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G.R. No.

L-17915 January 31, 1967 requested, the Commissioner explained that the next two Assistant Revenue Regional
Directors in line for the protested position, as reported for purposes of Administrative
TEODORO M. CASTRO, petitioner and appellant, Order No. 171, were Teodoro Lucero, Assistant Revenue Regional Director I (Regional
vs. District No. 4), with a salary of P6,900 per annum; and Lauro Abraham, Assistant Revenue
AMADO DEL ROSARIO as Commissioner of Civil Service, DOMINADOR AYTONA as Regional Director I (Regional District No. 6), with a salary of P6,000 per annum, but that
Secretary of Finance, since the protested position was for Regional District No. 3, Manila, where Toledo was
MELECIO R. DOMINGO, as Commissioner of Internal Revenue, and TOMAS C. next in rank, and since he was actually performing the functions of the controverted office,
TOLEDO, respondents and appellants. there was no need to make a comparison between his qualifications and those of Castro.
Ramon C. Aquino, Teodoro M. Castro, Leandro C. Sevilla and Antonio M. Castro for On July 1, 1960 the Commissioner of Civil Service rendered his decision dismissing Castro's
petitioner and appellant. protest on the ground that the contested position belonged properly to Regional District
Emma Quisumbing-Fernando and E. M. Fernando for respondent and appellant Toledo. No. 3, where Toledo was the next ranking employee, while Castro was in Regional District
Office of the Solicitor General Edilberto Barot and Solicitor Ceferino S. Gaddi for No. 5, San Pablo City. Hence, Castro filed the present petition asking that Toledo's
respondents and appellants Secretary of Finance, et al. appointment be annulled and that he be declared entitled to the position. As already
MAKALINTAL, J.: stated, the trial court rejected Castro's claim, but at the same time annulled Toledo's
appointment — this last on the ground that his previous appointment as Chief Revenue
This is a proceeding in quo warranto, certiorari and mandamus originally filed in the Examiner was illegal.
Court of First Instance of Manila. The controverted position is that of Assistant Regional
Revenue Director II, Manila, which became vacant on August 24, 1959, upon the Both sides appealed from the decision. Respondents claim that the lower court should
promotion of its occupant, Alfredo Jimenez. Respondent Tomas C. Toledo was appointed not have nullified Toledo's appointment. They contend (1) that the question as to the
in his place, and it is this appointment that is being questioned by petitioner Teodoro M. legality of his previous appointment as Chief Revenue Examiner was neither raised in the
Castro in this proceeding. The court a quo annulled Toledo's appointment, but did not pleadings nor proven at the trial with the consent of the parties; (2) that petitioner was
grant Castro's prayer that respondent officials be ordered to appoint him. precluded by laches from questioning said appointment; and (3) that the same was not
contrary to the Revised Administrative Code.
Toledo's appointment by the Secretary of Finance, upon recommendation of the
Commissioner of Internal Revenue, was made on November 24, 1959, effective as of On the other hand, petitioner argues that the lower court should have ordered
October 1, 1959. When he was appointed Toledo's position was that of Chief Revenue respondents Commissioner of Internal Revenue and Secretary of Finance to appoint him
Inspector, or Chief Revenue Examiner, stationed in Manila. The appointment was to the controverted position because (1) he was senior in rank to Toledo and was the
protested by Castro in a letter he wrote the Commissioner of Internal Revenue on January competent and qualified employee next in line for the position; and (2) the eight other
19, 1960, wherein he alleged that in accordance with the provisions of Section 23 of Assistant Revenue Regional Directors I had waived their rights to the position.
Republic Act No. 2260, otherwise known as the Civil Service Act of 1959, he was the one Castro entered the government service in 1931 as a messenger in the Bureau of Forestry.
who should have been considered for the position. Copy of the letter-protest was He became a clerk in the Bureau of Internal Revenue on February 1, 1937. Then he
furnished the Secretary of Finance. On February 8, 1960 the Commissioner of Internal became successively law clerk, income tax examiner, Chief of Tax Audit Branch and
Revenue, in a first indorsement, informed Castro that "the position of Assistant Revenue eventually, on July 1, 1957, Assistant Revenue Regional Director I.
Regional Director II, R-53, at P6,000.00 adjusted to P6,597.60 per annum, is for Regional
District No. 3, Manila, and the appointment thereto had to be issued to the person On the other hand , Toledo first worked in the Metropolitan Water District on July 16,
actually performing the functions of the position," namely, respondent Toledo, who was 1948. He became employed in the Bureau of Internal Revenue on December 4, 1952,
then acting as Assistant Revenue Regional Officer II, Manila. when he was appointed distillery agent. At the time he left the Bureau on January 15,
1958 his position was that of income tax examiner with a salary of P3,300 per annum. On
On March 8, 1960 Castro appealed to the Commissioner of Civil Service, who indorsed the said date he became a Technical Assistant to the Executive Secretary of the President of
matter to the Commissioner of Internal Revenue with a request for a statement of the the Philippines at P7,200 per annum. On July 1, 1958, when he returned to the Bureau he
comparative qualifications of Toledo and Castro. After setting forth the qualifications as
1
was appointed Chief Revenue Inspector (a new position created under the Appropriation At the time the controverted petition became vacant Toledo was occupying the position
Act of 1958-1959, which look effect on July 1, 1958) at P6,787 per annum. of Chief Revenue Inspector, (or Examiner) while the positions of Assistant Revenue
Regional Director outside the Manila District were occupied by the following:
This case is principally a special civil action in quo warranto. A quo warranto proceeding
is one to determine the right to the use or exercise of a franchise or office and to oust the
Name Salary
holder from its enjoyment, if his claim is not well founded, or if he has forfeited his right
to enjoy the privilege.1 The action may be commenced for the Government by the
Solicitor General or by a fiscal;2 or a person claiming to be entitled to a public office or 1. Teodoro Lucero . . . . . . . . . . . . . P6900
position usurped or unlawfully held or exercised by another may bring an action in his
own name.3 Where a private person files the action, he must prove that he is entitled to 2. Lauro D. Abraham . . . . . . . . . . . 6000
the controverted position, otherwise respondent has a right to the undisturbed
possession of his office.4
3. Ricardo A. Rivera . . . . . . . . . . . . 6000
Castro claims the position by virtue of Section 23, paragraph 3, Republic Act 2260, which
provides: 4. Gaspar L. Angeles . . . . . . . . . . . 5100
Whenever a vacancy occurs in any competitive or classified position in the government
or in any government-owned or controlled corporation or entity, the officer or employee 5. Jaime Araneta . . . . . . . . . . . . . . 6000
next in rank who is competent and qualified to hold the position and who possesses an
appropriate civil service eligibility shall be promoted thereto: Provided, That should there 6. Policronio Blanco . . . . . . . . . . . . 6000
be two or more persons under equal circumstances, seniority shall be given
preference: And provided, however, That should there be any special reason or reasons
why such officer or employee should not be promoted, such special reason or reasons 7. Francisco Tantuico . . . . . . . . . . 6266.40
shall be stated in writing by the appointing official and the officer or employee concerned
shall be informed thereof and be given opportunity to be heard by the Commissioner of 8. Pedro D. Uy . . . . . . . . . . . . . . . . 6000
Civil Service, whose decision in such case shall be final. If the vacancy is not filled by
promotion as provided herein, then the same shall be filled by transfer of present 9. Teodoro M. Castro . . . . . . . . . . . 6000
employees in the government service, by reinstatement, by reemployment of persons
separated through reduction in force, or by certification from appropriate registers of
According to the Commissioner of Internal Revenue, the next two in line for the position
eligibles in accordance with rules promulgated in pursuance of this Act.
in question were Lucero and Abraham. Obviously the position of Chief Revenue Inspector
It appears that for internal revenue tax purposes the Philippines is divided into ten (Examiner) was considered to be of the same rank as the position of Assistant Revenue
regional districts, with Manila as District No. 3. Each district has a Revenue Regional Regional Director for regions other than Manila. And Toledo, who was then Chief Revenue
Director and an Assistant Revenue Regional Director. The Revenue Regional Director for Inspector (Examiner), was chosen because in the opinion of the Commissioner of Internal
the Manila District outranks the nine other Revenue Regional Directors, while the Revenue he was already in the region where the vacancy occurred and therefore was
Assistant Revenue Regional Director for Manila outranks the nine other Assistant more familiar with the work there, and both his salary range and efficiency rating 5 were
Revenue Regional Directors. These nine Assistant Revenue Regional Directors therefore higher than Castro's aside from the fact that he was already performing the functions of
usually aspire to be promoted either to the position of Revenue Regional Director or to the office.
that of Assistant Revenue Regional Director for Manila.
Even on the assumption that Castro possessed, as he claims, better qualifications and a
higher efficiency rating than Toledo, it would avail him nothing because he has failed to
prove that his position was the one next in rank to the vacant office. He was not even the
most senior among the different Assistant Revenue Regional Directors outside the Manila
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District. However, he insists that the eight other Assistant Revenue Regional Directors
waived their rights to the position by their failure to complain against Toledo's
appointment.

Waiver is the intentional relinquishment of a known right. The silence of the eight other
Assistant Revenue Regional Directors does not amount to a waiver on their part. Waiver
must be predicated on more concrete grounds. The evidence must be sufficient and clear
to warrant a finding that the intent to waive is unmistakable.

Castro himself, when he testified, could not categorically state that the eight others were
not interested in the position.6 Not having shown either seniority in rank among the nine
Assistant Revenue Regional Directors outside the Manila District or waiver on the part of
those who were senior to him Castro has failed to establish a clear right to the office which
would entitle him to oust respondent Toledo.

Upon the other hand, the supposed illegality of Toledo's appointment as Chief Revenue
Officer of the Manila District cannot be a ground for the annulment of his appointment
to the controverted position.7 The legality of that earlier appointment may not be
questioned except in a quo warranto proceeding brought by the proper person at the
proper time. To be sure, as heretofore stated this is principally such a proceeding, but
only insofar as the position of Assistant Revenue Regional District II is concerned. It is true
there is an allegation in Castro's petition that the earlier appointment of Toledo as Chief
Revenue officer was illegal.8 But Castro does not claim to be entitled to that other position
and consequently the legality of Toledo's appointment thereto is not properly in issue.
Besides, even if Castro were the proper party to raise that issue, he did so beyond the
time limit prescribed by law.9 Toledo was appointed to said position on July 1, 1958.
Castro had one year from that date to assail the legality of the appointment. The petition
here was filed only on August 6, 1960, or beyond the one-year period.

Wherefore, the judgment appealed from is modified by eliminating therefrom that


portion annulling respondent Toledo's appointment to the position in dispute, and is
affirmed in other respects. Costs against petitioner.

Concepcion, C.J., Reyes, J.B.L., Dizon, Regala, Bengzon, J.P., Zaldivar, Sanchez and Castro,
JJ., concur.

3
G. R. No. L-40295 July 31, 1978 of the Civil Service Law and rules and regulations, absent, as in this case, convincing
showing of palpable error or grave abuse of discretion. After all as We see it, petitioner
ABRAHAM C. SISON, petitioner, rests his case mostly on the Organization Chart and the position description or CSC Form
vs. No. 122-D of respondent Maliwanag, prepared by petitioner himself, which do not carry
HON. EPI REY PANGRAMUYEN, Commissioner of Civil Service; GERONIMO LIPUMANO, the approval of the Mayor, as Department Head, contrary to requirement of
Mayor, Olongapo City; ALFREDO D. OCAMPO, Officer-in-Charge, Civil Service, Regional Memorandum Circular No. 5, S. 1963 of the Commission of Civil Service touching on the
Office No. 3, San Fernando, Pampanga; and EUREKA F. MALIWANAG, Assistant City basis for determining the hierarchical relationships of positions, and, therefore, are not
Assesor, Olongapo City, respondent. necessarily controlling.
BARREDO, J: Withal, the most fatal drawback of petitioner's cause is that he came to the courts out of
Petition denominated as for certiorari us and quo warranto and (1) seeking the time. As already stated, the appointment in controversy was made on November 23, 1973
annulment of the actions of respondents Regional Director and commissioner of Civil and respondent Maliwanag assumed office on the strength thereof, albeit she claims she
Service in respectively attesting and affirming such attestation of private respondent has not been paid her salary. On the other hand, the petition herein was filed only on
Eureka F. Maliwanag's appointment as Assistant City Assessor of Olongapo City, extended March 13, 1975, clearly more than one year after the pretended right of petitioner to hold
by the respondent Mayor of said city on November 23, 1973, and (2) assailing the validity the office in question arose. This single circumstance has closed the door for any judicial
of said respondent Commissioner's decision of May 3, 1974 dismissing petitioner's protest remedy in his favor.
and his resolution dated June 24, 1974 denying reconsideration of said decision, and (3) Petitioner contends in regard to this point that Section 16 of Rule 66 invoked by private
further asking that respondent Commissioner be mandated to appoint petitioner as such respondent refers to actions of quo warranto and since his petition is also
Assistant City Assessor and that private respondent Maliwanag be declared as unlawfully for certiorari and mandamus, said rule is inapplicable. Such contention is not correct. As
usurping said position under a void and illegal appointment. earlier noted in this decision, the allegations supporting petitioner's cause or causes of
In sum, petitioner would want the Court to hold that since at the time of the appointment action boil down to no more than the removal of respondent Maliwanag from the position
in dispute, he was Chief Deputy Assessor exercising, according to his allegation, to which she has been appointed in order to be replaced by him, with a new appointment
immediate administrative control and supervision over respondent Maliwanag, who was in his favor. Necessarily, the ouster of Maliwanag by quo warranto has to be based on a
Senior Deputy Assessor, and inasmuch as he has superior educational and appropriate nullification o her appointment, which petitioner seeks, albeit unnecessarily, by certiorari.
civil service eligibilities to those of said respondent, the appointment aforementioned His ultimate remedy, therefore, is quo warranto. Besides, even if it could be also viewed
extended to the latter by respondent City Mayor is illegal and contrary to law being as mandamus, it is already settled that his latter remedy prescribes also after one year.
violative of the rule of next-in-rank. Petitioner maintains that upon the promotion of the (Cornejo vs. Sec. of Justice, L-32818, June 28, 1974, 57 SCRA 663.) And it is of no avail to
Assistant City Assessor to the position of City Assessor, he, petitioner, instead of petitioner that during the intervening period of more than one year, he was seeking relief
respondent Maliwanag should have been appointed thereto. from the corresponding administrative outhorities. The resort to such administrative
remedy does not abate the period for the judicial action. (Torres vs. Quintos, 88 Phil. 436;
We have carefully considered petitioner's contentions in his petition as well as his reply Galano vs. Roxas, G.R. L-31241, Sept. 12, 1975, 67 SCRA 8.)
to the answers of the respondents and, at best, We find the issues raised by him to be
rather controversial, with the result that it is difficult for Us to categorize respondent WHEREFORE, the petition is dismissed and the restraining order heretofore issued is
public official's impugned actuations as tainted with grave abuse of discretion. hereby lifted effective immediately. No. costs.
Maliwanag's appointment was recommended by the City Assessor and his reasons
therefor, stated in said official's indorsement to the Mayor recommending dismissal of
petitioner's protest thereto and quoted in the record, are substantial and well taken, as,
in fact, they have been reviewed by respondent Commissioner and found to be
sustainable, as he did sustain them. We are loathe to substitute Our own judgment for
that of the Commissioner of Civil Service who is primarily charged with the administration

4
G.R. No. L-34344 February 29, 1988 the present action for recovery of damages and attorney's fees based on the plaintiffs
ouster as a member of the board of trustees and his prosecution for estafa by the
RICARDO AGUIRRE, FELIXBERTO VALDEZ, ESTEBAN RIVERA and ZAMBALES COLLEGES, defendants.
INC., petitioners
vs. The defendants did not deny the material allegations of the second amended complaint
JOSE DUMLAO, and COURT OF APPEALS, respondents. regarding the removal of Jose Dumlao as member of the Board of Trustees of the
Zambales Colleges Inc. and his prosecution for estafa. They contended, however, that the
plaintiff has no right to damages because he was replaced as member of the board of
SARMIENTO, J.: trustees legally in accordance with the Corporation Law and there was no malice in his
prosecution for estafa.
The Court disposes of this three-decade old case, one of the older ones pending herein.
The facts, as found by the respondent Court of Appeals, are not controverted. We quote: The trial court rendered on February 8, 1965 its decision the dispositive part of which
reads:
The plaintiff, Jose Dumlao, bought five shares of stock in Zambales Colleges in 1931. In
July 1950 the plaintiff was elected as a member of the Board of Trustees of the Zambales WHEREFORE, by an overwhelming preponderance of evidence, and in accordance with
Academy, Inc., now Zambales Colleges, Inc. for a term of one (1) year or until his successor law, the Court renders judgment in the first cause of action by:
shall have been elected and qualified. Ordering the defendant Zambales Colleges, Incorporated, to pay the plaintiff in the first
On October 7,1950, the stockholders of Zambales Colleges, Inc., at a special meeting cause of action:
called for the purpose, reduced the number of trustees from seven to five; removed all (a) The amount of P 360.00 as actual damages;
the seven members of the school's board of trustees, and thereafter elected the five
members of the new board. Jose Dumlao was not elected as a member of the new Board (b) The amount of P 1,000.00 as moral damages;
of trustees.
(c) The amount of P 1,000.00 as nominal damages.
Jose Dumlao and others instituted a quo warranto proceeding against the school and its
officials contesting the legality of the meeting held by the stockholders and their election (d) And to pay the costs.
of a new board of five , docketed as Civil Case No. 1374 of the Court of First Instance of The second cause of action is hereby dismissed for lack of evidence.
Zambales The quo warrantoproceeding was dismissed. The petitioners appealed to the
Court of appeals where the case was docketed as CA-G.R. No. 8305-R. SO ORDERED.

In a decision promulgated on August 7,1954, the Court of Appeals ruled: Iba Zambales, February 8,1965.

If it is correct, as we believe it to be correct, that on May 13, 1951, new members of the (Sgd). PEDRO D. CENZON
Board of Trustees were properly elected, and it is presumed that in due time they
Judge
assumed their duties, appellants who had been elected on July 15, 1950, for a tenure of
one year have lost, their right to a restoration. (Record on Appeal, pp. 161-162)
The question is, therefore, a must one, and the instant case should be dismiss as it is The defendants appealed to this Court assigning the following errors:
hereby dismissed. The decision appealed from is so modified; without further costs.
I. THE LOWER COURT ERRED IN HOLDING THAT THE REMOVAL OF APPELLEE AS A
(Exh. C) MEMBER OF THE BOARD OF TRUSTEES OF APPELLANT CORPORATION IS ILLEGAL.
On March 7, 1955, Jose Dumlao commenced in the Court of First Instance of Zambales II. II THE LOWER COURT ERRED IN AWARDING DAMAGES TO THE APPELLEE.
against Ricardo Aguirre, Felixberto Valdes, Esteban Rivera, and Zambales Colleges, Inc.
5
(Appellant's brief, pp. a-b) 1 means to depose any member, nor, indeed, could have contemplated it or the conduct of
its affairs would be seriously jeopardized. 5
xxx xxx xxx
xxx xxx xxx
The respondent Court then rendered judgment holding as follows:
The private respondent, as a consequence of such a holding, and the case having become
WHEREFORE, the decision appealed from is hereby affirmed, with costs against the final and executory, sought to recover damages for his unlawful ouster from office. The
defendant-appellant. sole issue then is whether or not the petitioners are liable for damages on account of such
SO ORDERED. 2 an unlawful removal.

The petitioners, the defendants-appellants below, urge a lone assignment of error: We hold against the petitioners. As we said, the lone issue is whether or not damages
may be recovered by the private respondents as a result of his removal from office-an act
THE COURT OF APPEALS COMMITTED A MISTAKE IN HOLDING THAT A DIRECTOR OR adjudged to be illegal by the Court of appeals. That decision having attained finality, it is
TRUSTEE OF A CORPORATION CANNOT BE REMOVED FROM OFFICE BEFORE HIS TERM a proper basis of a damage suit, it should be observed that the Court of Appeals (in
EXPIRES UNLESS FOR MISFEASANCE . 3 the quo warranto case) dismissed the private respondent's petition not by reason of the
fact that his removal was lawful — on the contrary, it declared in no uncertain terms that
It should be noted that the incident involved two suits commenced by the private
it was illegal — but because the term of the office he claims to have been usurped had
respondent against the petitioners, Civil Case No. 1374 of the then Court of First Instance
expired. As the respondent Court (in the damages case) would indeed put it: "The case
of Zambales, in the nature of an action for quo warranto (later elevated to the Court of
was dismissed but because it had become moot." 6 But while the dismiss bars the private
Appeals as CA G.R. No. 8305 thereof), and Civil Case No. 1714, a subsequent damage suit
respondent's reinstatement in office, it is no impediment to a recourse to damages. Under
(subject of the appeal to the respondent Court) following the quo warranto ruling. In
Section 15 of Rule 66, of the Rules of Court, "[t]he person adjudged entitled to the office
the quo warranto case, the lower court rendered a dismissal, a disposition modified on
may also bring action against such defendant to recover the damages sustained by such
appeal:
person by reason of the usurpation."
If it is correct, as we believe it to be correct, that on May 13, 1951, new members of the
To rule, therefore, on the legality or illegality of the private respondent's removal, as the
Board of Trustees were properly elected, and it is presumed that in due time they
petitioners would now urge us, is to resurrect a dead issue. The Court of Appeals' decision
assumed their duties, appellants who had been elected on July l5,1950, for a tenure of
declaring that it was illegal is the law of the case between the parties. This Court admits
one year have lost their right to a restoration.
that the question, under the provisions of the old Corporation Law 7 of whether or not a
The question is, therefore, a moot one, and the instant case should be dismiss as it is director may be removed without cause had been a controversial one, 8 but as we stated,
hereby dismissed. The decision appealed from is so modified; without further cost.4 it is not the issue presented for our resolution herein.

xxx xxx xxx WHEREFORE, the petition is DISMISSED. Costs against the petitioners. This Decision is
IMMEDIATELY EXECUTORY.
Furthermore, it held:
SO ORDERED.
xxx xxx xxx
Yap (Chairman), Melencio-Herrera, Paras and Padilla, JJ., concur.
The by-laws of the corporation do not provide whether any special election may be had
at any time at the will of the stockholders. We believe that after a member of the Board
of Trustees has been selected in an annual election, he is to continue in office until Ms
successor is chosen and duly qualified after the succeeding election. Undoubtedly, he can
be ousted for misfeasance but certainly not through the election of another to take his
place. The corporation's by-laws, in our opinion, do not authorize special election as a

6
G.R. No. 103702 December 6, 1994 performing the duties and functions of their respective offices.3 Invoking the ruling of this
Court in Pelaez v. Auditor General,4 the petitioning municipality contended that Executive
MUNICIPALITY OF SAN NARCISO, QUEZON; MAYOR JUAN K. UY; COUNCILORS: Order No. 353, a presidential act, was a clear usurpation of the inherent powers of the
DEOGRACIAS R. ARGOSINO III, BENITO T. CAPIO, EMMANUEL R. CORTEZ, NORMANDO legislature and in violation of the constitutional principle of separation of powers. Hence,
MONTILLA, LEONARDO C. UY, FIDEL C. AURELLANA, PEDRO C. CARABIT, LEONARDO D. petitioner municipality argued, the officials of the Municipality or Municipal District of
AURELLANA, FABIAN M. MEDENILLA, TRINIDAD F. CORTEZ, SALVADOR M. MEDENILLA, San Andres had no right to exercise the duties and functions of their respective offices
CERELITO B. AUREADA and FRANCISCA A. BAMBA, petitioners, that righfully belonged to the corresponding officials of the Municipality of San Narciso.
vs.
HON. ANTONIO V. MENDEZ, SR., Presiding Judge, Regional Trial Court, Branch 62, 4th In their answer, respondents asked for the dismissal of the petition, averring, by way of
Judicial Region, Gumaca, Quezon; MUNICIPALITY OF SAN ANDRES, QUEZON; MAYOR affirmative and special defenses, that since it was at the instance of petitioner
FRANCISCO DE LEON; COUNCILORS: FE LUPINAC, TOMAS AVERIA, MANUEL O. OSAS, municipality that the Municipality of San Andres was given life with the issuance of
WILFREDO O. FONTANIL, ENRICO U. NADRES, RODELITO LUZOIR, LENAC, JOSE L. Executive Order No. 353, it (petitioner municipality) should be deemed estopped from
CARABOT, DOMING AUSA, VIDAL BANQUELES and CORAZON M. MAXIMO, respondents. questioning the creation of the new municipality; 5 that because the Municipality of San
Andred had been in existence since 1959, its corporate personality could no longer be
Manuel Laserna, Jr. for petitioners. assailed; and that, considering the petition to be one for quo warranto, petitioner
Florante Pamfilo for private respondents. municipality was not the proper party to bring the action, that prerogative being reserved
to the State acting through the Solicitor General.6

On 18 July 1991, after the parties had submitted their respective pre-trial briefs, the trial
VITUG, J.: court resolved to defer action on the motion to dismiss and to deny a judgment on the
pleadings.
On 20 August 1959, President Carlos P. Garcia, issued, pursuant to the then Sections 68
and 2630 of the Revised Administrative Code, as amended, Executive Order No. 353 On 27 November 1991, the Municipality of San Andres filed anew a motion to dismiss
creating the municipal district of San Andres, Quezon, by segregating from the alleging that the case had become moot and academic with the enactment of Republic
municipality of San Narciso of the same province, the barrios of San Andres, Mangero, Act No. 7160, otherwise known as the Local Government Code of 1991, which took effect
Alibijaban, Pansoy, Camflora and Tala along with their respective sitios. on 01 January 1991. The movant municipality cited Section 442(d) of the law, reading
thusly:
Executive Order No. 353 was issued upon the request, addressed to the President and
coursed through the Provincial Board of Quezon, of the municipal council of San Narciso, Sec. 442. Requisites for Creation. — . . .
Quezon, in its Resolution No. 8 of 24 May 1959.1
(d) Municipalities existing as of the date of the effectivity of this Code shall continue to
By virtue of Executive Order No. 174, dated 05 October 1965, issued by President exist and operate as such. Existing municipal districts organized pursuant to presidential
Diosdado Macapagal, the municipal district of San Andres was later officially recognized issuances or executive orders and which have their respective set of elective municipal
to have gained the status of a fifth class municipality beginning 01 July 1963 by operation officials holding office at the time of the effectivity of this Code shall henceforth be
of Section 2 of Republic Act No. 1515.2 The executive order added that "(t)he conversion considered as regular municipalities.
of this municipal district into (a) municipality as proposed in House Bill No. 4864 was
approved by the House of Representatives." The motion was opposed by petitioner municipality, contending that the above provision
of law was inapplicable to the Municipality of San Andres since the enactment referred
On 05 June 1989, the Municipality of San Narciso filed a petition for quo warranto with to legally existing municipalities and not to those whose mode of creation had been
the Regional Trial Court, Branch 62, in Gumaca, Quezon, against the officials of the void ab initio.7
Municipality of San Andres. Docketed Special Civil Action No. 2014-G, the petition sought
the declaration of nullity of Executive Order No. 353 and prayed that the respondent local In its Order of 02 December 1991, the lower court8 finally dismissed the petition9 for lack
officials of the Municipality of San Andres be permanently ordered to refrain from of cause of action on what it felt was a matter that belonged to the State, adding that

7
"whatever defects (were) present in the creation of municipal districts by the President While petitioners would grant that the enactment of Republic Act
pursuant to presidential issuances and executive orders, (were) cured by the enactment No. 7160 may have converted the Municipality of San Andres into a de facto municipality,
of R.A. 7160, otherwise known as Local Government Code of 1991." In an order, dated 17 they, however, contend that since the petition for quo warranto had been filed prior to
January 1992, the same court denied petitioner municipality's motion for reconsideration. the passage of said law, petitioner municipality had acquired a vested right to seek the
nullification of Executive Order No. 353, and any attempt to apply Section 442 of Republic
Hence, this petition "for review on certiorari." Petitioners 10 argue that in issuing the Act 7160 to the petition would perforce be violative of due process and the equal
orders of 02 December 1991 and 17 January 1992, the lower court has "acted with grave protection clause of the Constitution.
abuse of discretion amounting to lack of or in excess of jurisdiction." Petitioners assert
that the existence of a municipality created by a null and void presidential order may be Petitioners' theory might perhaps be a point to consider had the case been seasonably
attacked either directly or even collaterally by anyone whose interests or rights are brought. Executive Order No. 353 creating the municipal district of San Andres was issued
affected, and that an unconstitutional act is not a law, creates no office and is inoperative on 20 August 1959 but it was only after almost thirty (30) years, or on 05 June 1989, that
such as though its has never been passed. 11 the municipality of San Narciso finally decided to challenge the legality of the executive
order. In the meantime, the Municipal District, and later the Municipality, of San Andres,
Petitioners consider the instant petition to be one for "review on certiorari" under Rules began and continued to exercise the powers and authority of a duly created local
42 and 45 of the Rules of Court; at the same time, however, they question the orders of government unit. In the same manner that the failure of a public officer to question his
the lower court for having been issued with "grave abuse of discretion amounting to lack ouster or the right of another to hold a position within a one-year period can abrogate an
of or in excess of jurisdiction, and that there is no other plain, speedy and adequate action belatedly filed, 19 so also, if not indeed with greatest imperativeness, must a quo
remedy in the ordinary course of law available to petitioners to correct said Orders, to warranto proceeding assailing the lawful authority of a political subdivision be timely
protect their rights and to secure a final and definitive interpretation of the legal issues raised. 20 Public interest
involved." 12 Evidently, then, the petitioners intend to submit their case in this instance demands it.
under Rule 65. We shall disregard the procedural incongruence.
Granting the Executive Order No. 353 was a complete nullity for being the result of an
The special civil action of quo warranto is a "prerogative writ by which the Government unconstitutional delegation of legislative power, the peculiar circumstances obtaining in
can call upon any person to show by what warrant he holds a public office or exercises a this case hardly could offer a choice other than to consider the Municipality of San Andres
public franchise." 13 When the inquiry is focused on the legal existence of a body politic, to have at least attained a status uniquely of its own closely approximating, if not in fact
the action is reserved to the State in a proceeding for quo warranto or any other credit attaining, that of a de facto municipal corporation. Conventional wisdom cannot allow it
proceeding. 14 It must be brought "in the name of the Republic of the Philippines" 15 and to be otherwise. Created in 1959 by virtue of Executive Order No. 353, the Municipality
commenced by the Solicitor General or the fiscal "when directed by the President of the of San Andres had been in existence for more than six years when, on 24 December
Philippines . . . ." 16 Such officers may, under certain circumstances, bring such an action 1965, Pelaez v. Auditor General was promulgated. The ruling could have sounded the call
"at the request and upon the relation of another person" with the permission of the for a similar declaration of the unconstitutionality of Executive Order No. 353 but it was
court. 17 The Rules of Court also allows an individual to commence an action for quo not to be the case. On the contrary, certain governmental acts all pointed to the State's
warranto in his own name but this initiative can be done when he claims to be "entitled recognition of the continued existence of the Municipality of San Andres. Thus, after more
to a public office or position usurped or unlawfully held or exercised by another." 18 While than five years as a municipal district, Executive Order No. 174 classified the Municipality
the quo warranto proceedings filed below by petitioner municipality has so named only of San Andres as a fifth class municipality after having surpassed the income requirement
the officials of the Municipality of San Andres as respondents, it is virtually, however, a laid out in Republic Act No. 1515. Section 31 of Batas Pambansa Blg. 129, otherwise
denunciation of the authority of the Municipality or Municipal District of San Andres to known as the Judiciary Reorganization Act of 1980, constituted as municipal circuits, in
exist and to act in that capacity. the establishment of Municipal Circuit Trial Courts in the country, certain municipalities
At any rate, in the interest of resolving any further doubt on the legal status of the that comprised the municipal circuits organized under Administrative Order No. 33, dated
Municipality of San Andres, the Court shall delve into the merits of the petition. 13 June 1978, issued by this Court pursuant to Presidential Decree No. 537. Under this
administrative order, the Municipality of San Andres had been covered by the 10th
Municipal Circuit Court of San Francisco-San Andres for the province of Quezon.

8
At the present time, all doubts on the de jure standing of the municipality must be
dispelled. Under the Ordinance (adopted on 15 October 1986) apportioning the seats of
the House of Representatives, appended to the 1987 Constitution, the Municipality of San
Andres has been considered to be one of the twelve (12) municipalities composing the
Third District of the province of Quezon. Equally significant is Section 442(d) of the Local
Government Code to the effect that municipal districts "organized pursuant to
presidential issuances or executive orders and which have their respective sets of elective
municipal officials holding office at the time of the effectivity of (the) Code shall
henceforth be considered as regular municipalities." No pretension of
unconstitutionality per se of Section 442(d) of the Local Government Code is proferred. It
is doubtful whether such a pretext, even if made, would succeed. The power to create
political subdivisions is a function of the legislature. Congress did just that when it has
incorporated Section 442(d) in the Code. Curative laws, which in essence are
retrospective, 21 and aimed at giving "validity to acts done that would have been invalid
under existing laws, as if existing laws have been complied with," are validly accepted in
this jurisdiction, subject to the usual qualification against impairment of vested rights. 22

All considered, the de jure status of the Municipality of San Andres in the province of
Quezon must now be conceded.

WHEREFORE, the instant petition for certiorari is hereby DISMISSED. Costs against
petitioners.

SO ORDERED.

Narvasa, C.J., Padilla, Bidin, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Quiason, Puno,
Kapunan and Mendoza, JJ. concur.

Feliciano, J., is on leave.

9
G.R. No. L-28113 March 28, 1969 least a de facto corporation, having been organized under color of a statute before this
was declared unconstitutional, its officers having been either elected or appointed, and
THE MUNICIPALITY OF MALABANG, LANAO DEL SUR, and AMER MACAORAO the municipality itself having discharged its corporate functions for the past five years
BALINDONG, petitioners, preceding the institution of this action. It is contended that as a de facto corporation, its
vs. existence cannot be collaterally attacked, although it may be inquired into directly in an
PANGANDAPUN BENITO, HADJI NOPODIN MACAPUNUNG, HADJI HASAN action for quo warranto at the instance of the State and not of an individual like the
MACARAMPAD, FREDERICK V. DUJERTE MONDACO ONTAL, MARONSONG ANDOY, petitioner Balindong.
MACALABA INDAR LAO. respondents.
It is indeed true that, generally, an inquiry into the legal existence of a municipality is
L. Amores and R. Gonzales for petitioners. reserved to the State in a proceeding for quo warranto or other direct proceeding, and
Jose W. Diokno for respondents. that only in a few exceptions may a private person exercise this function of
CASTRO, J.: government. 4 But the rule disallowing collateral attacks applies only where the municipal
corporation is at least a de facto corporations. 5 For where it is neither a corporation de
The petitioner Amer Macaorao Balindong is the mayor of Malabang, Lanao del Sur, while jure nor de facto, but a nullity, the rule is that its existence may be, questioned collaterally
the respondent Pangandapun Bonito is the mayor, and the rest of the respondents are or directly in any action or proceeding by any one whose rights or interests ate affected
the councilors, of the municipality of Balabagan of the same province. Balabagan was thereby, including the citizens of the territory incorporated unless they are estopped by
formerly a part of the municipality of Malabang, having been created on March 15, 1960, their conduct from doing so. 6
by Executive Order 386 of the then President Carlos P. Garcia, out of barrios and sitios1 of
the latter municipality. And so the threshold question is whether the municipality of Balabagan is a de
facto corporation. As earlier stated, the claim that it is rests on the fact that it was
The petitioners brought this action for prohibition to nullify Executive Order 386 and to organized before the promulgation of this Court's decision in Pelaez. 7
restrain the respondent municipal officials from performing the functions of their
respective office relying on the ruling of this Court in Pelaez v. Auditor Accordingly, we address ourselves to the question whether a statute can lend color of
General 2 and Municipality of San Joaquin v. Siva. 3 validity to an attempted organization of a municipality despite the fact that such statute
is subsequently declared unconstitutional.lawphi1.ñet
In Pelaez this Court, through Mr. Justice (now Chief Justice) Concepcion, ruled: (1) that
section 23 of Republic Act 2370 [Barrio Charter Act, approved January 1, 1960], by vesting This has been a litigiously prolific question, sharply dividing courts in the United States.
the power to create barrios in the provincial board, is a "statutory denial of the Thus, some hold that a de facto corporation cannot exist where the statute or charter
presidential authority to create a new barrio [and] implies a negation of the bigger power creating it is unconstitutional because there can be no de facto corporation where there
to create municipalities," and (2) that section 68 of the Administrative Code, insofar as it can be no de jure one, 8 while others hold otherwise on the theory that a statute is binding
gives the President the power to create municipalities, is unconstitutional (a) because it until it is condemned as unconstitutional. 9
constitutes an undue delegation of legislative power and (b) because it offends against An early article in the Yale Law Journal offers the following analysis:
section 10 (1) of article VII of the Constitution, which limits the President's power over
local governments to mere supervision. As this Court summed up its discussion: "In short, It appears that the true basis for denying to the corporation a de facto status lay in the
even if it did not entail an undue delegation of legislative powers, as it certainly does, said absence of any legislative act to give vitality to its creation. An examination of the cases
section 68, as part of the Revised Administrative Code, approved on March 10, 1917, must holding, some of them unreservedly, that a de facto office or municipal corporation can
be deemed repealed by the subsequent adoption of the Constitution, in 1935, which is exist under color of an unconstitutional statute will reveal that in no instance did the
utterly incompatible and inconsistent with said statutory enactment." invalid act give life to the corporation, but that either in other valid acts or in the
constitution itself the office or the corporation was potentially created....
On the other hand, the respondents, while admitting the facts alleged in the petition,
nevertheless argue that the rule announced in Pelaez can have no application in this case The principle that color of title under an unconstitutional statute can exist only where
because unlike the municipalities involved in Pelaez, the municipality of Balabagan is at there is some other valid law under which the organization may be effected, or at least

10
an authority in potentia by the state constitution, has its counterpart in the negative In Norton v. Shelby Count, 12 Mr. Justice Field said: "An unconstitutional act is not a law;
propositions that there can be no color of authority in an unconstitutional statute that it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is,
plainly so appears on its face or that attempts to authorize the ousting of a de jure or de in legal contemplation, as inoperative as though it had never been passed." Accordingly,
facto municipal corporation upon the same territory; in the one case the fact would imply he held that bonds issued by a board of commissioners created under an invalid statute
the imputation of bad faith, in the other the new organization must be regarded as a mere were unenforceable.
usurper....
Executive Order 386 "created no office." This is not to say, however, that the acts done
As a result of this analysis of the cases the following principles may be deduced which by the municipality of Balabagan in the exercise of its corporate powers are a nullity
seem to reconcile the apparently conflicting decisions: because the executive order "is, in legal contemplation, as inoperative as though it had
never been passed." For the existence of Executive, Order 386 is "an operative fact which
I. The color of authority requisite to the organization of a de facto municipal corporation cannot justly be ignored." As Chief Justice Hughes explained in Chicot County Drainage
may be: District v. Baxter State Bank: 13
1. A valid law enacted by the legislature. The courts below have proceeded on the theory that the Act of Congress, having been
2. An unconstitutional law, valid on its face, which has either (a) been upheld for a time found to be unconstitutional, was not a law; that it was inoperative, conferring no rights
by the courts or (b) not yet been declared void; provided that a warrant for its creation and imposing no duties, and hence affording no basis for the challenged decree. Norton
can be found in some other valid law or in the recognition of its potential existence by the v. Shelby County, 118 U.S. 425, 442; Chicago, I. & L. Ry. Co. v. Hackett, 228 U.S. 559, 566.
general laws or constitution of the state. It is quite clear, however, that such broad statements as to the effect of a determination
of unconstitutionality must be taken with qualifications. The actual existence of a statute,
II. There can be no de facto municipal corporation unless either directly or potentially, prior to such a determination, is an operative fact and may have consequences which
such a de jurecorporation is authorized by some legislative fiat. cannot justly be ignored. The past cannot always be erased by a new judicial declaration.
The effect of the subsequent ruling as to invalidity may have to be considered in various
III. There can be no color of authority in an unconstitutional statute alone, the invalidity
aspects — with respect to particular relations, individual and corporate, and particular
of which is apparent on its face.
conduct, private and official. Questions of rights claimed to have become vested, of status
IV. There can be no de facto corporation created to take the place of an existing de of prior determinations deemed to have finality and acted upon accordingly, of public
jure corporation, as such organization would clearly be a usurper.10 policy in the light of the nature both of the statute and of its previous application, demand
examination. These questions are among the most difficult of those which have engaged
In the cases where a de facto municipal corporation was recognized as such despite the the attention of courts, state and federal, and it is manifest from numerous decisions that
fact that the statute creating it was later invalidated, the decisions could fairly be made an all-inclusive statement of a principle of absolute retroactive invalidity cannot be
to rest on the consideration that there was some other valid law giving corporate vitality justified.
to the organization. Hence, in the case at bar, the mere fact that Balabagan was organized
at a time when the statute had not been invalidated cannot conceivably make it a de There is then no basis for the respondents' apprehension that the invalidation of the
factocorporation, as, independently of the Administrative Code provision in question, executive order creating Balabagan would have the effect of unsettling many an act done
there is no other valid statute to give color of authority to its creation. Indeed, in reliance upon the validity of the creation of that municipality. 14
in Municipality of San Joaquin v. Siva, 11 this Court granted a similar petition for
ACCORDINGLY, the petition is granted, Executive Order 386 is declared void, and the
prohibition and nullified an executive order creating the municipality of Lawigan in Iloilo
respondents are hereby permanently restrained from performing the duties and
on the basis of thePelaez ruling, despite the fact that the municipality was created in 1961,
functions of their respective offices. No pronouncement as to costs.
before section 68 of the Administrative Code, under which the President had acted, was
invalidated. 'Of course the issue of de facto municipal corporation did not arise in that Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez and Capistrano, JJ., concur.
case. Teehankee and Barredo, JJ., took no part.

11