct for

the sole purpose of determining which is the true result of the count of the votes cast

in said precinct for the office in question. Notice of such proceeding shall be given

to all candidates affected:' (Sec. 163)

''The municipal board of canv&tllle1'Sshall meet Immediately after the election, the

municipal treasurer shall produce before It the statements of election from the different

eleetion precincts ftled with him, and the board sJU.n count the votes east for candi-

dates for municipal offiees ~nd proclaim as elected for said offices those who have polled

the largest number of votes for the different offices in the same manner as hereuntofore

provided for the provincial board. and to that end It shall have the same powers In-

cluding that of resorting to the court In case of contradictory statements. The muni-

cipal board of canvassers shall not recount the votes nor examine any of them but shall

proceed upon the statements presented to It. Incase of contradictions or discrepancies

between the copies. of the same statements, the procedure provided in section 163 of this

ClOdeshall be followed:' (Sec. 168)

The above provisions have been repeatedly applied in the recent case. In

Cama v. del Rosan-in;se it appears that Cama and Pa.sta were registered candi-dates for mayor and during the canvassing the board found a discrepancybe-

tween the election returns for a certain precinct submitted by the municipal

treasurer and the Commissionon Elections. The Municipal Board of Ca.n-

'G.R. No. L-16464, July 26, 1960 G.R. Nos. L-16834-40, May 30, 1960. Fot' facts see footnote 89.- Gumpol v. CFI of Isabela, G.R. No. L-16409, 16416 promulgated November 29, 1960. See

Ilote 96a. G.R. Nos. L-16834-40, May 30. 1960.


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V888er8suspended the canv.assuntil it would be determined under sees. 163

and 168 Cama together with the chairman of the board of election inspectorsand the poll clerk fileda petition for ,s.recount but was dismissed. The major-

ity members of the municipal bo.a.rdof canvassers elso filed a verified separate

petition for suspension end recount. The opponent Pasta filed a writ of man-

damus for the continuance of the canvass .and was granted hence this appe,al

by Cama.

The Court held that under sections 163 and 168, the canvass of the election

for a municipal office shall be undertaken by the municipal board of canvassers

on the basis of the statements submitted by the municipal treasurer amdin case

of contradiction the Court of First Instance upon motion will proceed to re-

count the 'Votes. As to what election returns are involvedwas stated in P6I1'-

lade v. Quicho90 to be referring only to the return in.possessionof the muniei-

pal treasurer .and the authentic copies in the possessionof the pro-vineialtreas-

ureran


23/25

for the recounting of 'Votes. Rabe's motion to dismiss was denied so he' fileda petition for certiorari and prohibition asserting excess or abuse of jurisdic-

tion by the Commissionand lack of jurisdiction of the court to order there-

count, the discrepancy being insufficient in law specially after the proclama,tion by the Commissionand lack of jurisdiction of the court to order the re-

v. Commission on ElectJions.94 On January 9, 1960 Rabe filedthis new petitionand allegedthat in Pwrlade case, a court of first instance has no powerto orderthe recounting of votes merely upon a showing of discrepancy between the

election results signed by the inspector and the certificate given to the watchers

(signed by the inspectors too) because discrepancy among the four copies of

the election returns according to Rabe's contention is the sole ground for therecounting of votes and argues that discrepancyis between one electionreturn

and C.E. Form No. 8 and which is not one of the four copies so there shouldbe no recounting.

A majority of the members find that the caSe of Lacson 11. OIml-misswn,

supra, did not pass upon the application of sections 163 and 168 of the Revised

Election Codeto C.E. Form No. 8' as a copy or authentic copy of the statement

from an election precinct Neither did the Pwrlade deciSionhold that discre-pancy among the four copies of the election return constitutes the ooly ground

for a recounting of the votes under aforesaid section. Though the Court did

not expressly state but the holding implies that a conflict between C.E. FormNo. 8 and any of the copies stated in the Pwrlade case may be a basis for a

recount under sections 163 and 168.

J. Election Return, Amendmentsof

In the same case of Rabe v. Commission on Elections, supra, the Court

further held that where the three election inspectors and the poll clerk of a

precinct acknowledgedtheir error of having given a candidate the wrong num-ber of votes in the election return (statement) this makes out a case for cor-

rection or amendment of the election return under section 154 of the Revised

Election Code.9s It pr.actioollyamounted in the instant case to a request by

Rapisura for the Court to authorize the board of inspectors to correct theirstatement and the Court may without any needof openingthe ballot boxesorder

the correction of such error in the inspectoI'1S'statement of the election result

citing the case of Benitez v. Pwredes.96

And in Gumpal 11. The CFl of lsabelaoo a it was held that the Board of

Election Inspectors may file, pursuant to section 154 of the Rev. ElectiOinCode,

a petition for correction of its return dter this statement had been canvassed

by the Provincial Board of Ca:;nv,assersbut before said Board had canvassed

all votes in the province,andproclaimedwho has been elected. The Provincial

Board of Canvassers is charged by law (section 160, REC) with the duly of

canvassing not the electiOinreturn for each precinct, but all the votes cast in

the province and such duty is not deemed compliedwith until completionof

the canvass and separate statements of all the votes received by candidates

shall have been made and the board shall have proclaimedwho has beenelected.

Before the Provincial Board of Canv,assershave taken these steps, the Board

osDizon v. Provincial Board of Canvassers, 52 Phil. 47. G.R. No. L-16261. December 28. 1959. Section 154 Revised Election Code reads. "Alterations In statement-After the announce-

ment of the results of the election In the polling place, the board of Inspectors shall not makeany alterattons or amendment In any of Its statements. unless It be ordered by a competent eourt."

62 Phil. 1 G.R. No. L-16409 and L-16416, promulgated November 29. 1960.


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of Election Inspectors may petition for correction of its returns. Such a peti-

tion for correction may be heard and resolvedwithout notice to other affectedca;ndidatessince said section 154 does not require such notice. It 'Wasfurther

held that any affected candidate ma.yalso file this petition, since section 154

does not specify the party who m.ayinstitute the proceeding therein contem-

plated. So long as the members of the corresp


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and delivering of the ballot boxes it is just and advis.ableaccordingto the courtto allow the protest .already filed to take its due course.

Justices Paras, Jose Gutierrez David and Bautista Angelo dissented, al-though concurring in the result, following also their reasons in their dissent

in the Parlade v. Quicho decisionthat the discrepancybetween the certificate

given to 'Watchersand that of the treasurer justifies openingof the ba.llotboxesfor a recount but they concurred in the result because a.protest has been filed

after the canvass and proclamation.

N. Costs in Election Contests

The facts in Montero v. Guerre'1'o:OOl are ,as follows: After the election ofGuerrero the closest rival Montero filed a protest. The returns were .actually

recanvassed but before its final termination a counter protest was also filed

by Guerrero. Protestant Montero subsequently withdrew from the case and

Guerrero also withdre'Wthe counter protest. This suit is brought by Guerreroto recover "bill of expenses and costs" covering his traveling expenses, ,attor-

neys' fees and for the filing of his answer.

The court held that attorney's fees and expenses are not taxable as costsunder section 102102 of the Revised Election Code and under section 10, Rule

131.103 "Expenses" in election contests should mean actual expenses connectedwith the trial and not expensesthat attorneys and client incurred in preparing

for trial Expenses for bringing the ball-otboxesand the commissioners'fees arealso disallowedbecausethey were incurred in connectionwith the counter protest

but expenses for filing and .attendanceof appellee are allowedas costs. It has

been held that commissioners'fees are proper expenses payable under section180104 and within the terms "expensesand costs."

O. Factual Questions Appealable to the Court of Appeals-

Trajano and Gardicho lWerecandidates for mayor of the municipality ofLawa-an, Samar. Tr,ajano filed a protest against the proclamation of Gar-

dicho as mayor-elect, alleging fraud and irregularities. After trial, Trajanowas declared winner. Gardicho app~aled to the Supreme Court.

Held: While the assigned errors .apparently involvequestions of law, how-

ever, appellant in his discussion states in part that there is no sufficient evi-denceto showa "preconceivedplan to mark ballots '(in the precinct in question)

o r identify them by means of putting the :n,amesof non-candidates in said

ballots," which is a factual questiQD,and therefore not within the jurisdiction

of the Supreme Court to resolve. It results that the present appeal involves

mixed questions of law and fact, cognizable by the Court of Appeals. The

case was remanded to that court.105

101 G.R. No. L-12579. June 30. 1960.101 Section 180 Revised Election Code "Botnds or MBh deposit.-Before the court shall take

cognizance of the protest or a counter protest or admit an appeal. the party who has filed thepleadin& 01' interposed the appeal shall file a bond with two sureties satisfactory to the courtand for such amount as it may fix. to answer for the payment of all expenses and costs inci-dental to said motion or appeal or shall deposit with the court cash in lieu of the hond orhoth as the court may order. The Court in which the contest is pending shall for good reasonorder from time to time that the amount of the bond or cash deposit he increased or decreasedor order the disposition of such deposit as course of the contest may require x x x."

"'"Sec. 1 Rule 131 "Costs O'rdmarily folJq,g reBtJlt of 81I.it.-Unless otherwise provided in theserules costs shall be allowed to the prevailing party as a matter of course but the court shallhave power for speolal reasons to adjudge that either party shall pay the costs of an aetionor 'that the same may be divided may be equitable. No costs shall be allowed against theRePublic of the Philippines unless otherwise provided by law."

- Torres v. Riho. G.R. No. L-5394, April 29, 1953.

PLJ Volume 36 Number 2 -04- Rolando R. Arbues, Et. Al. - Public Officers and Election Law

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Transcript of PLJ Volume 36 Number 2 -04- Rolando R. Arbues, Et. Al. - Public Officers and Election Law