I.
General Principles and The general rule has always been that the
Concept of the Public Office
A. DEFINITION
Public office
It is the right, authority, and duty created
and conferred by law, by which for a given
period, either fixed by law or enduring at
the pleasure of the creating power, an
individual is invested with some portion of
the sovereign functions of the government,
to be exercised by him for the benefit of the
public. (Fernandez v. Sto. Tomas, G.R. No.
116418, March 7, 1995)
The individual so invested is a public
officer. (Laurel v. Desierto, G.R. No. 145368,
April 12, 2002)
Public officer
The public officer, generally, is the one who
holds a “public office.” A public officer is
such an officer as is required by law to be
elected or appointed, who has a designation
or title given to him by law, and who
exercise functions concerning the public,
assigned to him by law.
B. ELEMENTS
1. Created by Constitution or by law or
by some body or agency to which
the power to create the office has
been delegated;
2. Invested with Authority to exercise
some portion of the sovereign power
of the State;
3. The powers conferred and the duties
to be discharged must be defined
directly or impliedly by the
Legislature or through legislative
authority;
4. Duties are performed Independently
without control unless those of a
subordinate; and
5. Continuing and permanent.
(Fernandez v. Sto. Tomas, G.R. No.
116418, March 7, 1995; Tejada v.
Domingo, G.R. No. 91860, January
13, 1992)
C. CREATION
power to abolish a public office is lodged
with the legislature. This proceeds from the
legal precept that the power to create
includes the power to destroy. A public
office is either created by the Constitution,
by statute, or by authority of law. Thus,
except where the office was created by the
Constitution itself, it may be abolished by
the same legislature that brought it into
existence. The exception, however, is that
as far as bureaus, agencies or offices in the
executive department are concerned, the
Presidents power of control may justify him
to inactivate the functions of a particular
office, or certain laws may grant him the
broad authority to carry out reorganization
measures. (Buklod ng Kawaning EIIB vs.
Zamora, G.R. No. 142801-2, July 10, 2001)
D. CHARACTERISTICS
1. It is a Public trust – The principle of
“public office is a public trust” means that
the officer holds the public office in trust for
the benefit of the people—to whom such
officers are required to be accountable at all
times, and to serve with utmost
responsibility, loyalty, and efficiency, act
with patriotism and justice, and lead
modest lives. (1987 Constitution, Art. XI,
Sec. 1)
2. It is not a Property and is outside
commerce of man. It cannot be the subject
of a contract.– The concept "public office is
not a property” means that no officer an
aquire vested right in the holding of a
public office, nor can his right to hold the
office be transmitted to his heirs upon his
death. Neverthless, the right to hold a
public office is a protected right-secured bu
due process and the provision of
Constitution on security of tenure. (Santos
v. Secretary of Labor, G.R. No.L-21624,
February 27, 1968)
3. It is Personal to the public officer – It is
not a property transmissible to the heirs of
the officer upon the latter’s death. (Santos
v. Secretary of Labor, G.R. No.L-21624,
February 27, 1968)
4. It is not a Vested right.
5. It is not a Natural right – Under our
political system, the right to hold public
office exists only because and by virtue of
some law expressly or impliedly creating
and conferring it.
E. CLASSIFICATION
Executive Order No. 649 was enacted to
improve the services and better systematize
the operation of the Land Registration
Commission. A reorganization is carried
out in good faith if it is for the purpose of
economy or to make bureaucracy more
efficient. To this end, the requirement of
Bar membership to qualify for key positions
in the NALTDRA was imposed to meet the
changing circumstances and new
development of the times. Private
respondent Garcia who formerly held the
position of Deputy Register of Deeds II did
not have such qualification. It is thus clear
that she cannot hold any key position in
the NALTDRA, The additional qualification
was not intended to remove her from office.
Rather, it was a criterion imposed
concomitant with a valid reorganization.
(National Land Titles And Deeds
Registration Administration Vs. Civil
Service Commission And Violeta L. Garcia)
Reorganization involves the reduction of
personnel, consolidation of offices, or
abolition thereof by reason of economy or
redundancy of functions. It takes place
when there is an alteration of the existing
structure of government offices or units
therein, including the lines of control,
authority and responsibility between them.
(Canonizado vs. Aguirre, G.R. No. 133132,
January 25, 2000)
As a general rule, a reorganization is
carried out in "good faith" if it is for the
purpose of economy or to make
bureaucracy more efficient. In that event,
no dismissal (in case of a dismissal) or
separation actually occurs because the
position itself ceases to exist. And in that
case, security of tenure would not be a
Chinese wall. Be that as it may, if the
"abolition," which is nothing else but a
separation or removal, is done for political
reasons or purposely to defeat security of
tenure, or otherwise not in good faith, no
valid "abolition" takes place and whatever
"abolition" is done, is void ab initio. There is
an invalid "abolition" as where there is
merely a change of nomenclature of
positions, or where claims of economy are
belied by the existence of ample funds.
(Dario vs. Mison, G.R. No. 81954, August 8,
1989)
II. Requirements for Public Office
A. APPOINTMENT vs. ELECTION
Substantial distinctions clearly exist
between elective officials and appointive
officials. The former occupy their office by
virtue of the mandate of the electorate.
They are elected to an office for a definite
term and may be removed therefrom only
upon stringent conditions. On the other
hand, appointive officials hold their office
by virtue of their designation thereto by an
appointing authority. Some appointive
officials hold their office in a permanent
capacity and are entitled to security of
tenure while others serve at the pleasure of
the appointing authority. Another
substantial distinction between the two sets
of officials is that under Section 55,
Chapter 8, Title I, Subsection A. Civil
Service Commission, Book V of the
Administrative Code of 1987 (Executive
Order No. 292), appointive officials, as
officers and employees in the civil service,
are strictly prohibited from engaging in any
partisan political activity or take part in any
election except to vote. Under the same
provision, elective officials, or officers or
employees holding political offices, are
obviously expressly allowed to take part in
political and electoral activities. (Fariñas vs.
COMELEC, G.R. No. 147387, December 10,
2003)
Appointment
The act of designation by the executive
officer, board, or body to whom that power
has been delegated, the individual who is to
exercise the powers and functions of a given
office. It refers to the nomination or
designation of an individual to an office. the time being, to discharge the powers and
(Borromeo v. Mariano, G.R. No. L-16808, prerogatives of his/her office. There is no
January 3, 1921) vacancy whenever the office is occupied by
a legally qualified incumbent. A sensu
Nature of appointment contrario, there is a vacancy when there is
Appointment is an essentially discretionary no person lawfully authorized to assume
power and must be performed by the officer and exercise at present the duties of the
in which it is vested according to his best office. (Gamboa, Jr. v. Aguirre, G.R. No.
lights, the only condition being that the 134213, July 20, 1999)
appointee should possess the qualifications
required by law. If he does, then the C. DE FACTO vs. DE JURE
appointment cannot be faulted on the
ground that there are others better De jure officer
qualified who should have been preferred. A de jure officer is one who is in all respects
This is a political question involving legally appointed or elected and qualified to
considerations of wisdom which only the exercise the office.
appointing authority can decide. (Luego v.
CSC, G.R. No. L-69137, August 5, 1986) De facto officer (2000, 2004, 2009, 2010
Bar)
Election A de facto officer is one who assumed office
Election is the means by which people under the color of a known appointment or
choose their officials for a definite and fixed election but which appointment or election
period and to whom they entrust for the is void for reasons that the officer was not
time being the exercise of the powers of eligible, or that there was want of power in
government. (Nachura, 2016) the electing body, or that there was some
other defect or irregularity in its exercise,
APPOINTMENT DESIGNATION wherein such ineligibility, want of power, or
It is the selection by It connotes merely defect being unknown to the public.
the proper authority the imposition by
of an individual who law of additional
is to exercise the duties on an
functions of a given incumbent official. DE JURE OFFICER DE FACTO
office. OFFICER
It connotes Shall hold the office Has lawful title to Has possession of
permanence. When only in a temporary the office. and performs the
completed, ususally capacity and maybe duties under a
with its replaced at will by colorable title
confirmation, the appoiting without being
appointment results authority. It does technically qualified
in security of tenure not confer security in all points of law to
unless he is of tenure in the act.
replaceable at the person named. Holding of office Holding of office
pleasure because of rests on right. rests on reputation.
the nature of his Officer cannot be Officer may be
office. removed through a ousted in a direct
Essentially executive Legislative in nature direct proceeding proceeding against
in nature. (quo warranto). him.

B. VACANCIES Effects of the acts of de facto public

Vacancy
Absence should be reasonably construed to
mean ‘effective’ absence, that is, one that
renders the officer concerned powerless, for
officers
1. The lawful acts, so far as the rights of
third persons are concerned are, if done
within the scope and by the apparent
authority of the office, are considered valid
and binding;
2. The de facto officer cannot benefit from
his own status because public policy
demands that unlawful assumption of
public office be discouraged;
NOTE: The general rule is that a de facto
officer cannot claim salary and other
compensations for services rendered by him
as such. However, the officer may retain
salaries collected by him for services
rendered in good faith when there is no de
jure officer claiming the office.
3. The de facto officer is subject to the same
liabilities imposed on the de jure officer in
the discharge of official duties, in addition
to whatever special damages may be due
from him because of his unlawful
assumption of office; and
4. The acts of the de facto public officer,
insofar as they affect the public, are valid,
binding and with full legal effect.