G.R. No. 110544 October 17, 1995 Special Civil Action No.

9661, for recognition as members of the

Sangguniang Bayan. It was dismissed on 23 July 1991.
REYNALDO V. TUANDA, Mayor of the Municipality of Jimalalud,
Negros Oriental, HERMINIGILDO FABURADA, (former Vice-Mayor), Thereafter, on 20 June 1991, petitioners filed an action with the Regional
SANTOS A. VILLANUEVA, Incumbent Member of the Sangguniang Trial Court of Dumaguete City to declare null and void the designations of
Bayan, MANUEL LIM, NICANOR R. AGOSTO, ERENIETA K. private respondents as sectoral representatives, docketed as Civil Case
MENDOZA MAXIMINO A. VIERNES, HACUBINA V. SERILLO, No. 9955 entitled "Reynaldo Tuanda, et al. versus Secretary of the
ILUMINADO D. ESTRELLANES, and FORMER MEMBERS OF THE Department of Local Government, et al."
SANGGUNIANG BAYAN OF JIMALALUD, NEGROS
ORIENTAL, petitioners, On 21 July 1991, an information was filed before the Sandiganbayan,
vs. docketed as Criminal Case No. 16936 entitled "People of the Philippines
THE HONORABLE SANDIGANBAYAN, (THIRD DIVISION), versus Reynaldo Tuanda, et al." charging petitioners thus:
BARTOLOME BINAOHAN and DELIA ESTRELLANES, respondents.
INFORMATION

The undersigned Special Prosecution Officer of the

KAPUNAN, J.: Special Prosecutor, hereby accuses REYNALDO V.
TUANDA, HERMENEGILDO G. FABURADA, MANUEL
Petitioners institute this special civil action for certiorari and prohibition LIM, NICANOR P. AGOSTO, ERENIETA K. MENDOZA,
under Rule 65 of the Revised Rules of Court to set aside the resolution of MAXIMO VIERNES, HACUBINA V. SERILLO, and
the Sandiganbayan dated 17 February 1992 and its orders dated 19 SANTOS A. VILLANUEVA of Violation of Section 3(e) of
August 1992 and 13 May 1993 in Criminal Case No. 16936 entitled R.A. No. 3019, as amended, committed as follows:
"People of the Philippines versus Reynaldo Tuanda, et al." denying
petitioners' motion for suspension of their arraignment. That during the period from February 1989
to February 1991 and subsequent thereto,
The present controversy arose from the following antecedents: in the Municipality of Jimalalud, Negros
Oriental, and within the jurisdiction of this
On 9 February 1989, private respondents Delia Estrellanes and Honorable Court, accused, all public
Bartolome Binaohan were designated as industrial labor sectoral officers, Mayor REYNALDO V. TUANDA,
representative and agricultural labor sectoral representative respectively, Vice-Mayor HERMENEGILDO G.
for the Sangguniang Bayan of Jimalalud, Province of Negros Oriental by FABURADA, Sangguniang Members
then Secretary Luis T. Santos of the Department of Local Government. MANUEL LIM, NICANOR P. AGOSTO,
Private respondents Binaohan and Estrellanes took their oath of office on ERENIETA K. MENDOZA, MAXIMO A.
16 February 1989 and 17 February 1989, respectively. VIERNES, HACUBINA V. SERILLO,
ILUMINADO D. ESTRELLANES and
Subsequently, petitioners filed an undated petition with the Office of the SANTOS A. VILLANUEVA while in the
President for review and recall of said designations. The latter, however, performance of their official functions and
in a letter dated 20 March 1989, denied the petition and enjoined Mayor taking advantage of their public positions,
Reynaldo Tuanda to recognize private respondents as sectoral with evident bad faith, manifest partiality,
representatives. and conspiring and confederating with
each other did, then and there, wilfully and
On 4 May 1990, private respondents filed a petition for mandamus with unlawfully cause undue injury to Sectoral
the Regional Trial Court of Negros Oriental, Branch 35, docketed as Members Bartolome M. Binaohan and
 Delia T. Estrellanes by refusing to pay
despite demand the amount of NINETY
FIVE THOUSAND THREE HUNDRED
FIFTY PESOS (P95,350.00) and ONE
HUNDRED EIGHT THOUSAND NINE
HUNDRED PESOS (P108,900.00)
representing respectively their per diems,
salaries and other privileges and benefits,
and such undue injury continuing to the
present to the prejudice and damage of
Bartolome Binaohan and Delia
Estrellanes.
CONTRARY TO LAW.  1
On 9 September 1991, petitioners filed a motion with the Sandiganbayan
for suspension of the proceedings in Criminal Case No. 16936 on the
ground that a prejudicial question exists in Civil Case No. 9955 pending
before the Regional Trial Court of Dumaguete City.2
On 16 January 1992, the Regional Trial Court rendered a decision
declaring null and void ab initio the designations issued by the
Department of Local Government to the private respondents as sectoral
representatives for having been done in violation of Section 146 (2) of
B.P. Blg. 337, otherwise known as the Local Government Code. 3
The trial court expounded thus:
The Supreme Court in the case of Johnny D. Supangan
Jr. v. Luis T. Santos, et al., G.R. No. 84663, along with 7
companion cases of similar import, (G.R. Nos. 05012,
87601, 87602, 87792, 87935, 88072, and 90205) all
promulgated on August 24, 1990, ruled that:
B.P. Blg. 337 explicitly required that
before the President (or the Secretary of
the Department of Local Government)
may appoint members of the local
legislative bodies to represent the
Industrial and Agricultural Labor Sectors,
there must be a determination to be made
by the Sanggunian itself that the said
sectors are of sufficient number in the city
or municipality to warrant representation
after consultation with associations and
persons belonging to the sector
concerned.
The Supreme Court further ruled —
For that matter, the Implementing Rules
and Regulations of the Local Government
Code even prescribe the time and manner
by which such determination is to be
conducted by the Sanggunian.
Consequently, in cases where the
Sanggunian concerned has not yet
determined that the Industrial and
Agricultural Labor Sectors in their
particular city or municipality are of
sufficient number to warrant
representation, there will absolutely be no
basis for the designation/appointments.
In the process of such inquiry as to the sufficiency in
number of the sector concerned to warrant
representation, the Sanggunian is enjoined by law (B.P.
Blg. 337) to consult with associations and persons
belonging to the sector concerned. Consultation with the
sector concerned is made a pre-requisite. This is so
considering that those who belong to the said sector are
the ones primarily interested in being represented in the
Sanggunian. In the same aforecited case, the Supreme
Court considers such prior determination by the
Sanggunian itself (not by any other person or body) as a
condition sine qua non to a valid appointment or
designation.
Since in the present case, there was total absence of the
required prior determination by the Sangguniang Bayan of
Jimalalud, this Court cannot help but declare the
designations of private defendants as sectoral
representatives null and void.
 This verdict is not without precedence. In several similar
cases, the Supreme Court invariably nullified the
designations where the requirements of Sec. 146 (2), B.P.
Blg. 337 were not complied with. Just to cite one case, the
Supreme Court ruled:
There is no certification from the
Sangguniang Bayan of Valenzuela that
the sectors concerned are of sufficient
number to warrant representation and
there was no consultation whatsoever with
the associations and persons belonging to
the Industrial and Agricultural Labor
Sectors. Therefore, the appointment of
private respondents Romeo F. Bularan
and Rafael Cortez are null and void
(Romeo Llanado, et al. v. Hon. Luis
Santos, et al., G.R. No. 86394, August 24,
1990).4
Private respondents appealed the aforestated decision to the Court of
Appeals, docketed as CA-G.R. CV No. 36769, where the same is
currently pending resolution.
Meanwhile, on 17 February 1992, respondent Sandiganbayan issued a
resolution denying the motion for suspension of proceedings filed by
petitioners. Said respondent Sandiganbayan:
Despite the pendency of Civil Case No. 9955 of the
Regional Trial Court of Negros Oriental, it appears,
nevertheless, that the private complainants have been
rendering services on the basis of their respective
appointments as sectoral members of the Sangguniang
Bayan of the Municipality of Jimalalud, Negros Oriental;
and that their said appointments enjoy the presumption of
regularity. Having rendered such services, the private
complainants are entitled to the salaries attached to their
office. Even assuming arguendo that the said Regional
Trial Court shall later decide that the said appointments of
the private complainants are null and void, still the private
complainants are entitled to their salaries and
compensation for service they have actually rendered, for
the reason that before such judicial declaration of nullity,
the private complainants are considered at least de
facto public officers acting as such on the basis of
apparently valid appointments issued by competent
authorities. In other words, regardless of the decision that
may be rendered in Civil Case
No. 9955, the private complainants are entitled to their
withheld salaries for the services they have actually
rendered as sectoral representatives of the said
Sangguniang Bayan. Hence, the decision that may be
rendered by the Regional Trial Court in Civil Case No.
9955 would not be determinative of the innocence or guilt
of the accused.
WHEREFORE, the subject Petition for the Suspension of
Proceedings in Virtue of Prejudicial Question filed by the
accused through counsel, is hereby DENIED for lack of
merit.
SO ORDERED. 5
Petitioners filed a motion for reconsideration of the aforementioned
resolution in view of the decision promulgated by the trial court nullifying
the appointments of private respondents but it was, likewise, denied in an
order issued by respondent Sandiganbayan on 19 August 1992 on the
justification that the grounds stated in the said motion were a mere
rehash of petitioners' original motion to hold the case in abeyance.  The
6
dispositive portion of its order reads as follows:
WHEREFORE, in view of the foregoing, the arraignment
of the accused which was scheduled today is cancelled.
Mayor Reynaldo Tuanda, Hermenegildo Faburada,
Nicanor P. Agosto, Erenieta K. Mendoza, Hacubina V.
Serillo and Iluminado Estrellanes are, however, hereby
ordered to show cause in writing within ten (10) days from
service hereof why they should not be cited for contempt
of court for their failure to appear in court today for
arraignment.
In case of an adverse resolution on the motion to quash
which is to be filed by the counsel for the defense, set this
case for arraignment, pre-trial and trial on January 4 & 5,
1993, on all dates the trial to start at 8:30 o'clock in the
morning.
 SO ORDERED. 7
On 19 February 1993, respondent Sandiganbayan issued an order
holding consideration of all incidents pending the issuance of an
extended resolution.8
No such resolution, however, was issued and in its assailed order dated
13 May 1992, respondent Sandiganbayan set the arraignment of
petitioners on 30 June 1993. The dispositive portion of the order reads:
WHEREFORE, considering the absence of the accused
from the scheduled hearing today which We deem to be
excusable, reset this case for arraignment on June 30,
1993 and for trial on the merits on June 30 and July 1 and
2, 1993, on all dates the trial to start at 8:30 o'clock in the
morning.
Give proper notice to the accused and principal counsel,
Atty. Alfonso Briones. Considering that the accused come
all the way from Himalalud, Negros Oriental, no
postponement will be allowed.
SO ORDERED. 9 court or tribunal.  It is a question based on a fact distinct and separate
Hence, this special civil action for certiorari and prohibition where
petitioners attribute to respondent Sandiganbayan the following errors:
A. The Respondent Court committed grave abuse of
discretion in denying petitioners' motions for the
suspension of the proceedings in Criminal Case No.
16936 in spite of the pendency of a prejudicial issue
before the Court of Appeals in CA-G.R. CV No. 36769;
B. The Respondent Court acted without or in excess of
jurisdiction in refusing to suspend the proceedings that
would entail a retrial and rehearing by it of the basic issue
involved, i.e., the validity of the appointments of private
respondents and their entitlement to compensation which
is already pending resolution by the Court of Appeals in
C.A. G.R. CV No. 36769; and
C. The Respondent Court committed grave abuse of
discretion and/or acted without or in excess of jurisdiction
in effectively allowing petitioners to be prosecuted under
two alternative theories that private respondents are de
jure and/or de facto officers in violation of petitioners' right
to due process. 10
In sum, the only issue in the case at bench is whether or not the legality
or validity of private respondents' designation as sectoral representatives
which is pending resolution in CA-G.R. No. 36769 is a prejudicial
question justifying suspension of the proceedings in the criminal case
against petitioners.
A prejudicial question is one that must be decided before any criminal
prosecution may be instituted or before it may proceed (see Art. 36, Civil
Code) because a decision on that point is vital to the eventual judgment
in the criminal case. Thus, the resolution of the prejudicial question is a
logical antecedent of the issues involved in said criminal case. 11
A prejudicial question is defined as that which arises in a case the
resolution of which is a logical antecedent of the issue involved therein,
and the cognizance of which pertains to another tribunal. The prejudicial
question must be determinative of the case before the court but the
jurisdiction to try and resolve the question must be lodged in another
12
from "the crime but so intimately connected with it that it determines the
guilt or innocence of the accused, and for it to suspend the criminal
action, it must appear not only that said case involves facts intimately
related to those upon which the criminal prosecution would be based but
also that in the resolution of the issue or issues raised in the civil case,
the guilt or innocence of the accused would necessarily be determined. It
comes into play generally in a situation where a civil action and a criminal
action are both pending and there exists in the former an issue which
must be preemptively resolved before the criminal action may proceed,
because howsoever the issue raised in the civil action is resolved would
be determinative juris et de jure of the guilt or innocence of the accused
in the criminal case."13
The rationale behind the principle of prejudicial question is to avoid two
conflicting decisions.  It has two essential elements:
14
(a) the civil action involves an issue similar or intimately
related to the issue raised in the criminal action; and
 (b) the resolution of such issue determines whether or not
the criminal action may proceed. 15
Applying the foregoing principles to the case at bench, we find that the
issue in the civil case, CA-G.R. CV No. 36769, constitutes a valid
prejudicial question to warrant suspension of the arraignment and further
proceedings in the criminal case against petitioners.
All the elements of a prejudicial question are clearly and unmistakably
present in this case. There is no doubt that the facts and issues involved
in the civil action (No. 36769) and the criminal case (No. 16936) are
closely related. The filing of the criminal case was premised on
petitioners' alleged partiality and evident bad faith in not paying private
respondents' salaries and per diems as sectoral representatives, while
the civil action was instituted precisely to resolve whether or not the
designations of private respondents as sectoral representatives were
made in accordance with law.
More importantly, ,the resolution of the civil case will certainly determine if
there will still be any reason to proceed with the criminal action.
Petitioners were criminally charged under the Anti-Graft & Corrupt
Practices Act (RA 3019, sec, 3[e]) due to their refusal, allegedly in bad
faith and with manifest partiality, to pay private respondents' salaries as
sectoral representatives. This refusal, however, was anchored on
petitioners' assertion that said designations were made in violation of the
Local Government Code (B.P. Blg. 337) and thus, were null and void.
Therefore, should the Court of Appeals uphold the trial court's decision
declaring null and void private respondents' designations as sectoral
representatives for failure to comply with the provisions of the Local
Government Code (B.P. Blg. 337, sec. 146[2]), the charges against
petitioners would no longer, so to speak, have a leg to stand on.
Petitioners cannot be accused of bad faith and partiality there being in the
first place no obligation on their part to pay private respondents' claims.
Private respondents do not have any legal right to demand salaries, per
diems and other benefits. In other words, the Court of Appeals' resolution
of the issues raised in the civil action will ultimately determine whether or
not there is basis to proceed with the criminal case.
Private respondents insist that even if their designations are nullified, they
are entitled to compensation for actual services rendered.  We disagree.
16
As found by the trial court and as borne out by the records, from the start,
private respondents' designations as sectoral representatives have been
challenged by petitioners. They began with a petition filed with the Office
of the President copies of which were received by private respondents on
26 February 1989, barely eight (8) days after they took their oath of
office.  Hence, private respondents' claim that they have actually
17
rendered services as sectoral representatives has not been established.
Finally, we find unmeritorious respondent Sandiganbayan's thesis that
even in the event that private respondents' designations are finally
declared invalid, they may still be considered de facto public officers
entitled to compensation for services actually rendered.
The conditions and elements of de facto officership are the following:
1) There must be a de jure office;
2) There must be color of right or general acquiescence
by the public; and
3) There must be actual physical possession of the office
in good faith.18
One can qualify as a de facto officer only if all the aforestated elements
are present. There can be no de facto officer where there is no de
jure office, although there may be a de facto officer in a de jure office.
19
WHEREFORE, the resolution dated 17 February 1992 and orders dated
19 August 1992 and 13 May 1993 of respondent Sandiganbayan in
Criminal Case No. 16936 are hereby SET ASIDE. Respondent
Sandiganbayan is enjoined from proceeding with the arraignment and
trial of petitioners in Criminal Case No. 16936 pending final resolution of
CA-G.R. CV No. 36769.
SO ORDERED.
G.R. No. 179895             December 18, 2008
FERDINAND S. TOPACIO, petitioner,
vs.
ASSOCIATE JUSTICE OF THE SANDIGANBAYAN GREGORY
SANTOS ONG and THE OFFICE OF THE SOLICITOR
GENERAL, respondents.
DECISION
CARPIO MORALES, J.:
Ferdinand Topacio (petitioner) via the present petition for certiorari and
prohibition seeks, in the main, to prevent Justice Gregory Ong (Ong) from
further exercising the powers, duties and responsibilities of a
Sandiganbayan Associate Justice.
It will be recalled that in Kilosbayan Foundation v. Ermita,1 the Court, by
Decision of July 3, 2007, enjoined Ong "from accepting an appointment
to the position of Associate Justice of the Supreme Court or assuming the
position and discharging the functions of that office, until he shall have
successfully completed all necessary steps, through the appropriate
adversarial proceedings in court, to show that he is a natural-born Filipino
citizen and correct the records of his birth and citizenship." 2
On July 9, 2007, Ong immediately filed with the Regional Trial Court
(RTC) of Pasig City a Petition for the "amendment/ correction/
supplementation or annotation of an entry in [his] Certificate of Birth,"
docketed as S.P. Proc No. 11767-SJ, "Gregory Santos Ong v. The Civil
Registrar of San Juan, Metro Manila, et al."3
Meanwhile, petitioner, by verified Letter-Request/Complaint 4 of
September 5, 2007, implored respondent Office of the Solicitor General
(OSG) to initiate post-haste a quo warranto proceeding against Ong in
the latter’s capacity as an incumbent Associate Justice of the
Sandiganbayan. Invoking paragraph 1, Section 7, Article VIII of the
Constitution5 in conjunction with the Court’s Decision in Kilosbayan
Foundation v. Ermita,6 petitioner points out that natural-born citizenship is
also a qualification for appointment as member of the Sandiganbayan
and that Ong has failed to meet the citizenship requirement from the time
of his appointment as such in October 1998.
The OSG, by letter of September 25, 2007, informed petitioner that it
"cannot favorably act on [his] request for the filing of a quo
warranto petition until the [RTC] case shall have been terminated with
finality."7 Petitioner assails this position of the OSG as being tainted with
grave abuse of discretion, aside from Ong’s continuous discharge of
judicial functions.
Hence, this petition, positing that:
IN OCTOBER OF 1998, RESPONDENT WAS NOT DULY-
QUALIFIED UNDER THE FIRST SENTENCE OF PARAGRAPH
1, SECTION 7, OF THE 1987 CONSTITUTION, TO BE
APPOINTED AN ASSOCIATE JUSTICE OF THE
SANDIGANBAYAN, MERELY ON THE STRENGTH OF AN
IDENTIFICATION CERTIFICATE ISSUED BY THE BUREAU OF
IMMIGRATION AND A 1ST INDORSEMENT DATED 22 MAY
1997 ISSUED BY THE SECRETARY OF JUSTICE,
BECAUSE, AS OF OCTOBER 1998, RESPONDET’S BIRTH
CERTIFICATE INDICATED THAT RESPONDENT IS A
CHINESE CITIZEN AND BECAUSE, AS OF OCTOBER 1998,
THE RECORDS OF THIS HONORABLE COURT DECLARED
THAT RESPONDENT IS A NATURALIZED FILIPINO
CITIZEN.8 (Underscoring supplied)
Petitioner thus contends that Ong should immediately desist from holding
the position of Associate Justice of the Sandiganbayan since he is
disqualified on the basis of citizenship, whether gauged from his birth
certificate which indicates him to be a Chinese citizen or against his bar
records bearing out his status as a naturalized Filipino citizen, as
declared in Kilosbayan Foundation v. Ermita.
Ong, on the other hand, states that Kilosbayan Foundation v. Ermita did
not annul or declare null his appointment as Justice of the Supreme
Court, but merely enjoined him from accepting his appointment, and that
there is no definitive pronouncement therein that he is not a natural-born
Filipino. He informs that he, nonetheless, voluntarily relinquished the
appointment to the Supreme Court out of judicial statesmanship. 9
By Manifestation and Motion to Dismiss of January 3, 2008, Ong informs
that the RTC, by Decision of October 24, 2007, already granted his
petition and recognized him as a natural-born citizen. The Decision
having, to him, become final, 10he caused the corresponding annotation
thereof on his Certificate of Birth.11
Invoking the curative provisions of the 1987 Constitution, Ong explains
that his status as a natural-born citizen inheres from birth and the legal
effect of such recognition retroacts to the time of his birth.
Ong thus concludes that in view of the RTC decision, there is no more
legal or factual basis for the present petition, or at the very least this
petition must await the final disposition of the RTC case which to him
involves a prejudicial issue.
The parties to the present petition have exchanged pleadings 12 that mirror
the issues in the pending petitions for certiorari in G.R. No. 180543,
"Kilosbayan Foundation, et al. v. Leoncio M. Janolo, Jr., et al," filed with
this Court and in CA-G.R. SP No. 102318, "Ferdinand S. Topacio v.
Leoncio M. Janolo, Jr., et al.,"13 filed with the appellate court, both of
which assail, inter alia, the RTC October 24, 2007 Decision.
First, on the objection concerning the verification of the petition.
The OSG alleges that the petition is defectively verified, being based on
petitioner’s "personal knowledge and belief and/or authentic records,"
and having been "acknowledged" before a notary public who happens to
be petitioner’s father, contrary to the Rules of Court 14 and the Rules on
Notarial Practice of 2004,15 respectively.
This technicality deserves scant consideration where the question at
issue, as in this case, is one purely of law and there is no need of delving
into the veracity of the allegations in the petition, which are not disputed
at all by respondents.16
One factual allegation extant from the petition is the exchange of written
communications between petitioner and the OSG, the truthfulness of
which the latter does not challenge. Moreover, petitioner also verifies
such correspondence on the basis of the thereto attached letters, the
authenticity of which he warranted in the same verification-affidavit. Other
allegations in the petition are verifiable in a similar fashion, while the rest
are posed as citations of law.
The purpose of verification is simply to secure an assurance that the
allegations of the petition or complaint have been made in good faith; or
are true and correct, not merely speculative. This requirement is simply a
condition affecting the form of pleadings, and non-compliance therewith
does not necessarily render it fatally defective. Indeed, verification is only
a formal, not a jurisdictional requirement. 17
In the same vein, the Court brushes aside the defect, insofar as the
petition is concerned, of a notarial act performed by one who is
disqualified by reason of consanguinity, without prejudice to any
administrative complaint that may be filed against the notary public.
Certiorari with respect to the OSG
On the issue of whether the OSG committed grave abuse of discretion in
deferring the filing of a petition for quo warranto, the Court rules in the
negative.
Grave abuse of discretion implies such capricious and whimsical exercise
of judgment as is equivalent to lack of jurisdiction, or, in other words,
where the power is exercised in an arbitrary or despotic manner by
reason of passion or personal hostility, and it must be so patent and
gross as to amount to an evasion of positive duty or to a virtual refusal to
perform the duty enjoined or to act at all in contemplation of law. 18
The Court appreciates no abuse of discretion, much less, a grave one, on
the part of the OSG in deferring action on the filing of a quo
warranto case until after the RTC case has been terminated with finality.
A decision is not deemed tainted with grave abuse of discretion simply
because the affected party disagrees with it.19
The Solicitor General is the counsel of the government, its agencies and
instrumentalities, and its officials or agents. In the discharge of its task,
the Solicitor General must see to it that the best interest of the
government is upheld within the limits set by law.20
The pertinent rules of Rule 66 on quo warranto provide:
SECTION 1. Action by Government against individuals. – An
action for the usurpation of a public office, position or franchise
may be commenced by a verified petition brought in the name of
the Republic of the Philippines against:
(a) A person who usurps, intrudes into, or unlawfully holds
or exercises a public office, position or franchise;
(b) A public officer who does or suffers an act which, by
the provision of law, constitutes a ground for the forfeiture
of his office; or
(c) An association which acts as a corporation within the
Philippines without being legally incorporated or without
lawful authority so to act.
SEC. 2. When Solicitor General or public prosecutor must
commence action. ─ The Solicitor General or a public prosecutor,
when directed by the President of the Philippines, or when upon
 complaint or otherwise he has good reason to believe that any
case specified in the preceding section can be established by
proof, must commence such action.
SEC. 3. When Solicitor General or public prosecutor may
commence action with permission of court. ─ The Solicitor
General or a public prosecutor may, with the permission of the
court in which the action is to be commenced, bring such an
action at the request and upon the relation of another person; but
in such case the officer bringing it may first require an indemnity
for the expenses and costs of the action in an amount approved
by and to be deposited in the court by the person at whose
request and upon whose relation the same is brought. (Italics and
emphasis in the original)
In the exercise of sound discretion, the Solicitor General may suspend or
turn down the institution of an action for quo warranto where there are
just and valid reasons.21 Thus, in Gonzales v. Chavez,22 the Court ruled:
Like the Attorney-General of the United States who has absolute
discretion in choosing whether to prosecute or not to prosecute or
to abandon a prosecution already started, our own Solicitor
General may even dismiss, abandon, discontinue or compromise
suits either with or without stipulation with the other party.
Abandonment of a case, however, does not mean that the
Solicitor General may just drop it without any legal and valid
reasons, for the discretion given him is not unlimited. Its exercise
must be, not only within the parameters get by law but with the
best interest of the State as the ultimate goal. 23
Upon receipt of a case certified to him, the Solicitor General exercises his
discretion in the management of the case. He may start the prosecution
of the case by filing the appropriate action in court or he may opt not to
file the case at all. He may do everything within his legal authority but
always conformably with the national interest and the policy of the
government on the matter at hand. 24
It appears that after studying the case, the Solicitor General saw the folly
of re-litigating the same issue of Ong’s citizenship in the quo
warranto case simultaneously with the RTC case, not to mention the
consequent risk of forum-shopping. In any event, the OSG did not totally
write finis to the issue as it merely advised petitioner to await the outcome
of the RTC case.
Certiorari and Prohibition with respect to Ong
By petitioner’s admission, what is at issue is Ong’s title to the office of
Associate Justice of Sandiganbayan.25 He claims to have been
constrained to file the present petition after the OSG refused to heed his
request to institute a suit for quo warranto. Averring that Ong is
disqualified to be a member of any lower collegiate court, petitioner
specifically prays that, after appropriate proceedings, the Court
. . . issue the writs of certiorari and prohibition against
Respondent Ong, ordering Respondent Ong to cease and desist
from further exercising the powers, duties, and responsibilities of
a Justice of the Sandiganbayan due to violation of the first
sentence of paragraph 1, Section 7, of the 1987 Constitution; . . .
issue the writs of certiorari and prohibition against Respondent
Ong and declare that he was disqualified from being appointed to
the post of Associate Justice of the Sandiganbayan in October of
1998, considering that, as of October of 1998, the birth certificate
of Respondent Ong declared that he is a Chinese citizen, while
even the records of this Honorable Court, as of October of 1998,
declared that Respondent Ong is a naturalized Filipino; x x x26
While denominated as a petition for certiorari and prohibition, the petition
partakes of the nature of a quo warranto proceeding with respect to Ong,
for it effectively seeks to declare null and void his appointment as an
Associate Justice of the Sandiganbayan for being unconstitutional. While
the petition professes to be one for certiorari and prohibition, petitioner
even adverts to a "quo warranto" aspect of the petition.27
Being a collateral attack on a public officer’s title, the present petition for
certiorari and prohibition must be dismissed.
The title to a public office may not be contested except directly, by quo
warranto proceedings; and it cannot be assailed collaterally, 28 even
through mandamus29 or a motion to annul or set aside
order.30 In Nacionalista Party v. De Vera,31 the Court ruled that prohibition
does not lie to inquire into the validity of the appointment of a public
officer.
x x x [T]he writ of prohibition, even when directed against persons
acting as judges or other judicial officers, cannot be treated as a
substitute for quo warranto or be rightfully called upon to perform
any of the functions of the writ. If there is a court, judge or
 officer de facto, the title to the office and the right to act cannot be
questioned by prohibition. If an intruder takes possession of a
judicial office, the person dispossessed cannot obtain relief
through a writ of prohibition commanding the alleged intruder to
cease from performing judicial acts, since in its very nature
prohibition is an improper remedy by which to determine the title
to an office.32
Even if the Court treats the case as one for quo warranto, the petition is,
just the same, dismissible.
A quo warranto proceeding is the proper legal remedy to determine the
right or title to the contested public office and to oust the holder from its
enjoyment.33 It is brought against the person who is alleged to have
usurped, intruded into, or unlawfully held or exercised the public
office,34 and may be commenced by the Solicitor General or a public
prosecutor, as the case may be, or by any person claiming to be entitled
to the public office or position usurped or unlawfully held or exercised by
another.35
Nothing is more settled than the principle, which goes back to the 1905
case of Acosta v. Flor,36 reiterated in the recent 2008 case of Feliciano v.
Villasin,37 that for a quo warranto petition to be successful,
the private person suing must show a clear right to the contested
office. In fact, not even a mere preferential right to be appointed thereto
can lend a modicum of legal ground to proceed with the action. 38
In the present case, petitioner presented no sufficient proof of a clear and
indubitable franchise to the office of an Associate Justice of the
Sandiganbayan. He in fact concedes that he was never entitled to
assume the office of an Associate Justice of the Sandiganbayan. 39
In the instance in which the Petition for Quo Warranto is filed by
an individual in his own name, he must be able to prove that he is
entitled to the controverted public office, position, or franchise;
otherwise, the holder of the same has a right to the undisturbed
possession thereof. In actions for Quo Warranto to determine title
to a public office, the complaint, to be sufficient in form, must
show that the plaintiff is entitled to the office. In Garcia v. Perez,
this Court ruled that the person instituting Quo Warranto
proceedings on his own behalf, under Section 5, Rule 66 of the
Rules of Court, must aver and be able to show that he is entitled
to the office in dispute. Without such averment or evidence of
such right, the action may be dismissed at any
stage.40 (Emphasis in the original)
The rightful authority of a judge, in the full exercise of his public judicial
functions, cannot be questioned by any merely private suitor, or by any
other, except in the form especially provided by law. 41 To uphold such
action would encourage every disgruntled citizen to resort to the courts,
thereby causing incalculable mischief and hindrance to the efficient
operation of the governmental machine.42
Clearly then, it becomes entirely unwarranted at this time to pass upon
the citizenship of Ong. The Court cannot, upon the authority of the
present petition, determine said question without encroaching on and
preempting the proceedings emanating from the RTC case. Even
petitioner clarifies that he is not presently seeking a resolution on Ong’s
citizenship, even while he acknowledges the uncertainty of Ong’s natural-
born citizenship.43
The present case is different from Kilosbayan Foundation v. Ermita, given
Ong’s actual physical possession and exercise of the functions of the
office of an Associate Justice of the Sandiganbayan, which is a factor that
sets into motion the de facto doctrine.
Suffice it to mention that a de facto officer is one who is in possession of
the office and is discharging its duties under color of authority, and by
color of authority is meant that derived from an election or appointment,
however irregular or informal, so that the incumbent is not a mere
volunteer.44 If a person appointed to an office is subsequently declared
ineligible therefor, his presumably valid appointment will give him color of
title that will confer on him the status of a de facto officer.45
x x x A judge de facto assumes the exercise of a part of the
prerogative of sovereignty, and the legality of that assumption is
open to the attack of the sovereign power alone. Accordingly, it is
a well-established principle, dating back from the earliest period
and repeatedly confirmed by an unbroken current of decisions,
that the official acts of a de facto judge are just as valid for all
purposes as those of a de jure judge, so far as the public or third
persons who are interested therein are concerned. 46
If only to protect the sanctity of dealings by the public with persons whose
ostensible authority emanates from the State, and without ruling on the
conditions for the interplay of the de facto doctrine, the Court declares
that Ong may turn out to be either a de jure officer who is deemed, in all
respects, legally appointed and qualified and whose term of office has not
expired, or a de facto officer who enjoys certain rights, among which is
that his title to said office may not be contested except directly by writ
of quo warranto,47 which contingencies all depend on the final outcome of
the RTC case.
With the foregoing disquisition, it becomes unnecessary to dwell on the
ancillary issues raised by the parties.
WHEREFORE, the petition is DISMISSED.
SO ORDERED.
G.R. No. L-30188             October 2, 1928
FELIPE TAYKO, EDUARDO BUENO, BAUTISTA TAYKO, BERNARDO
SOLDE and VICENTE ELUM, petitioners,
vs.
NICOLAS CAPISTRANO, acting as Judge of First Instance of
Oriental Negros. ALFREDO B. CACNIO, as Provincial Fiscal of
Oriental Negros, and JUAN GADIANI, respondents.
Abad Santos, Camus and Delgado and Teopisto Guingona for
petitioners.
Araneta and Zaragoza for respondents.
The respondent Judge in his own behalf.
OSTRAND, J.:
This is a petition for a writ of prohibition enjoining the respondent judge
from making cognizance of certain civil and criminal election cases in
which the petitioners are parties.
The petitioners allege that the respondent judge, previous to this date,
was appointed judge of the Court of First Instance of Oriental Negros, to
hold office during good behavior and until he should reach the age of 65
years; that he now has reached that age and, therefore, under the
provisions of section 148 of the Administrative Code as amended, is
disqualified from acting as a judge of the Court of First Instance. The
petitioners further allege that in view of the many election protests and
criminal cases for violation of the election law filed in the Court of First
Instance of Oriental Negros arising in the Court of First Instance of
Oriental Negros arising from the last election of June 5, 1928, the
Honorable Sixto de la Costa was duly designated and acted as auxiliary
judge of the Province of Oriental Negros; that between the auxiliary judge
and the respondent judge herein there was an understanding, and the
assignment of the said auxiliary judge was made with this understanding,
that the said auxiliary judge so designated would hear and take
cognizance of all election protests and criminal actions then pending or to
filed arising from the said last general election, and that the respondent
Honorable Nicolas Capistrano would try and hear the ordinary cases
pending in the said court, but, notwithstanding this understanding or
agreement, the respondent judge tried and is still trying to take
cognizance of the election protests an criminal actions in said court; that
the respondent judge declared in open court that he will try the criminal
cases herein mentioned for the reason that the auxiliary judge refused to
try the same on the ground that the preliminary investigations were held
before him, when, in truth and in fact, the said auxiliary judge did not
make the statement imputed to him and was and is still willing to try the
election protests and criminal cases for violation of the election law
pending in the court of the Province of Oriental Negros; that the
respondent Honorable Nicolas Capistrano, in spite of the fact that he was
holding and is now pretending to hold the office of judge of the Court of
First Instance of Oriental Negros, took great interest and active part in the
filing of criminal charges against the petitioners herein to the unjustifiable
extent of appointing a deputy fiscal, who then filed the proper
informations, when the provincial fiscal refused to file criminal charges
against the petitioners for violation of the election law for lack of sufficient
evidence to sustain the same; that said respondent is neither a judge de
jure nor de facto, but that, notwithstanding this fact, he continues to hold
the office of judge of the Court of First Instance of Oriental Negros and
pretends to be duly qualified and acting judge of the said province; and
that he has tried, and continues to try, to act as such judge and that there
is reasonable ground to believe that he will take cognizance of the cases
in question unless he be restrained by order of this court; that in acting as
a duly qualified judge notwithstanding the facts alleged in the fifth, sixth,
and seventh paragraphs hereof, the respondent judge acted and is about
to act without and in excess of jurisdiction and also after the loss of
jurisdiction.
To this petition the respondents demur on the ground that the facts stated
in that (1) none of the facts alleged in the petition divest the respondent
judge of his jurisdiction to take cognizance of the cases referred to in the
complaint, and (2) even admitting as true, for the sake of this demurrer,
the facts alleged in paragraph 7 of the petition, the respondent judge is
still a de facto judge and his title to the office and his jurisdiction to hear
the cases referred to in the petition cannot be questioned by prohibition,
as this writ, even when directed against persons acting as judges, cannot
be treated as a substitute for quo warranto, or be rightfully called upon to
perform any of the functions of that writ.
The ground upon which the petition rests may be reduced to three
propositions. (1) That the assignment of the Auxiliary Judge, Sixto de la
Costa, to Dumaguete was made with the understanding that the he was
to hear and take cognizance of all election contests and criminal causes
for violation of the election law and that the respondent judge was to take
cognizance of the ordinary cases and that there was an understanding
between them that this arrangement was to be followed.
(2) That the respondent judge took great interest and an active
part in the filing of the criminal charges against the petitioners
herein to the unjustifiable extent of appointing a deputy fiscal who
filed the proper informations when the regular provincial fiscal
refused to file them for lack of sufficient evidence.
(3) That the respondent judge is already over 65 years of age and
has, therefore, automatically ceased as judge of the Court of First
Instance of Oriental Negros and that he is neither a judge de
jure nor de facto.
(a) But little need be said as to the first proposition. A writ
of prohibition to a judge of an interior court will only lie in
cases where he acts without or in excess of his
jurisdiction (section 226, Code of Civil Procedure), and it
is obvious that a mere "understanding" as to the
distribution of cases for trial did not deprive the
respondent judge of the jurisdiction conferred upon him
by law. It may be noted that it is not alleged that another
judge had taken cognizance of the cases in question or
that they had been definitely assigned to trial before such
other judge.
(b) The second proposition is equally untenable.  That the
1awph!l.net
respondent judge took great interest and an active part in
the filing of the criminal charges against the petitioners to
the extent of appointing a deputy fiscal when the regular
provincial fiscal refused to file the proper informations, did
not disqualify him from trying the case in question.
Section 1679 of the Administrative Code provides that
"when a provincial fiscal shall be disqualified by personal
interest to act in a particular case or when for any reason
he shall be unable, or shall fail, to discharge any of the
duties of his position, the judge of the Court of First
Instance of the province shall appoint an acting provincial
fiscal, . . . ." (Emphasis ours.)
The determination of the question as to whether the fiscal
has failed to discharge his duty in the prosecution of a
crime must necessarily, to a large extent, lie within the
sound discretion of the presiding judge, and there is no
allegation in the petition that such discretion was abused
in the present instance. It is true that it is stated that the
appointment of the acting fiscal was "unjustifiable," but
that is only a conclusion of law and not an allegation of
facts upon which such a conclusion can be formed and
may, therefore, be disregarded. It follows that in
appointing an acting fiscal, the respondent judge was well
within his jurisdiction.
(c) The third ground upon which the petition is based is
the most important and merits some consideration. It is
well settled that the title to the office of a judge,
whether de jure or de facto, can only be determined in a
proceeding in the nature of quo warranto and cannot be
tested by prohibition. But counsel for the petitioners
maintains that the respondent judge is neither a judge de
jure nor de facto and that, therefore, prohibition will lie. In
this, counsel is undoubtedly mistaken.
The respondent judge has been duly appointed to the office of Judge of
the Court of First Instance of Oriental Negros, but section 148 of the
Administrative Code, as amended, provides that "Judges of the Court of
First Instance and auxiliary judges shall be appointed to serve until they
shall reach the age of sixty-five years." In view of this provision and
assuming, as we must, that the allegations of the petition are true, it is
evident that the respondent is no longer a judge de jure, but we do not
think that it can be successfully disputed that he is still a judge de facto.
Briefly defined, a de facto judge is one who exercises the duties of a
judicial office under color of an appointment or election thereto (Brown vs.
O'Connell, 36 Conn., 432). He differs, on the one hand, from a mere
usurper who undertakes to act officially without any color of right, and on
the other hand, from a judge de jure who is in all respects legally
appointed and qualified and whose term of office has not expired (State
vs. Carroll, 38 Conn., 449; Denny vs. Matton, 2 Allen [Mass.], 361; Van
Slyke vs. Farmers' Mut. Fire Ins. Co., 39 Wis., 390).
Apart from any constitutional or statutory regulation on the subject
there seems to be a general rule of law that an incumbent of an
office will hold over after the conclusion of his term until the
elction and qualification of a successor (22 R. C. L., pp. 554-5).
When a judge in good faith remains in office after his title has
ended, he is a de facto officer (Sheehan's Case, 122 Mass., 445).
Applying the principles stated to the facts set forth in the petition before
us, we cannot escape the conclusion that, on the assumption that said
facts are true, the respondent judge must be considered a judge de facto.
His term of office may have expired, but his successor has not been
appointed, and as good faith is presumed, he must be regarded as
holding over in good faith. The contention of counsel for the petitioners
that the auxiliary judge present in the district must be considered the
regular judge seems obviously erroneous.
In these circumstances the remedy prayed for cannot be granted. "The
rightful authority of a judge, in the full exercise of his public judicial
function, cannot be questioned by any merely private suitor, nor by any
other, excepting in the form especially provided by law. A judge de
facto assumes the exercise of a part of the prerogative of sovereignty,
and the legality of that assumption is open to the attack of the sovereign
power alone. Accordingly, it is a well established principle, dating from
the earliest period and repeatedly confirmed by an unbroken current of
decisions, that the official acts of a de facto judge are just as valid for all
purposes as those of a de jure judge, so far as the public or third persons
who are interested therein are concerned. The rule is the same in civil
criminal cases. The principle is one founded in policy and convenience,
for the right of no one claiming a title or interest under or through the
proceedings of an officer having an apparent authority to act would be
safe, if it were necessary in every case to examine the legality of the title
of such officer up to its original source, and the title or interest of such
person were held to be invalidated by some accidental defect or flaw in
the appointment, election or qualification of such officer, or in the rights of
those from whom his appointment or election emanated; nor could the
supremacy of the laws be maintained, or their execution enforced, if the
acts of the judge having a colorable, but not a legal title, were to be
deemed invalid. As in the case of judges of courts of record, the acts of a
justice de facto cannot be called in question in any suit to which he is not
a party. The official acts of a de facto justice cannot b attacked
collaterally. An exception to the general rule that the title of a person
assuming to act as judge cannot be questioned in a suit before him is
generally recognized in the case of a special judge, and it is held that a
party to an action before a special judge may question his title to the
office of a judge on the proceedings before him, and that the judgment
will be reversed on appeal, where proper exceptions are taken, if the
person assuming to act as special judge is not a judge de jure. The title of
a de facto officer cannot be indirectly questioned in a proceeding to
obtain a writ of prohibition to prevent him from doing an official act nor in
a suit to enjoin the collection of a judgment rendered by him. Having at
least colorable right to the office his title can be determined only in a quo
warranto proceeding or information in the nature of a quo warranto at suit
of the sovereign." (15 R. C. L., pp. 519-521.)
The demurrer to the petition is sustained, and inasmuch as it is evident
that the weakness of the petition cannot be cured by amendment the
present proceedings are hereby dismissed with the costs against the
petitioners jointly and severally. The preliminary injunction hereinbefore
issued is dissolved. So ordered.
G.R. NO. 154674 : May 27, 2004]
THE CIVIL SERVICE
COMMISSION, Petitioner, v. FELICISIMO O. JOSON, JR., in
his capacity as former Administrator of the Philippine
Overseas Employment Administration
(POEA), Respondent.
DECISION
CALLEJO, SR., J.:
This is a Petition for Review on Certiorari of the Decision1 of the
Court of Appeals dated August 12, 2002 reversing Resolution
No. 002778 of the Civil Service Commission (CSC) which denied
the respondents request for payment of the salary of Priscilla
Ong, as Executive Assistant IV in the Office of the Philippine
Overseas Employment Administrator (POEA) for the period of
July 1, 1995 to October 31, 1995.
The antecedents are as follows.
On July 1, 1995, Respondent Felicisimo O. Joson, Jr., then
Administrator of the Philippine Overseas Employment
Administration (POEA) appointed Priscilla Ong as Executive
Assistant IV in his office under a contractual status.The
appointment was made after the Department of Budget and
Management (DBM) thru Director Miguel B. Doctor2 approved
his request for the creation of a contractual position of
Executive Assistant IV at the Office of the POEA Administrator,
effective not earlier than July 1, 1995.
Subsequently, respondent Joson wrote the CSC requesting
exemption from the rule requiring appointees to confidential
staff positions to meet the prescribed educational
qualification.3 The educational requirement for the position of
Executive Assistant is a Bachelors degree relevant to the
job4 and Priscilla Ong was not a college degree holder.
Acting upon this request, the petitioner CSC issued Resolution
No. 956978 on November 2, 1995, approving the appointment
of Ong under a Coterminous Temporary status: chanroblesvirtua1awlibrary
In this case, it is clear that Ong does not meet the educational
qualification for the position of Executive Assistant IV.However,
considering that Ong has to her credit 65 units leading to a
Bachelors degree and that the said position is coterminous with
the appointing authority and belongs to his
confidential/personal staff, the proposed appointment of Ong
may be allowed under Coterminous Temporary status.
WHEREFORE, the instant request of Administrator Felicisimo O.
Joson, Jr. is hereby granted.Accordingly, the appointment of
Priscilla E. Ong to the position of Executive Assistant IV, POEA,
may be approved under Coterminous Temporary status.5  cralawred
However, on February 6, 1996, Director Nelson Acebedo of the
CSC National Capital Region (NCR) issued a post audit report on
the issuance of Ongs appointment made on July 1, 1995, and
invalidated the same.A motion for reconsideration was filed,
stressing, among others, that the Department of Budget
Management (DBM) allowed the POEA to create such a position
not earlier than July 1, 1995 and that no less than the petitioner
itself approved the appointment under a coterminous temporary
status.Upon the instructions of Director Acebedo, the effectivity
of Ongs appointment was changed from July 1, 1995 to
November 2, 1995.6  cralawred
Considering the said adjustment in the effectivity date of Ongs
appointment, the respondent then requested approval for the
payment of her salary for services rendered for the period of
July 1, 1995 to October 31, 1995.
The petitioner denied the request for the payment of Ongs
salary in Resolution No. 974094 dated October 16, 1997.7 Citing
Rep. Act No. 7430 also known as the Attrition Law which, in
part, states that no appointment shall be made to fill up a
vacancy unless an authority has been granted by it,8 the
petitioner posited that the authority to fill the position was
granted only on November 2, 1995 when it issued CSC
Resolution No. 956978.The request for the payment of salary
referred to the period prior to the date of authority to fill the
position; such claim cannot, therefore, be allowed.The petitioner
concluded that, as the appointing authority, it is the respondent
who shall be personally liable for the payment of salaries as
provided in Item 5(a), Part I, CSC MC No. 38, s. 1993, which
states:chanroblesvirtua1awlibrary
5.Liability of Appointing Authority and Other Officers
a.The appointing authority shall be personally liable for the
salary of appointees whose appointments have been
disapproved for violation of pertinent laws such as RA 7041 and
RA 7430.9  cralawred
The respondent filed a motion for reconsideration, averring that
Ong was appointed to a newly-created position which does not
require any such authority from the petitioner.The respondent
emphasized in his motion that the DBM approved the creation of
the position for Ong.He asserted that, if at all, it is the POEA
who should be liable under the principle of quantum
meruit since the latter was the one benefited.Thus: chanroblesvirtua1awlibrary
Admittedly, the herein movant requested an Authority to fill the
said position which was not necessary under the premise since
the position involved was a newly created position.In the first
place, the Department of Budget and Management through the
Director of CPCB granted the request for the creation of said
position due to the dire need and necessity of said
provision.POEA could not have transgressed any provision of RA
7430 and its implementing rules when POEA appointed Ms. Ong
to the said newly created position on July 1, 1995.
POEA should pay Ms. Ong for her services since POEA was the
one benefited not the herein movant in his personal
capacity.The principle of quantum meruit  dictates that not only
is the one who rendered services who should paid (sic) but
equally important, is that the one benefited from such services
must be the one who should pay the services.If the herein
movant would be made personally liable to pay for her services,
just the same, it is tantamount to unjust enrichment on the part
of the government at the movants expense10  cralawred
On June 8, 1998, the petitioner issued Resolution No. 981399
denying the respondents motion for reconsideration.11 It
affirmed its ruling that the effectivity date of Ongs appointment
should be reckoned from November 2, 1995 when it granted the
authority to the respondent to fill the position, and not July 1,
1995 as asserted by the respondent.It also declared that Ongs
appointment was not included in the POEAs Report on Personnel
Action (ROPA) submitted to the petitioner for the month of July
1995: chanroblesvirtua1awlibrary
POEA, as an accredited agency is mandated by CSC rules to
submit within fifteen (15) days of each ensuing month to the
Civil Service Regional office of Field Office concerned two copies
of Monthly Report on Personnel Action, together with certified
true copy of appointments acted upon (Item, 2.2.7, Rule V, CSC
Memorandum Circular No. 27, s. 1994) .In the instant case,
POEA failed to comply with this rule when it did not include the
appointment of Ong in its July ROPA.12 cralawred
The petitioner also held that the POEA only submitted Ongs
appointment in its ROPA for the month of November 1995.Such
belated report rendered the appointment in July
13
ineffective.  The petitioner concluded that there was clearly no
legal basis for the payment of Ongs salary prior to November 2,
1995, and that the principle of quantum meruit  invoked by the
respondent was not applicable.
The respondent moved for a clarification of CSC Resolution No.
981399, pointing out that the petitioner did not rule on the
matter of POEAs alleged violation of the Attrition Law,
particularly on the failure to secure prior authority to fill. The
respondent asserted that the POEAs alleged failure to include
the proposed appointment of Ong in its July 1995 ROPA was
justified because Ongs appointment was still the subject of a
request for exemption from the requirement of Memorandum
Circular (MC) No. 38, s. 1993.The respondent received CSC
Resolution No. 956978 approving Ongs appointment under a
coterminous temporary status only on November 5, 1995;
hence, the appointment was included only in the November
ROPA.The respondent pointed out that the task and duty of
preparing and submitting the monthly ROPA lies with the
officials of the Personnel Department of the POEA.Finally, the
respondent averred, if there was, indeed, a failure to comply
with the CSC Circular No. 27, Series of 1994, it would be quite
unfair and unjust for the petitioner to order the respondent to
pay the salary of Ong out of his (the respondents) personal
funds.
The petitioner denied the motion of the respondent in
Resolution No. 991839 dated August 17, 1999.It held that the
respondent as the appointing authority, was accountable for all
the appointments he issued; he cannot, thus, hide behind the
mistakes of his subordinates.The petitioner also reiterated its
ruling that the appointment of Ong was made in violation of the
CSC Law and its rules.As such, the respondent must assume
responsibility for the payment of Ongs salary.Thus: chanroblesvirtua1awlibrary
WHEREFORE, the CSC Resolution No. 981399 dated June 8,
1998 is hereby clarified.Accordingly, the payment of salaries,
benefits and other emoluments from July 1, 1995 to October
30, 1995 of Priscilla Ong, whose appointment was in violation of
R.A. 7430 (Attrition Law), shall be the personal liability of then
Administrator Felicisimo O. Joson.14  cralawred
The respondent filed a motion for reconsideration of the
resolution.The petitioner treated the pleading as a second
motion for reconsideration, and denied the same in Resolution
No. 001956 dated August 30, 2000, in this wise:
WHEREFORE, the second Motion for Reconsideration of
Felicisimo O. Joson, Jr. is hereby DENIED.Accordingly, the CSC
Resolution No. 974094 dated October 16, 1997 stands.15  cralawred
The petitioner filed another motion seeking for the
reconsideration of the CSC Resolution No. 991839 pointing out
that Ong may be considered a de facto public officer who is
entitled to the payment of salaries for actual services
rendered.The CSC outrightly denied the motion in CSC
Resolution No. 002778 dated December 13, 2000:
WHEREFORE, the instant motion for reconsideration is hereby
DENIED for lack of merit.Consequently, CSC Resolution No.
991839 dated August 17, 1999 stands.This case is considered
closed and terminated.16  cralawred
Unfazed, the respondent appealed the CSC resolutions to the
Court of Appeals.On August 12, 2002, the CA rendered the
assailed judgment in favor of herein respondent, ruling that Ong
was considered a de facto officer and is entitled to the payment
of her salary.The dispositive portion of the decision reads as
follows:
chanroblesvirtua1awlibrary
WHEREFORE, in view of the foregoing, the instant Petition for
Review is hereby GRANTED.Resolution No. 002778 dated 13
December 2000 rendered by public respondent Civil Service
Commission, denying payment of Miss Priscilla Ongs
compensation from 1 July 1995 to 31 October 1995, is hereby
SET ASIDE.17  cralawred
Hence, this Petition for Review on Certiorari raising the lone
issue that:
chanroblesvirtua1awlibrary
THE COURT OF APPEALS GRAVELY ERRED IN HOLDING THAT
PRISCILLA ONG IS ENTITLED TO PAYMENT OF HER SALARIES
FROM THE GOVERNMENT FOR BEING A DE FACTO  OFFICER.
The petitioner maintains that Ong cannot be entitled to the
payment of salary prior to November 2, 1995 because of the
following: (a) Ong did not possess the necessary qualification
chanroblesvirtua1awlibrary
for the position; (b) her appointment was made in violation of
the Civil Service Law and its rules; (c) there was no prior
authority to appoint, in violation of Rep. Act No. 7430; and, (d)
the appointment was not reported in the July ROPA, making
such appointment ineffective.
We rule for the respondent.
The records show that the position of Executive Assistant IV in
the POEA Administrators office was created with the approval of
the DBM on July 1, 1995.This was pursuant to a request made
chanroblesvirtua1awlibrary
by the respondent for a position in his office under a contractual
status.It is quite apparent that the respondent intended the
position for his confidential assistant, Priscilla Ong, whom he
considered efficient and competent on the job, albeit without a
college degree.The respondent was aware of the appointees
lack of qualification which is precisely the reason why he
requested for an exemption from the requirements of the MC
No. 38 s. 1993, particularly on the educational requirement of
appointees to confidential staff positions.
On November 2, 1995, the petitioner granted the respondents
request and stated that the appointment of Ong may be
approved under a coterminous temporary status.18  cralawred
The task of the petitioner is to insure that the appointee has all
the qualifications for the position; otherwise it disapproves the
appointment.19 In this case, the petitioner approved the
appointment of Ong under a coterminous temporary status;
coterminous, because the appointment shall only be during the
tenure of the appointing power; and temporary, because the
appointee did not meet all the requirements for the position.As
such, the appointment could be recalled anytime.The petitioner
took into account the fact that Ong was then enrolled in CAP
College, Makati City and had 65 units credited to her leading to
a four-year course in Bachelor of Science in Business
Administration, and that she just needed 61 units more to
complete the same.
Under Section 4, Rule V of the Omnibus
appointment is in order, viz:
Except as otherwise provided herein, a person who meets all
the requirements of the position including the appropriate civil
service eligibility shall be appointed to a position in the first and
second levels.However, when the immediate filling of a vacancy
becomes necessary, taking into account the public interest, and
a person with an appropriate civil service eligibility is not
actually and immediately available, a person without the
appropriate civil service eligibility but who meets the other
requirements of the position may be appointed.His appointment
shall be temporary for a period of not more than twelve (12)
months and he may be replaced at any time with one who has
an appropriate civil service eligibility.
In approving the appointment of Ong, the petitioner took into
account the exigency and urgency of filling up the position of
Executive Assistant, as embodied in the letter of the respondent
for exemption from MC No. 38: chanroblesvirtua1awlibrary
Our request for exemption from MC # 38 series of 1993 is
anchored on the fact that I have no regular holder of an
Executive Assistant, although it is included in the POEA
budget.As earlier mentioned in our letter-request, as the
administrationship of POEA keeps on changing, the Executive
Assistant post remains attached to another employee who can
not be asked to vacate the post because of the security of
tenure of the incumbent at the time the Executive Assistant
post was declared confidential in nature.We recognize and
support the reason behind the promulgation of CSC MC # 38
series 1993.However, please consider the circumstances behind
this request for exemption.Ms. Ong has been the holder of the
position since my appointment last July 1992 under the Ramos
government.
May I reiterate that the position of Ms. Ong is temporary in
nature and co-terminous with my term.Moreover, she is now
enrolled at the CAP College taking up BS in Business
Administration.20 
cralawred
Rules, Ongs The respondent reiterated the urgency of Ongs appointment in
his letter-request for the payment of Ongs salary: chanroblesvirtua1awlibrary
Please note that the Office of the Administrator is the center of
all communications coming in and out of POEA as well as the
focal point of all major activities whether internal or external
concerns.As such, the smooth operations of this office would not
have been possible without the able and dedication of Ms. Ong
who faithfully discharged her gargantuan duties as Executive
Assistant to the highest official of POEA.It would be an injustice
to Ms. Ong if she is not properly compensated for a job very
well done especially in such a sensitive position.21  cralawred
With the foregoing, it can not be said that for want of a college
degree as required under MC No. 38, s. 1993 for
confidential/personal positions, Ongs appointment was in
contravention of the CSC Law and its rules.While it is conceded
that the respondent intended the appointment of Ong to be
contractual only, the petitioner approved the same in Resolution
No. 956978, under a Coterminous-Temporary status.The
appointment of Ong on July 1, 1995, is, therefore, valid.
We reject the petitioners contention that Ongs appointment was
invalid since the respondent appointed her to the position
without first securing an authority to fill as mandated by the
second to the last paragraph of Section 3 of Rep. Act No.
7430.The said provision reads: chanroblesvirtua1awlibrary
SECTION 3.Attrition.Within five (5) years from the approval of
the Act, no appointment shall be made to fill vacated
positions in any government office as a result of
resignation, retirement, dismissal, death or transfer to
another office of an officer or employee: Provided,
however, That this prohibition shall not apply in the following In CSC Resolution No. 974094, the petitioner denied the
instances: respondents motion for the POEA to pay Ongs salary based on
the second to the last paragraph of Section 3, viz: chanroblesvirtua1awlibrary

(a) Where the position is head of a primary organic unit such as

chief of division; The Commission further finds no merit in the request because of
the mandatory provision of Republic Act 7430 (Attrition Law)
(b) Where the position is the lone position in the organizational which states as follows:chanroblesvirtua1awlibrary

unit and it corresponds to a particular expertise that is intrinsic

to the desired basic capability of the unit concerned; No appointment shall be made to fill up a vacancy unless an
authority has been granted by the Commission.23  cralawred

(c) Where the positions are basic positions for the initial
operations of newly created or activated agencies or, in the case But even a cursory reading of Section 3 of Rep. Act No. 7430
of other agencies, where the positions are vital and necessary will readily show that it applies only to appointments to fill
for the continued and efficient operation of said agencies; vacant position in a government office as a result of resignation,
retirement, dismissal, death, or transfer to another office of an
(d) Where the positions are difficult to fill considering the officer or employee within five years from the approval of the
qualifications required therefore, as in the case of doctors, law.Under the law, attrition is defined as the reduction of
lawyers and other professionals; personnel as a result of resignation, retirement, dismissal in
accordance with existing laws, death or transfer to another
(e) Where the positions are found in agencies declared to be office.24 
cralawred

understaffed; chanroblesvirtuallawlibrary

The appointment of Ong to the position of the Executive

(f) Positions in Congress or in the Judiciary;
(g) Appointments or designations extended by the President;
chanroblesvirtuallawlibrary
Assistant IV in the Office of the respondent is not covered by
Rep. Act No. 7430 because Ong was appointed to a newly-
created position as part of the confidential/personal staff of the
respondent.The position was approved by the DBM.The
chanroblesvirtuallawlibrary

(h) Where the positions are found in local government units; petitioner attested the appointment as coterminous
temporary.The position to which Ong was appointed was not
chanroblesvirtuallawlibrary

rendered vacant as a result of the resignation, retirement,

(i) Teaching personnel; and
dismissal, death or transfer of an employee to another office, as
cralawlibrary

provided by the law. Thus, the petitioner cannot argue that the
(j) Where the replacement come from existing employees. respondent violated the Attrition Law in appointing Ong.

Provided, further,  That the exemptions from this prohibition

The law must not be read in truncated parts; its provisions must
shall require authorization by the Civil Service be read in relation to the whole law. It is the cardinal rule in
Commission; Provided, finally, That no appointment shall be
statutory construction that a statutes clauses and phrases must
issued by the appointing authority nor approved by the Civil not be taken as detached and isolated expressions, but the
Service Commission without said authorization.22 
whole and every part thereof must be considered in fixing the
cralawred

meaning of any of its parts in order to produce a harmonious

Appointments made in violation of this Act shall be null and whole.25 Every part of the statute must be interpreted with
void. reference to the context, i.e., that every part of the statute
must be considered together with other parts of the statute and
kept subservient to the general intent of the whole
enactment.26  cralawred
We find the respondents justification for the failure of the POEA
to include Ongs appointment in its ROPA for July 1995 as
required by CSC Memorandum Circular No. 27, Series of 1994
to be in order.The records show that the POEA did not include
the contractual appointment of Ong in its July ROPA because its
request for exemption from the educational requisite for
confidential staff members provided in MC No. 38 had yet been
resolved by the CSC.The resolution of the petitioner granting
such request was received only in November, 1995. The POEA,
thereafter, reported the appointment in its November, 1995
ROPA.
Having been validly appointed to the position of Executive
Assistant IV in the Office of the respondent, Ong is a de
jure officer and not a de facto officer as held by the Court of
Appeals.The broad definition of what constitutes an officer de
facto  was formulated by Lord Holtin Parker v. Kent,27 and
reiterated by Lord Ellenborough and full Kings Bench in 1865
in Rex v. Bedford Level,28 One who has the reputation of being
the officer he assumes and yet is not a good officer in point of
law.A de facto officer is one who is in possession of the office
and discharging its duties under color of authority. 29 By color of
authority is meant that derived from an election or
appointment, however irregular or informal, so that the
incumbent is not a mere volunteer.The difference between the
basis of the authority of a de jure officer and that of a de
facto officer is that one rests on right, the other on reputation.It
may be likened to the difference between character and
reputation.One is the truth of a man, the other is what is
thought of him.30 It is the color of authority, not the color of title
that distinguishes an officer de factofrom a usurper.31 Being
a de jure officer, Ong is entitled to receive all the salaries and
emoluments appertaining to the position.32 
cralawred
Irrefragably, Ong assumed the position and discharged her
functions as Executive Assistant IV on July 1, 1995.Thenceforth,
she was entitled to the payment of her salary, as provided for in
Section 10 of Rule V of the Omnibus Rules of the Civil Service
Commission on the matter of Appointments, viz: chanroblesvirtua1awlibrary
An appointment issued in accordance with pertinent laws and
rules shall take effect immediately upon its issuance by the
appointing authority, and if the appointee has assumed the
duties of the position, he shall be entitled to receive his salary
at once, without awaiting the approval of his appointment by
the Commission.The appointment shall remain effective until
disapproved by the Commission.In no case shall an
appointment take effect earlier than the date of its issuance.33  cralawred
MC No. 38, s. 1993, likewise reads:
7.Effectivity of Appointment
a.The effectivity of an appointment shall be the date of actual
assumption by the appointee but not earlier than the date of
issuance of the appointment, which is the date of signing by the
appointing authority.
b.No appointment shall be made earlier than the date of
issuance, except in the case of change of status in view of
qualifying in written examination, the effectivity of which is the
date of release of the result of the examination.However, the
issuance of such appointments shall be within the period of the
temporary appointment or provided the temporary appointment
has not yet expired
Moreover, the Court of Appeals took note of CSC Resolution No.
953263 dated May 23, 1995 which states, thus:
chanroblesvirtua1awlibrary
If the appointment was disapproved on grounds which do not
constitute a violation of the civil service law, such as the failure
of the appointee to meet the Qualification Standards (QS)
prescribed for the position, the same is considered effective
until disapproved by the Commission or any of its
regional or field offices.The appointee is meanwhile
entitled to payment of salaries from the
government. Furthermore, if a motion for reconsideration or
an appeal from the disapproval is seasonably filed with the
proper office the appointment is still considered to be FERNAN, C.J.:p
effective.The disapproval becomes final only after the same is
affirmed by the Commission.34  These two (2) petitions were consolidated per resolution dated August 9, 1988 1 and are being resolved
jointly as both seek a declaration of the unconstitutionality of Executive Order No. 284 issued by
cralawred

President Corazon C. Aquino on July 25, 1987. The pertinent provisions of the assailed Executive
IN LIGHT OF ALL THE FOREGOING, the petition is Order are:

DENIED.The assailed Decision of the Court of Appeals, insofar

as it is consistent with this Decision, is AFFIRMED. Sec. 1. Even if allowed by law or by the ordinary functions of his
position, a member of the Cabinet, undersecretary or assistant
secretary or other appointive officials of the Executive
G.R. No. 83896             February 22, 1991
Department may, in addition to his primary position, hold not
more than two positions in the government and government
CIVIL LIBERTIES UNION, petitioner, corporations and receive the corresponding compensation
vs. therefor; Provided, that this limitation shall not apply to ad hoc
THE EXECUTIVE SECRETARY, respondent. bodies or committees, or to boards, councils or bodies of which
the President is the Chairman.
G.R. No. 83815             February 22, 1991
Sec. 2. If a member of the cabinet, undersecretary or assistant
ANTI-GRAFT LEAGUE OF THE PHILIPPINES, INC. and CRISPIN T. secretary or other appointive official of the Executive Department
REYES, petitioners, holds more positions than what is allowed in Section 1 hereof,
vs. they (sic) must relinquish the excess position in favor of the
PHILIP ELLA C. JUICO, as Secretary of Agrarian Reform; CARLOS subordinate official who is next in rank, but in no case shall any
DOMINGUEZ, as Secretary of Agriculture; LOURDES QUISUMBING, official hold more than two positions other than his primary
as Secretary of Education, Culture and Sports; FULGENCIO position.
FACTORAN, JR., as Secretary of Environment and Natural
Resources; VICENTE V. JAYME, as Secretary of Finance; SEDFREY Sec. 3. In order to fully protect the interest of the government in
ORDOÑEZ, as Secretary of Justice; FRANKLIN N. DRILON, as government-owned or controlled corporations, at least one-third
Secretary of Labor and Employment; LUIS SANTOS, as Secretary of (1/3) of the members of the boards of such corporation should
Local Government; FIDEL V. RAMOS, as Secretary of National either be a secretary, or undersecretary, or assistant secretary.
Defense; TEODORO F. BENIGNO, as Press Secretary; JUANITO
FERRER, as Secretary of Public Works and Highways; ANTONIO
Petitioners maintain that this Executive Order which, in effect, allows
ARRIZABAL, as Secretary of Science and Technology; JOSE
members of the Cabinet, their undersecretaries and assistant secretaries
CONCEPCION, as Secretary of Trade and Industry; JOSE ANTONIO
to hold other government offices or positions in addition to their primary
GONZALEZ, as Secretary of Tourism; ALFREDO R.A. BENGZON, as
positions, albeit subject to the limitation therein imposed, runs counter to
Secretary of Health; REINERIO D. REYES, as Secretary of
Section 13, Article VII of the 1987 Constitution,  which provides as 2

Transportation and Communication; GUILLERMO CARAGUE, as

follows:
Commissioner of the Budget; and SOLITA MONSOD, as Head of the
National Economic Development Authority, respondents.
Sec. 13. The President, Vice-President, the Members of the
Cabinet, and their deputies or assistants shall not, unless
Ignacio P. Lacsina, Luis R. Mauricio, Antonio R. Quintos and Juan T.
otherwise provided in this Constitution, hold any other office or
David for petitioners in 83896.
employment during their tenure. They shall not, during said
Antonio P. Coronel for petitioners in 83815.
tenure, directly or indirectly practice any other profession,
participate in any business, or be financially interested in any
contract with, or in any franchise, or special privilege granted by
 the Government or any subdivision, agency, or instrumentality
thereof, including government-owned or controlled corporations
or their subsidiaries. They shall strictly avoid conflict of interest in
the conduct of their office.
It is alleged that the above-quoted Section 13, Article VII prohibits public
respondents, as members of the Cabinet, along with the other public
officials enumerated in the list attached to the petitions as Annex "C" in
G.R. No.
83815  and as Annex "B" in G.R. No. 83896  from holding any other office
3 4
or employment during their tenure. In addition to seeking a declaration of
the unconstitutionality of Executive Order No. 284, petitioner Anti-Graft
League of the Philippines further seeks in G.R. No. 83815 the issuance of
the extraordinary writs of prohibition and mandamus, as well as a
temporary restraining order directing public respondents therein to cease
and desist from holding, in addition to their primary positions, dual or
multiple positions other than those authorized by the 1987 Constitution
and from receiving any salaries, allowances, per diems and other forms
of privileges and the like appurtenant to their questioned positions, and
compelling public respondents to return, reimburse or refund any and all
amounts or benefits that they may have received from such positions.
Specifically, petitioner Anti-Graft League of the Philippines charges that
notwithstanding the aforequoted "absolute and self-executing" provision
of the 1987 Constitution, then Secretary of Justice Sedfrey Ordoñez,
construing Section 13, Article VII in relation to Section 7, par. (2), Article
IX-B, rendered on July 23, 1987 Opinion No. 73, series of
1987,  declaring that Cabinet members, their deputies (undersecretaries)
5
and assistant secretaries may hold other public office, including
membership in the boards of government corporations: (a) when directly
provided for in the Constitution as in the case of the Secretary of Justice
who is made an ex-officio member of the Judicial and Bar Council under
Section 8, paragraph 1, Article VIII; or (b) if allowed by law; or (c) if
allowed by the primary functions of their respective positions; and that on
the basis of this Opinion, the President of the Philippines, on July 25,
1987 or two (2) days before Congress convened on July 27, 1987:
promulgated Executive Order No. 284. 6
Petitioner Anti-Graft League of the Philippines objects to both DOJ
Opinion No. 73 and Executive Order No. 284 as they allegedly "lumped
together" Section 13, Article VII and the general provision in another
article, Section 7, par. (2), Article I-XB. This "strained linkage" between
the two provisions, each addressed to a distinct and separate group of
public officers –– one, the President and her official family, and the other,
public servants in general –– allegedly "abolished the clearly separate,
higher, exclusive, and mandatory constitutional rank assigned to the
prohibition against multiple jobs for the President, the Vice-President, the
members of the Cabinet, and their deputies and subalterns, who are the
leaders of government expected to lead by example."  Article IX-B,
7
Section 7, par. (2)  provides:
8
Sec. 7. . . . . .
Unless otherwise allowed by law or by the primary functions of
his position, no appointive official shall hold any other office or
employment in the government or any subdivision, agency or
instrumentality thereof, including government-owned or controlled
corporations or their subsidiaries.
The Solicitor General counters that Department of Justice DOJ Opinion
No. 73, series of 1987, as further elucidated and clarified by DOJ Opinion
No. 129, series of 1987  and DOJ Opinion No. 155, series of 1988,  being
9 10
the first official construction and interpretation by the Secretary of Justice
of Section 13, Article VII and par. (2) of Section 7, Article I-XB of the
Constitution, involving the same subject of appointments or designations
of an appointive executive official to positions other than his primary
position, is "reasonably valid and constitutionally firm," and that Executive
Order No. 284, promulgated pursuant to DOJ Opinion No. 73, series of
1987 is consequently constitutional. It is worth noting that DOJ Opinion
No. 129, series of 1987 and DOJ Opinion No. 155, series of 1988
construed the limitation imposed by E.O. No. 284 as not applying to ex-
officio positions or to positions which, although not so designated as ex-
officio are allowed by the primary functions of the public official, but only
to the holding of multiple positions which are not related to or necessarily
included in the position of the public official concerned (disparate
positions).
In sum, the constitutionality of Executive Order No. 284 is being
challenged by petitioners on the principal submission that it adds
exceptions to Section 13, Article VII other than those provided in the
Constitution. According to petitioners, by virtue of the phrase "unless
otherwise provided in this Constitution," the only exceptions against
holding any other office or employment in Government are those
provided in the Constitution, namely: (1) The Vice-President may be
appointed as a Member of the Cabinet under Section 3, par. (2), Article
VII thereof; and (2) the Secretary of Justice is an ex-officio member of the
Judicial and Bar Council by virtue of Section 8 (1), Article VIII.
Petitioners further argue that the exception to the prohibition in Section 7,
par. (2), Article I-XB on the Civil Service Commission applies to officers
and employees of the Civil Service in general and that said exceptions do
not apply and cannot be extended to Section 13, Article VII which applies
specifically to the President, Vice-President, Members of the Cabinet and
their deputies or assistants.
There is no dispute that the prohibition against the President, Vice-
President, the members of the Cabinet and their deputies or assistants
from holding dual or multiple positions in the Government admits of
certain exceptions. The disagreement between petitioners and public
respondents lies on the constitutional basis of the exception. Petitioners
insist that because of the phrase "unless otherwise provided in this
Constitution" used in Section 13 of Article VII, the exception must be
expressly provided in the Constitution, as in the case of the Vice-
President being allowed to become a Member of the Cabinet under the
second paragraph of Section 3, Article VII or the Secretary of Justice
being designated an ex-officio member of the Judicial and Bar Council
under Article VIII, Sec. 8 (1). Public respondents, on the other hand,
maintain that the phrase "unless otherwise provided in the Constitution"
in Section 13, Article VII makes reference to Section 7, par. (2), Article I-
XB insofar as the appointive officials mentioned therein are concerned.
The threshold question therefore is: does the prohibition in Section 13,
Article VII of the 1987 Constitution insofar as Cabinet members, their
deputies or assistants are concerned admit of the broad exceptions made
for appointive officials in general under Section 7, par. (2), Article I-XB
which, for easy reference is quoted anew, thus: "Unless otherwise
allowed by law or by the primary functions of his position, no appointive
official shall hold any other office or employment in the Government or
any subdivision, agency or instrumentality thereof, including government-
owned or controlled corporation or their subsidiaries."
We rule in the negative.
A foolproof yardstick in constitutional construction is the intention
underlying the provision under consideration. Thus, it has been held that
the Court in construing a Constitution should bear in mind the object
sought to be accomplished by its adoption, and the evils, if any, sought to
be prevented or remedied. A doubtful provision will be examined in the
light of the history of the times, and the condition and circumstances
under which the Constitution was framed. The object is to ascertain the
reason which induced the framers of the Constitution to enact the
particular provision and the purpose sought to be accomplished thereby,
in order to construe the whole as to make the words consonant to that
reason and calculated to effect that purpose.11
The practice of designating members of the Cabinet, their deputies and
assistants as members of the governing bodies or boards of various
government agencies and instrumentalities, including government-owned
and controlled corporations, became prevalent during the time legislative
powers in this country were exercised by former President Ferdinand E.
Marcos pursuant to his martial law authority. There was a proliferation of
newly-created agencies, instrumentalities and government-owned and
controlled corporations created by presidential decrees and other modes
of presidential issuances where Cabinet members, their deputies or
assistants were designated to head or sit as members of the board with
the corresponding salaries, emoluments, per diems, allowances and
other perquisites of office. Most of these instrumentalities have remained
up to the present time.
This practice of holding multiple offices or positions in the government
soon led to abuses by unscrupulous public officials who took advantage
of this scheme for purposes of self-enrichment. In fact, the holding of
multiple offices in government was strongly denounced on the floor of the
Batasang Pambansa.  This condemnation came in reaction to the
12
published report of the Commission on Audit, entitled "1983 Summary
Annual Audit Report on: Government-Owned and Controlled
Corporations, Self-Governing Boards and Commissions" which carried as
its Figure No. 4 a "Roaster of Membership in Governing Boards of
Government-Owned and Controlled Corporations as of December 31,
1983."
Particularly odious and revolting to the people's sense of propriety and
morality in government service were the data contained therein that
Roberto V. Ongpin was a member of the governing boards of twenty-nine
(29) governmental agencies, instrumentalities and corporations; Imelda
R. Marcos of twenty-three (23); Cesar E.A. Virata of twenty-two (22);
Arturo R. Tanco, Jr. of fifteen (15); Jesus S. Hipolito and Geronimo Z.
Velasco, of fourteen each (14); Cesar C. Zalamea of thirteen (13); Ruben
B. Ancheta and Jose A. Roño of twelve (12) each; Manuel P. Alba,
Gilberto O. Teodoro, and Edgardo Tordesillas of eleven (11) each; and
Lilia Bautista and Teodoro Q. Peña of ten (10) each. 13
The blatant betrayal of public trust evolved into one of the serious causes
of discontent with the Marcos regime. It was therefore quite inevitable
and in consonance with the overwhelming sentiment of the people that
the 1986 Constitutional Commission, convened as it was after the people
successfully unseated former President Marcos, should draft into its
proposed Constitution the provisions under consideration which are
envisioned to remedy, if not correct, the evils that flow from the holding of
multiple governmental offices and employment. In fact, as keenly
observed by Mr. Justice Isagani A. Cruz during the deliberations in these
cases, one of the strongest selling points of the 1987 Constitution during
the campaign for its ratification was the assurance given by its
proponents that the scandalous practice of Cabinet members holding
multiple positions in the government and collecting unconscionably
excessive compensation therefrom would be discontinued.
But what is indeed significant is the fact that although Section 7, Article I-
XB already contains a blanket prohibition against the holding of multiple
offices or employment in the government subsuming both elective and
appointive public officials, the Constitutional Commission should see it fit
to formulate another provision, Sec. 13, Article VII, specifically prohibiting
the President, Vice-President, members of the Cabinet, their deputies
and assistants from holding any other office or employment during their
tenure, unless otherwise provided in the Constitution itself.
Evidently, from this move as well as in the different phraseologies of the
constitutional provisions in question, the intent of the framers of the
Constitution was to impose a stricter prohibition on the President and his
official family in so far as holding other offices or employment in the
government or elsewhere is concerned.
Moreover, such intent is underscored by a comparison of Section 13,
Article VII with other provisions of the Constitution on the disqualifications
of certain public officials or employees from holding other offices or
employment. Under Section 13, Article VI, "(N)o Senator or Member of
the House of Representatives may hold any other office or
employment in the Government . . .". Under Section 5(4), Article XVI,
"(N)o member of the armed forces in the active service shall, at any time,
be appointed in any capacity to a civilian position in the
Government, including government-owned or controlled corporations or
any of their subsidiaries." Even Section 7 (2), Article IX-B, relied upon by
respondents provides "(U)nless otherwise allowed by law or by the
primary functions of his position, no appointive official shall hold any other
office or employment in the Government."
It is quite notable that in all these provisions on disqualifications to hold
other office or employment, the prohibition pertains to an office or
employment in the government and government-owned or controlled
corporations or their subsidiaries. In striking contrast is the wording of
Section 13, Article VII which states that "(T)he President, Vice-President,
the Members of the Cabinet, and their deputies or assistants shall not,
unless otherwise provided in this Constitution, hold any other office or
employment during their tenure." In the latter provision, the
disqualification is absolute, not being qualified by the phrase "in the
Government." The prohibition imposed on the President and his official
family is therefore all-embracing and covers both public and private office
or employment.
Going further into Section 13, Article VII, the second sentence provides:
"They shall not, during said tenure, directly or indirectly, practice any
other profession, participate in any business, or be financially interested
in any contract with, or in any franchise, or special privilege granted by
the Government or any subdivision, agency or instrumentality thereof,
including government-owned or controlled corporations or their
subsidiaries." These sweeping, all-embracing prohibitions imposed on the
President and his official family, which prohibitions are not similarly
imposed on other public officials or employees such as the Members of
Congress, members of the civil service in general and members of the
armed forces, are proof of the intent of the 1987 Constitution to treat the
President and his official family as a class by itself and to impose upon
said class stricter prohibitions.
Such intent of the 1986 Constitutional Commission to be stricter with the
President and his official family was also succinctly articulated by
Commissioner Vicente Foz after Commissioner Regalado Maambong
noted during the floor deliberations and debate that there was no
symmetry between the Civil Service prohibitions, originally found in the
General Provisions and the anticipated report on the Executive
Department. Commissioner Foz Commented, "We actually have to be
stricter with the President and the members of the Cabinet because they
exercise more powers and, therefore, more cheeks and restraints on
them are called for because there is more possibility of abuse in their
case."14
Thus, while all other appointive officials in the civil service are allowed to
hold other office or employment in the government during their tenure
when such is allowed by law or by the primary functions of their positions,
members of the Cabinet, their deputies and assistants may do so only
when expressly authorized by the Constitution itself. In other words,
Section 7, Article I-XB is meant to lay down the general rule applicable to
all elective and appointive public officials and employees, while Section
13, Article VII is meant to be the exception applicable only to the
President, the Vice- President, Members of the Cabinet, their deputies
and assistants.
This being the case, the qualifying phrase "unless otherwise provided in
this Constitution" in Section 13, Article VII cannot possibly refer to the
broad exceptions provided under Section 7, Article I-XB of the 1987
Constitution. To construe said qualifying phrase as respondents would
have us do, would render nugatory and meaningless the manifest intent
and purpose of the framers of the Constitution to impose a stricter
prohibition on the President, Vice-President, Members of the Cabinet,
their deputies and assistants with respect to holding other offices or
employment in the government during their tenure. Respondents'
interpretation that Section 13 of Article VII admits of the exceptions found
in Section 7, par. (2) of Article IX-B would obliterate the distinction so
carefully set by the framers of the Constitution as to when the high-
ranking officials of the Executive Branch from the President to Assistant
Secretary, on the one hand, and the generality of civil servants from the
rank immediately below Assistant Secretary downwards, on the other,
may hold any other office or position in the government during their
tenure.
Moreover, respondents' reading of the provisions in question would
render certain parts of the Constitution inoperative. This observation
applies particularly to the Vice-President who, under Section 13 of Article
VII is allowed to hold other office or employment when so authorized by
the Constitution, but who as an elective public official under Sec. 7, par.
(1) of Article I-XB is absolutely ineligible "for appointment or designation
in any capacity to any public office or position during his tenure." Surely,
to say that the phrase "unless otherwise provided in this Constitution"
found in Section 13, Article VII has reference to Section 7, par. (1) of
Article I-XB would render meaningless the specific provisions of the
Constitution authorizing the Vice-President to become a member of the
Cabinet,  and to act as President without relinquishing the Vice-
15
Presidency where the President shall not nave been chosen or fails to
qualify.  Such absurd consequence can be avoided only by interpreting
16
the two provisions under consideration as one, i.e., Section 7, par. (1) of
Article I-XB providing the general rule and the other, i.e., Section 13,
Article VII as constituting the exception thereto. In the same manner must
Section 7, par. (2) of Article I-XB be construed vis-a-vis Section 13,
Article VII.
It is a well-established rule in Constitutional construction that no one
provision of the Constitution is to be separated from all the others, to be
considered alone, but that all the provisions bearing upon a particular
subject are to be brought into view and to be so interpreted as to
effectuate the great purposes of the instrument.  Sections bearing on a
17
particular subject should be considered and interpreted together as to
effectuate the whole purpose of the Constitution  and one section is not
18
to be allowed to defeat another, if by any reasonable construction, the
two can be made to stand together. 19
In other words, the court must harmonize them, if practicable, and must
lean in favor of a construction which will render every word operative,
rather than one which may make the words idle and nugatory. 20
Since the evident purpose of the framers of the 1987 Constitution is to
impose a stricter prohibition on the President, Vice-President, members
of the Cabinet, their deputies and assistants with respect to holding
multiple offices or employment in the government during their tenure, the
exception to this prohibition must be read with equal severity. On its face,
the language of Section 13, Article VII is prohibitory so that it must be
understood as intended to be a positive and unequivocal negation of the
privilege of holding multiple government offices or employment. Verily,
wherever the language used in the constitution is prohibitory, it is to be
understood as intended to be a positive and unequivocal negation.  The 21
phrase "unless otherwise provided in this Constitution" must be given a
literal interpretation to refer only to those particular instances cited in the
Constitution itself, to wit: the Vice-President being appointed as a
member of the Cabinet under Section 3, par. (2), Article VII; or acting as
President in those instances provided under Section 7, pars. (2) and (3),
Article VII; and, the Secretary of Justice being ex-officio member of the
Judicial and Bar Council by virtue of Section 8 (1), Article VIII.
The prohibition against holding dual or multiple offices or employment
under Section 13, Article VII of the Constitution must not, however, be
construed as applying to posts occupied by the Executive officials
specified therein without additional compensation in an ex-officio capacity
as provided by law and as required  by the primary functions of said
22
officials' office. The reason is that these posts do no comprise "any other
office" within the contemplation of the constitutional prohibition but are
properly an imposition of additional duties and functions on said
officials.  To characterize these posts otherwise would lead to absurd
23
consequences, among which are: The President of the Philippines cannot
chair the National Security Council reorganized under Executive Order
No. 115 (December 24, 1986). Neither can the Vice-President, the
Executive Secretary, and the Secretaries of National Defense, Justice,
Labor and Employment and Local Government sit in this Council, which
would then have no reason to exist for lack of a chairperson and
members. The respective undersecretaries and assistant secretaries,
would also be prohibited.
The Secretary of Labor and Employment cannot chair the Board of
Trustees of the National Manpower and Youth Council (NMYC) or the
Philippine Overseas Employment Administration (POEA), both of which
are attached to his department for policy coordination and guidance.
Neither can his Undersecretaries and Assistant Secretaries chair these
agencies.
The Secretaries of Finance and Budget cannot sit in the Monetary
Board.  Neither can their respective undersecretaries and assistant
24
secretaries. The Central Bank Governor would then be assisted by lower
ranking employees in providing policy direction in the areas of money,
banking and credit. 25
Indeed, the framers of our Constitution could not have intended such
absurd consequences. A Constitution, viewed as a continuously
operative charter of government, is not to be interpreted as demanding
the impossible or the impracticable; and unreasonable or absurd
consequences, if possible, should be avoided. 26
To reiterate, the prohibition under Section 13, Article VII is not to be
interpreted as covering positions held without additional compensation
in ex-officio capacities as provided by law and as required by the primary
functions of the concerned official's office. The term ex-officio means
"from office; by virtue of office." It refers to an "authority derived from
official character merely, not expressly conferred upon the individual
character, but rather annexed to the official position." Ex-officio likewise
denotes an "act done in an official character, or as a consequence of
office, and without any other appointment or authority than that conferred
by the office."  An ex-officio member of a board is one who is a member
27
by virtue of his title to a certain office, and without further warrant or
appointment.  To illustrate, by express provision of law, the Secretary of
28
Transportation and Communications is the ex-officio Chairman of the
Board of the Philippine Ports Authority,  and the Light Rail Transit
29
Authority. 30
The Court had occasion to explain the meaning of an ex-officio position
in Rafael vs. Embroidery and Apparel Control and Inspection
Board,  thus: "An examination of section 2 of the questioned statute (R.A.
31
3137) reveals that for the chairman and members of the Board to qualify
they need only be designated by the respective department heads. With
the exception of the representative from the private sector, they sit ex-
officio. In order to be designated they must already be holding positions
in the offices mentioned in the law. Thus, for instance, one who does not
hold a previous appointment in the Bureau of Customs, cannot, under the
act, be designated a representative from that office. The same is true with
respect to the representatives from the other offices. No new
appointments are necessary. This is as it should be, because the
representatives so designated merely perform duties in the Board in
addition to those already performed under their original appointments." 32
The term "primary" used to describe "functions" refers to the order of
importance and thus means chief or principal function. The term is not
restricted to the singular but may refer to the plural.  The additional duties
33
must not only be closely related to, but must be required by the official's
primary functions. Examples of designations to positions by virtue of
one's primary functions are the Secretaries of Finance and Budget sitting
as members of the Monetary Board, and the Secretary of Transportation
and Communications acting as Chairman of the Maritime Industry
Authority  and the Civil Aeronautics Board.
34
If the functions required to be performed are merely incidental, remotely
related, inconsistent, incompatible, or otherwise alien to the primary
function of a cabinet official, such additional functions would fall under the
purview of "any other office" prohibited by the Constitution. An example
would be the Press Undersecretary sitting as a member of the Board of
the Philippine Amusement and Gaming Corporation. The same rule
applies to such positions which confer on the cabinet official management
functions and/or monetary compensation, such as but not limited to
chairmanships or directorships in government-owned or controlled
corporations and their subsidiaries.
Mandating additional duties and functions to the President, Vice-
President, Cabinet Members, their deputies or assistants which are not
inconsistent with those already prescribed by their offices or
appointments by virtue of their special knowledge, expertise and skill in
their respective executive offices is a practice long-recognized in many
jurisdictions. It is a practice justified by the demands of efficiency, policy
direction, continuity and coordination among the different offices in the
Executive Branch in the discharge of its multifarious tasks of executing
and implementing laws affecting national interest and general welfare and
delivering basic services to the people. It is consistent with the power
vested on the President and his alter egos, the Cabinet members, to
have control of all the executive departments, bureaus and offices and to
ensure that the laws are faithfully executed.  Without these additional
35
duties and functions being assigned to the President and his official
family to sit in the governing bodies or boards of governmental agencies
or instrumentalities in an ex-officio capacity as provided by law and as
required by their primary functions, they would be supervision, thereby
deprived of the means for control and resulting in an unwieldy and
confused bureaucracy.
It bears repeating though that in order that such additional duties or
functions may not transgress the prohibition embodied in Section 13,
Article VII of the 1987 Constitution, such additional duties or functions
must be required by the primary functions of the official concerned, who
is to perform the same in an ex-officio capacity as provided by law,
without receiving any additional compensation therefor.
The ex-officio position being actually and in legal contemplation part of
the principal office, it follows that the official concerned has no right to
receive additional compensation for his services in the said position. The
reason is that these services are already paid for and covered by the
compensation attached to his principal office. It should be obvious that if,
say, the Secretary of Finance attends a meeting of the Monetary Board
as an ex-officio member thereof, he is actually and in legal contemplation
performing the primary function of his principal office in defining policy in
monetary and banking matters, which come under the jurisdiction of his
department. For such attendance, therefore, he is not entitled to collect
any extra compensation, whether it be in the form of a per them or an
honorarium or an allowance, or some other such euphemism. By
whatever name it is designated, such additional compensation is
prohibited by the Constitution.
It is interesting to note that during the floor deliberations on the proposal
of Commissioner Christian Monsod to add to Section 7, par. (2), Article
IX-B, originally found as Section 3 of the General Provisions, the
exception "unless required by the functions of his position,"  express36
reference to certain high-ranking appointive public officials like members
of the Cabinet were made.  Responding to a query of Commissioner Blas
37
Ople, Commissioner Monsod pointed out that there are instances when
although not required by current law, membership of certain high-ranking
executive officials in other offices and corporations is necessary by
reason of said officials' primary functions. The example given by
Commissioner Monsod was the Minister of Trade and Industry. 38
While this exchange between Commissioners Monsod and Ople may be
used as authority for saying that additional functions and duties flowing
from the primary functions of the official may be imposed upon him
without offending the constitutional prohibition under consideration, it
cannot, however, be taken as authority for saying that this exception is by
virtue of Section 7, par. (2) of Article I-XB. This colloquy between the two
Commissioners took place in the plenary session of September 27, 1986.
Under consideration then was Section 3 of Committee Resolution No.
531 which was the proposed article on General Provisions.  At that time,
39
the article on the Civil Service Commission had been approved on third
reading on July 22, 1986,  while the article on the Executive Department,
40
containing the more specific prohibition in Section 13, had also been
earlier approved on third reading on August 26, 1986.  It was only after
41
the draft Constitution had undergone reformatting and "styling" by the
Committee on Style that said Section 3 of the General Provisions became
Section 7, par. (2) of Article IX-B and reworded "Unless otherwise
allowed by law or by the primary functions of his position. . . ."
What was clearly being discussed then were general principles which
would serve as constitutional guidelines in the absence of specific
constitutional provisions on the matter. What was primarily at issue and
approved on that occasion was the adoption of the qualified and delimited
phrase "primary functions" as the basis of an exception to the general
rule covering all appointive public officials. Had the Constitutional
Commission intended to dilute the specific prohibition in said Section 13
of Article VII, it could have re-worded said Section 13 to conform to the
wider exceptions provided in then Section 3 of the proposed general
Provisions, later placed as Section 7, par. (2) of Article IX-B on the Civil
Service Commission.
That this exception would in the final analysis apply also to the President
and his official family is by reason of the legal principles governing
additional functions and duties of public officials rather than by virtue of
Section 7, par. 2, Article IX-B At any rate, we have made it clear that only
the additional functions and duties "required," as opposed to "allowed,"
by the primary functions may be considered as not constituting "any other
office."
While it is permissible in this jurisdiction to consult the debates and
proceedings of the constitutional convention in order to arrive at the
reason and purpose of the resulting Constitution, resort thereto may be
had only when other guides fail  as said proceedings are powerless to
42
vary the terms of the Constitution when the meaning is clear.  Debates in
1âwphi1
the constitutional convention "are of value as showing the views of the
individual members, and as indicating the reasons for their votes, but
they give us no light as to the views of the large majority who did not talk,
much less of the mass of our fellow citizens whose votes at the polls
gave that instrument the force of fundamental law. We think it safer to
construe the constitution from what appears upon its face."  The proper
43
interpretation therefore depends more on how it was understood by the
people adopting it than in the framers's understanding thereof. 44
It being clear, as it was in fact one of its best selling points, that the 1987
Constitution seeks to prohibit the President, Vice-President, members of
the Cabinet, their deputies or assistants from holding during their tenure
multiple offices or employment in the government, except in those cases
specified in the Constitution itself and as above clarified with respect to
posts held without additional compensation in an ex-officio capacity as
provided by law and as required by the primary functions of their office,
the citation of Cabinet members (then called Ministers) as examples
during the debate and deliberation on the general rule laid down for all
appointive officials should be considered as mere personal opinions
which cannot override the constitution's manifest intent and the people'
understanding thereof.
In the light of the construction given to Section 13, Article VII in relation to
Section 7, par. (2), Article IX-B of the 1987 Constitution, Executive Order
No. 284 dated July 23, 1987 is unconstitutional. Ostensibly restricting the
number of positions that Cabinet members, undersecretaries or assistant
secretaries may hold in addition to their primary position to not more than
two (2) positions in the government and government corporations,
Executive Order No. 284 actually allows them to hold multiple offices or
employment in direct contravention of the express mandate of Section
13, Article VII of the 1987 Constitution prohibiting them from doing so,
unless otherwise provided in the 1987 Constitution itself.
The Court is alerted by respondents to the impractical consequences that
will result from a strict application of the prohibition mandated under
Section 13, Article VII on the operations of the Government, considering
that Cabinet members would be stripped of their offices held in an ex-
officio capacity, by reason of their primary positions or by virtue of
legislation. As earlier clarified in this decision, ex-officio posts held by the
executive official concerned without additional compensation as provided
by law and as required by the primary functions of his office do not fall
under the definition of "any other office" within the contemplation of the
constitutional prohibition. With respect to other offices or employment
held by virtue of legislation, including chairmanships or directorships in
government-owned or controlled corporations and their subsidiaries,
suffice it to say that the feared impractical consequences are more
apparent than real. Being head of an executive department is no mean
job. It is more than a full-time job, requiring full attention, specialized
knowledge, skills and expertise. If maximum benefits are to be derived
from a department head's ability and expertise, he should be allowed to
attend to his duties and responsibilities without the distraction of other
governmental offices or employment. He should be precluded from
dissipating his efforts, attention and energy among too many positions of
responsibility, which may result in haphazardness and inefficiency. Surely
the advantages to be derived from this concentration of attention,
knowledge and expertise, particularly at this stage of our national and
economic development, far outweigh the benefits, if any, that may be
gained from a department head spreading himself too thin and taking in
more than what he can handle.
Finding Executive Order No. 284 to be constitutionally infirm, the court
hereby orders respondents Secretary of Environment and Natural
Resources Fulgencio Factoran, Jr., Secretary of Local Government  Luis
45
Santos, Secretary of National Defense Fidel V. Ramos, Secretary of
Health Alfredo R.A. Bengzon and Secretary of the Budget Guillermo
Carague to immediately relinquish their other offices or employment, as
herein defined, in the government, including government-owned or
controlled corporations and their subsidiaries. With respect to the other
named respondents, the petitions have become moot and academic as
they are no longer occupying the positions complained of.
During their tenure in the questioned positions, respondents may be
considered de facto officers and as such entitled to emoluments for
actual services rendered.  It has been held that "in cases where there is
46
no de jure, officer, a de facto officer, who, in good faith has had
possession of the office and has discharged the duties pertaining thereto,
is legally entitled to the emoluments of the office, and may in an
appropriate action recover the salary, fees and other compensations
attached to the office. This doctrine is, undoubtedly, supported on
equitable grounds since it seems unjust that the public should benefit by
the services of an officer de facto and then be freed from all liability to
pay any one for such services.  Any per diem, allowances or other
47
emoluments received by the respondents by virtue of actual services
rendered in the questioned positions may therefore be retained by them.
WHEREFORE, subject to the qualification above-stated, the petitions are
GRANTED. Executive Order No. 284 is hereby declared null and void
and is accordingly set aside.
SO ORDERED.
G.R. No. 122197 June 26, 1998
ZOSIMO M. DIMAANDAL, Petitioner, vs. COMMISSION ON
AUDIT, Respondent.
 
MARTINEZ, J.:
This petition for certiorari seeks the reversal of the decision of the
Commission on Audit dated September 7, 1995, 1 the dispositive portion of
which reads, to wit:
Foregoing premises considered, the instant appeal cannot be given due
course. Accordingly, the disallowance in question in the total amount of
P52,908.00 is hereby affirmed. Considering that the claim for the RATA
differential in the amount of P8,400.00 is devoid of any legal basis, the
same is also disallowed. Hence, appellant Zosimo M. Dimaandal is hereby
directed to refund the salary and RATA differential in the amount of
P61,308.00 he had received from the Provincial Government of Batangas. 2
The undisputed facts:
On November 23, 1992, petitioner Zosimo M. Dimaandal, then holding the
position of Supply Officer III, was designated Acting Assistant Provincial
Treasurer for Administration by then Governor Vicente A. Mayo of
Batangas. Pursuant to the designation, petitioner filed a claim for the
difference in salary and Representation and Transportation Allowance
(RATA) of Assistant Provincial Treasurer and Supply Officer III for the
whole year of 1993 in the total amount of P61,308.00.
However, the Provincial Auditor disallowed in audit P52,908.00 of the
claim. What was allowed was only the amount of P8,400.00 which
corresponds to the difference in the allowances attached to the designation
and the position occupied by the appellant. The disallowances was
premised on the following reasons:
1. The provisions of Section 2077 of the Revised Administrative Code is
not applicable in the instant case as the power to fill the position of
Assistant Provincial Treasurer rests on the Secretary of Finance.
2. The designation is temporary in nature and does not amount to the
issuance of an appointment as could entitle the designee to receive the
salary of the position to which he is designated (Opinion of the Director,
Office for Legal Affairs, Civil Service Commission dated January 25, 1994).
On August 3, 1994, Governor Mayo wrote to the Provincial Auditor
requesting reconsideration of the subject disallowance, interposing the
following reasons:
1. That Section 2077 of the Revised Administrative Code is applicable in
the instant case as the same provides that the Governor General or the
officer having the power to fill-up a temporary absence or disability in the
provincial office has the power to order or authorize payment of
compensation to any government officer or employee designated or
appointed temporarily to fill the place;
2. That the budget containing an appropriation for the position of Assistant
Provincial Treasurer for Administration was already approved by the
Provincial Board; and
3. That Mr. Dimaandal at the time of his designation as Acting Provincial
Treasurer for Administration was no longer performing the duties and
functions of Supply Officer III.
The Provincial Auditor, however, denied the request for reconsideration.
Appellant was required to refund the amount of P52,908.00 which was
disallowed.
Petitioner appealed to the respondent Commission on Audit which
sustained the stand of the Provincial Auditor of Batangas as valid and
proper. The respondent Commission was of the view that the petitioner
was merely designated as an Assistant Provincial Treasurer for
Administration in addition to his regular duties. As such, he is not entitled
to receive an additional salary. The Commission further opined that
petitioner was likewise not entitled to receive the difference in RATA
provided for under the Local Budget Circular issued by the Department of
Budget and Management considering that the party designating him to
such position is not the "duly competent authority," provided for under
Section 471 of the Local Government Code. Notably, petitioner was
appointed as Assistant Provincial Treasurer for Administration by the
Secretary of Finance only on July 8, 1994.
Thus, the respondent Commission not only affirmed the disallowance of
the amount of P52,908.00 but likewise disallowed the claim for the RATA
differential in the amount of P8,400.00, for being devoid of any legal basis.
Petitioner was, therefore, directed to refund the salary and RATA
differential in the amount of P61,308.00.
Hence, this petition.
The issue here is whether or not an employee who is designated in an
acting capacity is entitled to the difference in salary between his regular
position and the higher position to which he is designated.
Petitioner avers that the respondent Commission's decision is "probably
not in accordance with applicable decisions of the Supreme Court." 3 He
cites the cases of Cui,  et. al.  vs. Ortiz, et.  al., 4 April 29, 1960; and,
Menzon vs. Petilla, May 20, 1991, 5 which laid down the rule that de
facto officers are entitled to salary for services actually rendered.
Petitioner contends that he may be considered as a de facto officer by
reason of services rendered in favor of the Province of Batangas. He then
posits the view that to disallow his compensation and in the process allow
the Province of Batangas to keep and enjoy the benefits derived from his
services actually rendered would be tantamount to deprivation of property
without due process of law, and impairment of obligation of contracts duly
enshrined in the Constitution.
On the other hand, the respondent Commission, through the Office of the
Solicitor General, maintains that decisions cited by petitioner do not find
application in petitioner's case. In the case of Menzon, what was extended
was an appointment to the vacant position of Vice-Governor. Here, what
was extended to petitioner was not appointment but a mere designation.
Thus, the nature of petitioner's designation and in the absence of authority
of the Governor to authorize the payment of the additional salary and
RATA without the appropriate resolution from the Sangguniang
Panlalawigan does not make the ruling on de facto officers applicable in
this case.
We find the petition to be without merit.
We are not persuaded by petitioner's insistence that he could still claim the
salary and RATA differential because he actually performed the functions
pertaining to the office of Acting Assistant Provincial Treasurer and,
therefore, entitled to the salary and benefits attached to it despite the fact
that the Governor of Batangas had no authority to designate him to the
said position.
The law applicable is Section 471(a) of RA 7160 otherwise known as the
Local Government Code which mandates that:
Sec. 471. Assistant Treasurers. - (a) An Assistant treasurer may be
appointed by the Secretary of Finance from a list of at least three (3)
ranking eligible recommendees of the governor or mayor, subject to civil
service law, rules and regulations.
xxx xxx xxx
In fact, the appointing officer is authorized by law to order the payment of
compensation to any government officer or employee designated or
appointed to fill such vacant position, as provided under Section 2077 of
the Revised Administrative Code which states that:
Sec. 2077. Compensation for person appointed to temporary service.
xxx xxx xxx
In case of the temporary absence or disability of a provincial officer or in
case of a vacancy in a provincial office, the President of the Philippines or
officer having the power to fill such position may, in his discretion, order
the payment of compensation, or additional compensation, to any
Government officer or employee designated or appointed temporarily to fill
the place, but the total compensation paid shall not exceed the salary
authorized by law for the position filled.
Undoubtedly, the aforecited laws do not authorize the Provincial Governor
to appoint nor even designate one temporarily in cases of temporary
absence or disability or a vacancy in a provincial office. That power resides
in the President of the Philippines or the Secretary of Finance.
Necessarily, petitioner's designation as Assistant Provincial Treasurer for
Administration by Governor Mayo Being defective, confers no right on the
part of petitioner to claim the difference in the salaries and allowances
attached to the position occupied by him.
Moreover, what was extended to petitioner by Governor Mayo was merely
a designation not an appointment. The respondent Commission clearly
pointed out the difference between an appointment and designation, thus:
There is a great difference between an appointment and designation. While
an appointment is the selection by the proper authority of an individual
who is to exercise the powers and functions of a given office, designation
merely connotes an imposition of additional duties, usually by law, upon a
person already in the public service by virtue of an earlier appointment
(Santiago vs. COA, 199 SCRA 125).
Designation is mere imposition of new or additional duties on the officer or
employee to be performed by him in a special manner. It does not entail
payment of additional benefits or grant upon the person so designated the
right to claim the salary attached to the position (COA Decision NO. 95-
087 dated February 2, 1995). As such, there being no appointment issued,
designation does not entitle the officer designated to receive the salary of
the position. For the legal basis of an employee's right to claim the
attached thereto is a duly issued and approved appointment to the position
(Opinion dated January 25, 1994 of the Office for Legal Affairs, Civil
Service Commission, Re: Evora, Carlos, A. Jr., Designation). 6
This Court has time and again ruled that:
Although technically not binding and controlling on the courts, the
construction given by the agency or entity charged with the enforcement
of a statute should be given great weight and respect (In re Allen, 2 Phil.
630, 640), particularly so if such construction, as in the case at bar, has
been uniform, and consistent, and has been observed and acted on for a
long period of time (Molina vs. Rafferty, 38 Phil. 167; Madrigal vs.
Rafferty, 38 Phil. 414; Philippine Sugar Central vs. Collector of Customs,
51 Phil.
143). 7
We see no justifiable reason to sustain petitioner's argument that non-
payment of his salary differential and RATA would be a violation of his
constitutional right against deprivation of property without due process of
law and the non-impairment of obligation of contracts clause in the
Constitution.
The right to the salary of an Assistant Provincial Treasurer is based on the
assumption that the appointment or designation thereof was made in
accordance with law. Considering that petitioner's designation was without
color of authority, the right to the salary or an allowance due from said
office never existed. Stated differently, in the absence of such right, there
can be no violation of any constitutional right nor an impairment of the
obligation of contracts clause under the Constitution.
The nature of petitioner's designation and the absence of authority of the
Governor to authorize the payment of the additional salary and RATA
without the appropriate resolution from the Sangguniang Panlalawigan
does not make him a de facto officer.
A de facto officer is defined as one who derives his appointment from one
having colorable authority to appoint, if the office is an appointive office,
and whose appointment is valid on its face. It is likewise defined as one
who is in possession of an office, and is discharging its duties under color
of authority, by which is meant authority derived from an appointment,
however irregular or informal, so that the incumbent be not a mere
volunteer. 8 Then a de facto officer is one who is in possession of an office
in the open exercise of its functions under color of an election or an
appointment, even though such election or appointment may be
irregular. 9
Petitioner invokes in his favor the ruling in Menzon vs. Petilla, 10 that a de
facto officer is entitled to receive the salary for services actually rendered.
However, his reliance on the Menzon case is misplaced. In Menzon, what
was extended was an appointment to the vacant position of Vice-
Governor, in petitioner's case, he was designated. The appointment of
Menzon had the color of validity. This Court said:
And finally, even granting that the President, acting through the Secretary
of Local Government, possesses no power to appoint the petitioner, at the
very least, the petitioner is a de facto officer entitled to compensation.
There is no denying that the petitioner assumed the Office of the Vice-
Governor under a color of a known appointment. As revealed by the
records, the petitioner was appointed by no less than the alter ego of the
President, The Secretary of Local Government, after which he took his oath
of office before Senator Alberto Romulo in the Office of Department of
Local Government Regional Director Res Salvatierra. Concededly, the
appointment has the color of validity.
Likewise, the doctrine in Cui, et. al. vs. Ortiz,  et. al. 11 does not apply in
petitioner's case. In Cui, this Court held:
Petitioners' appointment on December 1 and 12, 1955 by the then mayor
of the municipality were legal and in order, the appointing mayor still in
possession of his right to appoint. For such appointment to be complete,
the approval of the President of the Philippines is required. The law
provides that pending approval of said appointment by the President, the
appointee may assume office and receive salary for services actually
rendered. Accordingly, therefore, in that duration until the appointment is
finally acted upon favorably or unfavorably, the appointees may be
considered as "de facto" officers and entitled to salaries for services
actually rendered.
Finally, the appointment signed by Finance Undersecretary Juanita D.
Amatong is dated July 8, 1994. Petitioner's claim that the appointment
retro-acts to his assumption of office is not confirmed by the express
phraseology of the appointment itself, which states:
Kayo ay nahirang na ASSISTANT PROVINCIAL TREASURER FOR
ADMINISTRATION na may katayuang PERMANENT  sa OFFICE OF THE
PROVINCIAL TREASURER OF BATANGAS  sa pasahod na  ONE HUNDRED
TWENTY ONE THOUSAND SIX HUNDRED TWENTY (P121,620.00) P.A. piso.
Ito ay magkakabisa sa petsa ng pagganap ng tungkulin subalit di aaga sa
petsa ng pagpirma ng puno ng tanggapan o appointing authority.  12
The subsequent appointment of petitioner to the position on July 8, 1994,
cannot justify petitioner's retention of the excess amount of P61,308.00,
which corresponds to the amount disallowed and ordered refunded by COA
representing the salary and RATA in excess of what was due him in 1993.
WHEREFORE, premises considered, the petition is hereby DISMISSED for
lack of merit.
SO ORDERED.
G.R. No. L-7806             July 12, 1912
CARROLL H. LAMB, petitioner,
vs.
W.H. PHIPPS, as Auditor for the Philippine Islands, respondent.
Anzi B. Kelly for petitioner.
Office of the Solicitor-General Harvey for respondent.
JOHNSON, J.:
This was an application for the writ of mandamus presented to the
Supreme Court. The petition alleged that:
I. Relator states that both of the parties to this proceeding are
within the jurisdiction of this court, respondent residing in the city
of Manila and is the duly appointed and acting Auditor for the
Philippine Islands; relator residing in the pueblo of Tacloban,
Leyte, Philippine Islands, and prior to January 1, 1912, was an
employee of said Government as superintendent of the Iwahig
Penal Colony.
II. Respondent, as the "Insular Auditor," has certain legal duties to
perform which are especially enjoined by law or which are
obligatory upon him by virtue of his office as Auditor for the
Philippine Islands; and the said duties which relator desires
coerced do not require on the part of said Auditor the use of
discretion; but should this court decide that said duties are
discretionary, then this relator alleges that respondent's use of
such discretion is exceptionally arbitrary and illegal.
III. It is the legal duty of respondent to issue an auditor's
certificate (clearance) to any employee or agent of the
Government who has left the service, when the legal records of
the office of the Auditor for the Philippine Islands demonstrate
and show that the accounts of said employee or agent are
balanced and that said agent or employee has properly
accounted for all government property and funds which have
come into his possession during the time of said employment.
This status of relator's accounts so exist, but respondent, though
requested both verbally and in writing, has failed and refused,
and unlawfully neglected to issue said certificate (clearance) —
as a result of which relator is unlawfully excluded from the use
and enjoyment of two of his rights:
First. Without this clearance relator cannot collect from the
Government the amounts due him for accrued leave, salary and
transportation. (See note on Exhibit C.)
Second. Without this clearance relator is deprived of his liberty
and unable to leave these Islands; in fact, should necessity
demand his leaving, and should he even attempt to leave, it
would be a criminal offense for him to do so. (Sec. 665,
Compilation of the acts of the Philippine Commission.)
IV. For twelve years relator has faithfully served the Government
of the Philippine Islands, as soldier, as provincial treasurer of
Marinduque, as provincial treasurer and supervisor of Mindoro, as
provincial treasurer of Laguna, and for the past four years he has
been the superintendent of the Iwahig Penal Colony, from which
last named position, on account of ill health, relator voluntarily
presented his resignation, and which was, on January 2, 1912,
reluctantly accepted, as appears by Exhibits A and B, hereto
attached.
V. By respondent's omission and neglect of legal duty, and by
improper presentation of facts and law to the Chief Executive of
these Islands, relator, in addition to the disgrace and discredit to
his character and reputation, had instituted against three charges
for "malversation of public funds."
These charges, which should never had been presented, have,
by direction of the Governor-General, the Honorable W. Cameron
Forbes, been ordered dismissed or the prosecution thereof
discontinued.
VI. The copies of said charges demanded from the Attorney-
General, being the only legal information of official misconduct
received by relator, and they having been eliminated, relator's
attorney applied for his clearance, in order that relator might at be
at liberty and obtain the amounts due him from the Government,
which amounts are badly needed by himself, wife and child;
whereupon respondent placidly informed the said attorney that —
"He would not grant said clearance, and that relator could
not obtain any amounts due him, awaiting the result of a
probable civil suit which might be filed by one Fernandez
against the Government."
Yet the legal records of the respondent's office show that this
same Fernandez has signed the vouchers and the warrant of
payment, acknowledging to have received in full form the
Government the amounts which would be the foundation for this
"probable suit."
VII. The dates of the transactions which would figure in the
foundation of this "probable suit" fall within the period from
September 5, 1909, to November 17, 1910; and since said dates
relator's accounts have been balanced, and he was, on March 11,
1911, granted a clearance, copy hereto attached and marked
Exhibit C; and up to the date of said clearance his accounts have
been fully audited and balanced and closed; and said audit has
not been revoked or reopened, nor can said accounts be now
reopened so as to in any way affect the rights of relator in these
proceedings.
VIII. Covering the period from March 11, 1911, the date of said
clearance, which latter is absolute and binding upon the
Government and on respondent, up to and including December
31, 1911, the date of the effective acceptance of relator's
resignation, relator has accounted for all property and funds of
the Government which have come into his possession; and it is
not even claimed by the "Insular Auditor" that he has not done so.
The said W.H. Phipps, as auditor, refused to issue said clearance
for the above noted period because of the danger of a probable
suit, application to bring which has not even been made, and
never will be granted, as to the last allegation in Paragraph VI of
this petition demonstrates that this auditorial Fernandez claim has
not the shadow of a shade of legal ground.
IX. Respondent's action in the investigation of this whole affair
has been illegal and improper. He has not only failed specifically
to inform relator of the facts upon which this complaint was
based, but actually refused to permit an attorney from this office
to sit with the Attorney-General in order that relator might be
confronted with the facts alleged against him and given an
opportunity to explain same.
During relator's absence from the colony, respondent's deputies
or agents, without warrant of law or without even asking
permission of relator, seized a locked and sealed box, the
property of relator, and without his permission or warrant of law
forcibly broke open same and extracted therefrom documents
and papers, the personal property of relator and property for
which relator, as superintendent of Iwahig Penal Colony, was
responsible, and respondent has not returned same though
requested to do so. This act of robbery respondent attempts to
justify on the ground that it was "done in the presence of
witnesses."
X. Relator's attorney has been in Manila more than a month
engaged in this case, trying to obtain from respondent a legal
hearing; and relator himself, at great financial loss and mental
worry, has remained ready to comply with any legal requirements
of respondents for nearly three months. Both relator and his
attorney have exhausted all ordinary means within human power
to obtain from respondent this clearance or legal reason for its
withholding; but all efforts so to do have in vain, and there is no
other plain, speedy or adequate remedy in the ordinary courts of
law by which relator can obtain relief, except through these
proceedings.
XI. Therefore, relator, in utter despair, appears before this court
and begs it to hear his petition and to issue a peremptory
mandate commanding W.H. Phipps, as Auditor for the Philippine
Islands, to issue at once to C. H. Lamb a perfect clearance and
one fully effective, so relator can enjoy his constitutional rights to
liberty and property and upon which the said C. H. Lamb may
obtain from the Government of the Philippine Islands all amounts
due him for salary, accrued leave and transportation, by virtue of
his employment as superintendent of the Iwahig Penal Colony.
Relator further asks damages against respondent in the amount
of one thousand pesos (P1,000) Philippine currency, the
expenditure of which amount relator he had to make by virtue of
respondent's illegal acts and neglect of duty, and that respondent
pay the costs of these proceedings.
 XII. In view of the fact that practically all the evidence upon which DEPARTMENT OF PUBLIC INSTRUCTION,
this petition is base is documentary and government reports, BUREAU OF PRISONS,
easily obtainable, and in view of the great unnecessary delay, Manila, January 2, 1912.
expense and hardship already suffered by relator, and in view of
the fact that relator is the general manager of a large business, MY DEAR MR. LAMB: In accepting your resignation as
just inaugurated by Anzi B. Kelly in Tacloban, Leyte, and that said superintendent of Iwahig Penal Colony, I desire to express my
business is practically at a standstill and without a head,-the court appreciation of the very excellent work done by you in that
is requested to expedite these proceedings, in accordance with capacity.
the provisions of sections 518 of the Code of Civil Procedure.
When you relinquished your duties as treasurer for the Province
Manila, March 18, 1912. of Laguna to accept this position on September 1st, 1908, the
Iwahig Penal Colony was a problem, which you have very
(Sgd.) AMZI B. satisfactorily solved, and have succeeded in placing the colony in
KELLY, first class condition.
Attorney for
relator. You have worked untiringly, intelligently, and satisfactorily, many
times to the detriment of your own health, but as a result of the
EXHIBIT A. Iwahig Penal Colony stands out as one of the best examples that
the history of penology knows.
DEPARTMENT OF PUBLIC INSTRUCTION,
BUREAU OF PRISONS, I trust that your future will be as successful as your past and I
Manila, January 2, 1912. know that you will give to your new duties the same loyal work
that you have been to the Iwahig Penal Colony.
Sir: I have the honor to inform you that your resignation effective
December 31st, 1911, has been accepted. With very best wishes, I am,

You were appointed superintendent of Iwahig Penal Colony, on Very sincerely, (Sgd.) M. L. STEWART,
September 1st, 1908, and P6,000 per annum, by transfer from Director of Prisons.
provincial treasurer of Laguna. "Your services have been
satisfactory and no objection exists on the part of this Bureau to Mr. C. H. LAMB, Manila, P.I.
your reinstatement in any branch of the Philippine services.
EXHIBIT C.
Very respectfully,
AFFIDAVIT OF OFFICER AND AUDITOR'S CERTIFICATE.
(Sgd.) M. L.
STEWART, Personally appeared before me, the undersigned C. H. Lamb,
Director of Prisons. who exhibited to me his cedula certificate numbered 8715, issued
at Manila dated 1/30/09, and who, being duly sworn, deposes and
Mr. C. H. LAMB, Manila, P.I. says, that he has rendered a full and complete accounting to the
Auditor for the Philippine Islands for all funds and property for
EXHIBIT B. which he has been accountable or responsible under the
provisions of existing law.
 (Signed) C. H. petition, and that the statements made herein, except the
LAMB, conclusions of law and those quotations appearing as made by
Supt. I. P. C. the Auditor for the Philippine Islands, are true and correct, and
that the said conclusion of law and the said statements made to
Subscribed and sworn to before me at Manila, P. I., this 11th day the relator's attorney by said auditor are true to the best of
of relator's knowledge and belief.
March, 1911.
(Sgd.) C. H.
(Signed) CHAS. A. STILES, Notary LAMB, Relator.
Public.
My commission expires Jan. 1st, 1913. Sworn and subscribed to before me this 18th day of March, A. D.
1912, by C. H. Lamb, who presented cedula No. F-32719, issued
(Here appears seal of Chas. A. Stiles, notary public.) at Manila on March 19, 1912.

I hereby acknowledge receipt of duplicate copies of this affidavit, (Sgd.) V. DIMAGUILA, Notary Public.
which is confirmed by an examination of the records of this date, My commission expires December 31, 1912.
of accounts-current and property returns as rendered and (Notary's seal.)
received.
PHILIPPINE ISLANDS,
Manila, P.I., March 11, 1911. City of Manila, ss:

(Signed) W.
RANDALL,
Acting Auditor.
By C. A. STILES.
NOTE. — In these case of civil officers the proper disbursing
officer will withhold final pay until the officer's copy of this
certificate is presented, duly signed by the auditor.
(Signed in duplicate.)
THIS CERTIFICATE MUST BE HELD IN READINESS FOR
PRESENTATION, IF CALLED FOR, UPON EMBARKATION.
A. Amzi B. Kelly, attorney for relator, states that he is familiar with
the contents of this petition, and that the statements quoted from
the Insular Auditor, as herein written, were made to him by W. H.
Phipps, the Auditor for the Philippine Islands; that the conclusions
of law necessarily stated in this petition are the result of careful
investigation and are true to the best of affiant's legal knowledge
and belief; that the other statements made in this petition have
been investigated by affiant with much care and with all the power
in his means, and that these statements are true to the best of his
knowledge and belief.
(Sgd.) AMZI B.
KELLY,
Attorney for
relator.

PHILIPPINE ISLANDS, Sworn and subscribed to before me, this 18th day of March, A. D.
City of Manila, ss: 1912, by Amzi B. Kelly, who presented cedula No. F-418732,
issued at Tacloban, Leyte, on January 13, 1912.
Carroll H. Lamb, late superintendent of Iwahig Penal Colony,
states that he is the relator in the proceedings; that he has read
and is familiar with the contents of each of the paragraphs of this
 (Sgd.) V. DIMAGUILA, Notary Public.
My commission expires December 31, 1912.
(Notary's seal.)
Upon the presentation of the foregoing petition, the Supreme Court
ordered the respondent to appear and show cause within a period of
twenty-four hours, if possible, why the writ prayed for should not be
granted.
The respondent appeared and filed a demurrer based upon the following
grounds, to wit:
1. That the court has no jurisdiction to issue mandamus to the
Auditor for the Philippine Islands.
2. That the complaint does not state facts sufficient to constitute a
cause of action.
Upon the issue thus presented by the complaint and the demurrer, the
cause was duly submitted to the court. After a careful consideration of the
facts contained in the petition and the law applicable thereto, the court,
on the 30th day of March, 1912, directed the following order to be
entered, sustaining in part the demurrer:
With reference to the demurrer interposed by the defendant in the
application for a writ of mandamus, No. 7806, Carroll H.
Lamb vs. W. H. Phipps, Insular Auditor, and reserving the right to
render later a more extended judgment, the court said:
"Two reasons are given for this demurrer: one, lack of
jurisdiction of this court to take cognizance of the
petitioner's application; and the other that the facts stated
in the application do not constitute a cause of action; and
"In view of the fact that the petitioner has not established
in his application any facts other than that he admitted his
accounts to the defendant and that the latter has not yet
approved them through risk of fear that a claim may be
presented, and that, even though this facts may be
sufficiently proved at the trial, in addition to being admitted
in the demurrer, they would not furnish sufficient grounds
for granting the writ of mandamus, the demurrer is
sustained and the petitioner is authorized to amend his
application within five days. Messrs. Justices Carson and
Trent dissent and Mr. Justice Trent reserves the right to
submit later in writing his dissenting opinion."
The above very brief order of the court was directed by reason of the fact
that it was the last day of the session of the court for the January term of
1912, and for the further reason that no member of the court then had
time to more fully state the reasons upon which said order was based. In
view of the importance of the question presented, it is deemed advisable
to more fully discuss the law relating thereto. It may been noted that the
petitioner did not file an amended petition within the time mentioned in
the above order. The facts involved in the present case are stated in the
petition. The materiality of the exhibits is not quite clear. It is believed that
all of the material allegations of the petition which the relator intended to
make, eliminating all purely evidential and immaterial allegations, may be
fairly stated as follows, to wit:
First, that the relator had been for a period of four years the
superintended of the Iwahig Penal Colony. (See paragraphs 1, 4 and 9 of
the petition.)
Second, that the relator has rendered an account for all property and
funds of the Government which have come into his possession. (See
paragraphs 3 and 8 of the petition.)
Third, that it is the legal duty of the respondent as Auditor for the
Philippine Islands to issue an Auditors' certificate (clearance) to any
employee or agent of the Government who has left the service, when
the records of the office of the Auditor show that the accounts of said
employee or agent are balanced and that said employee or agent has
properly rendered an account for all Government property and funds
which have come into his possession during the time of said employment.
(See paragraph 3 of the petition.)
MEANING OF AUDITOR'S CERTIFICATE OR CLEARANCE.
Before discussing the rules of law controlling in the present case, a word
or explanation of what is meant by the Auditor's certificate (clearance)
may be of assistance to a better understanding of the purpose of the
present petition. Act No. 1605 of the Philippine Commission provides that
no bonded officer or bonded employee of the Insular Government, or of
any provincial or municipal government in the Philippine Islands, or of the
city of Manila, whether in the actual service of such Government or
separated therefrom, shall leave or attempt to leave the Philippine Islands
without first securing a certificate (clearance) from the Auditor showing
that his accounts with the Government of which he is or was such bonded
officer or bonded employee have been finally settled by said Auditor.
Said Act further provides that any such officer or employee violating of
the provision of this Act shall, on conviction thereof, be punished by
imprisonment for not exceeding six months or by a fine of not more than
P1,000 or both, in the discretion of the court.
During the argument of the present cause, the attorney for the relator
stated that he could not leave or attempt to leave the Philippine Islands,
without rendering himself liable to a criminal prosecution under and by
virtue of said Act (No. 1605), without having the Auditor's certificate or
clearance. It will be noted upon reading the petition that there is no word
or intimation therein indicating in any way (except the allegation that the
relator had been the custodian of Government property and funds) that
he was a bonder officer. Unless he was a bonded officer or employee of
the Government, said Act does not apply to him and there is no necessity
for a clearance. Said Act (No. 1605) only applies to bonded officers of
employees. It may be assumed, however, for the purposes of the present
case, that the relator was a bonded officer or employee of the Philippine
Government and that in the absence of the Auditor's certificate or
clearance he might be subjected to a criminal action under said Act (No.
1605) if he attempted to leave the Philippine Islands without said
certificate.
DUTY OF THE AUDITOR IN APPROVING ACCOUNTS.
The relator alleges that he has rendered an account for all property and
funds of the Government which came into his possession, and concludes
that he is therefore entitled to an Auditor's certificate or clearances. Is the
mere rendition of accounts of Government property and funds by an
employee all that is necessary to entitle such employee to his clearance?
Is the Auditor, who is responsible for the proper disposition of
Government property and funds, obliged to accept a mere paper
balance? Is the Auditor not to be given an opportunity to count the cash
(funds) as well as to see that the property of the Government actually
exists which had been in the possession or under the control of such
employee? Is the Auditor not to be given an opportunity to make an
actual inspection for the purpose of satisfying his own mind that the paper
balance conforms with the actual facts? Experience has taught the
auditors as well as business men generally that mere paper balances are
not always reliable. The actual funds and property are not always visible
in such balances.
It is confidently contended that the Auditor is not obliged under the law to
accept a mere paper accounting as final and conclusive as to the real
responsibility of Government employees and to issue a clearance upon
that alone. He may, it is true, if he is satisfied; but certainly, he may, if he
so desires and if he has any doubt about the correctness of such
accounts, make an actual examination of the funds and property
represented by such paper accounts or balances. If then, the Auditor is
not obliged to accept the mere paper accounts or balances, when or
within what time must he make his investigations and pass upon the
accounts rendered? Must he do so immediately? The law does not so
require. In justice to all parties and especially for the best interests of the
Government, he should verify the accounts rendered as soon as
practicable. In any event, the accounts must be verified and accepted or
rejected before the lapse of three years. (Sec. 29, Act No. 1792.) At least,
it would be seen under said Act (Sec. 29, Act No. 1792) that after the
lapse of three years the accounts cannot be reopened against an
employee or agent. In the present case there is no allegation showing
when the accounts were rendered. The relator resigned fro his position
on the 31st day of December, 1911. His resignation was accepted
January 2, 1912. Certainly, his final accounts were not rendered before
that date. In the present case, at least, there seems to have been no
unreasonable or unnecessary delay, and there is no allegation in the
petition to that effect. In fact the relator alleged that the respondent had
already acted and had denied his claim (see paragraph 8 of petition) and
gave what seems to be a good reason thereof.
Whenever a duty is imposed upon a public official and an unnecessary
and unreasonable delay in the exercise of such duty occurs, if it is clear
duty imposed by law, the courts will intervene by the extraordinary legal
remedy of mandamus to compel action. If the duty is ministerial, the
courts will require specific action. If the duty is purely discretionary, the
courts by mandamus will require action only. For example, if an inferior
court, public official, or board should, for an unreasonable length of time,
fail to decide a particular question to the great detriment of all the parties
concerned, or a court should refuse to take jurisdiction of a cause when
the law clearly gave it jurisdiction, mandamus will issue, in the first case
to require a decision, and in the second to require that jurisdiction be
taken of the cause. (De la Beckwith vs. Superior Court, 146 Cal., 496;
State vs. Judges of Fifth Circuit Court of Appeals, 48 La. Ann., 672;
Taylor vs. Mountcalm Circuit Judge, 122 Mich., 692; Kelsey vs. Church,
112 N.Y. App. Div., 408; State vs. Smith, 69 Ohio, 196; Ex
Parte Connaway, 178 U.S. 421; In re Grossmayer, 177 U. S., 48;
Rex vs. Goodrich, 15 Q. B., 671; 69 Eng Com. Law, 671;
State vs. Foster, 106 La. Ann., 425.) In the present case, however,
the mandamus is not for the purpose of the compelling action only. It is
presented for the purpose of requiring particular action on the part of the
Auditor. There is a very wide distinction between the use of the writ
of mandamus to compel action and its use to compel particular action on
the part of a public official, board, or officer upon whom particular duties
are imposed by law. This difference will be discussed later.
LEGAL DUTIES OF AUDITOR.
As to the legal duties of the Auditor for the Philippine Islands, we find that
they are generally prescribed by the laws of the Philippine Legislature.
(See Acts Nos. 90, 145, 215, 328, 909, 1402, and 1792.) Those duties
which are not specifically and positively defined by such laws are
prescribed by comparison with the duties of other officers which are well
defined by law. (See sec. 6, Act No. 1792.)
Generally, the duty of the Auditor for the Philippine Islands shall be
examine, audit, and settle all accounts pertaining to the revenues and
receipts from whatever source of the Insular Government, of the city of
Manila, of the provinces, municipalities, townships, settlements, or other
governmental branches. The jurisdiction of the Auditor for the Philippine
Islands is exclusive over accounts, whether the funds or property, and all
vouchers and records pertaining thereto. His decision upon such
accounts is final and conclusive upon the executive branches of the
Government except when an appeal therefrom is taken by the aggrieved
party or the head of the department concerned within one year. Under the
law of the Philippine Islands, the Auditor generally has like authority as
that conferred by law upon the several auditors of the States of the
United States and the Comptroller of the United States Treasury. (See
sec. 6, Act No. 1792.) Sections 24 to 36 of Act No. 1792 provide in more
or less detail a method of accounting for funds and property of the
Philippine Government in its various branches and for the settlement of
such accounts. Section 29 provides that even after accounts have been
settled, the Auditor, on account of fraud, collusion, error in calculation, or
newly discovered material evidence, or when in his judgment the
interests of the Government may seem to require it, is authorized within
three years after the original settlement, to reopen any account previously
settled by him or by a district auditor, and, after written notice to the
person involved, and after a reasonable time for the reply or appearance
of said person, to certify thereon a new balance.
The foregoing, in a most general way, points out the duties of the Auditor
for the Philippine Islands. His duties may be restated briefly as follows:
(a) He has exclusive jurisdiction to examine, audit and settle all accounts
pertaining to the revenues and receipts from whatever source of the
Insular Government, the city of Manila, the provinces, the municipalities,
the townships, the settlements, or any other governmental branch; and
(b) his decisions are final and conclusive except when an appeal is taken
therefrom within one year. (Secs. 2, 6, Act No. 1792.) Section 36 of Act
No. 1792 provides that when any person is aggrieved by the action or
decision of the Auditor in the settlement of his accounts or claims, that
such person, within one year, may take an appeal in writing to the
Governor-General, which appeal shall specifically set forth the particular
action of the Auditor to which exception is taken, with the reasons and
authorities relied upon for a reversal of the action or decision of the
Auditor. If the Governor-General shall confirm the action of the Auditor,
he shall so endorse the appeal and transmit it to the Auditor and the
action shall thereupon be final and conclusive. Should the Governor-
General refuse to sustain or approve the action of the Auditor, he shall
forthwith transmit his grounds of disapproval of the Secretary of War,
together with the appeal and papers necessary to a proper understanding
of the matter. The decision of the Secretary of War in such cases shall be
final and conclusive. To recapitulate then, we believe that the following
propositions relating to the power and jurisdiction of the Auditor in
auditing the accounts for the different governmental entities of the
Philippine Islands are true, to wit:
First, that the Auditor for the Philippine Islands has exclusive jurisdiction
in the first instance to examine, audit, and settle all accounts pertaining to
the revenues and receipts from whatever source of every governmental
entity within the Philippine Islands.
Second, that his decision or the result of his accounting upon such
revenues and receipts and accounts is final and conclusive upon all
parties unless an appeal is taken within a period of one year.
Third, that the Governor-General of the Philippine Islands (See sec. 36,
Act No. 1792) is not possessed with power to revoke or alter or modify
the results of accountings made by the Auditor without reference to the
Secretary of War.
Fourth, that when an appeal is taken to the Governor-General and the
latter disapproves of the accounting made by the auditor, he must at once
forward to the Secretary of War for final action the matter in controversy.
If, then, the Auditor for the Philippine Islands is possessed with exclusive
and final jurisdiction to audit all accounts of the Philippine Government,
and if his judgment is final unless an appeal therefrom is taken and
finally reversed by the Secretary of War, it would seem to be a
reasonable conclusion to hold that he has at least a certain discretion in
arriving at an uncontrolled and independent conclusion as to any
accountability of any accountable employee or official of the Philippine
Government.
The question which are now discussing is not a new one. Very early in
the history of the American Governments, both state and national, it was
found to be very necessary to have some person or official of the
government, who was absolutely free from control, to finally pass upon
the legality of all governmental accounts. His freedom of action and his
right to exercise his own discretion, untrammeled and uncontrolled, has
been the basis of many a judicial, executive, and administrative decision.
As early as the administration of President Jackson (1829-1837) and
even before we find that this question was up for decision. In 1835 Mr.
Jackson, then President of the United States, was asked to overrule a
decision of the Comptroller of the United States. He declined so to do and
made the following brief reply to said request:
The decision of the second Comptroller is final, over whose
decisions the President has no power except by removal.
During the administration of Mr. Polk, a request was made of him to
interfere with the adjustment of a claim which had been presented to and
passed upon by the Comptroller of the United States. He declined to
interfere and in so doing made the following observation:
I decline to interfere on the ground that Congress has expressly
given the authority to settle claims to the accounting officers . . .
and that I have no right to control these officers in the
performance of their duties. (Aug. 9, 1845.)
As early as 1789 an Act was passed by the Congress of the United
States providing that the auditing and revision of accounts should be
made by officers holding their appointments independent heads of the
departments and wholly unconnected with the disbursement of the public
money. The Congress of the United States, in said Act, deemed it
essential to the judicious and economical administration of the financial
affairs of the government, that the officers who directed the expenditures
should not also judge of their legality. Hence, we have, from the very
beginning of the Government of the United States, laws which provided
for the adjustments of the accounts, by accounting officers, whose
decisions were final and who held their appointment independent of the
heads of the departments and wholly unconnected with the
disbursements of the public funds.
We find in Senate Document No. 6, at page 5 of the second session of
the Twenty-third Congress of the United States, the following statement,
which indicates the view of the Senate of the United States upon the
question which we are discussing:
No effectual check can never exist in any case where the same
officer authorizes the expenditure and then the audits, or controls
the audit of the accounts.
Auditors and comptrollers, as accounting officers, are generally regarded
as quasi-official officers. They perform mere ministerial duties only in
cases where the sum due is conclusively fixed by law or pursuant to law.
Except in such cases, the action of the accounting officers upon claims
coming before them for settlement and certification of balances found by
them to be due, is not ministerial merely but judicial and discretionary.
This is shown not only by the express language of the statutes generally,
but by the rulings of the Supreme Court of the United States. In the case
of Watkins vs. Unites States (9 Wall., 759, 764) Mr. Justice Clifford,
delivering the opinion of the court, said:
Vouchers are required by the very words of the Act of
Congress . . . . Without such evidences before the accounting
officers there could not be any intelligent scrutiny of the claim or
any decision which would be satisfactory to the claimant or to the
public.
See also the decision of the Supreme Court of the United States in the
case of Decatur vs. Paulding (14 Pet., 497) (1840), where Mr. Chief
Justice Taney, in delivering the opinion of the court upon the question of
the right of the courts to issue mandamus to control the action of an
executive officer said:
In general, the official duties of the head of one of the executive
departments, whether imposed by Act of Congress or by
resolution, are not mere ministerial duties. The head of an
executive department of the government, in the administration of
the various and important concerns of his office, is continually
required to exercise judgment and discretion. He must exercise
his judgment in expounding the laws and resolutions of Congress,
 under which he is from time to time required to act. If he doubts,
he has a right to call on the attorney-general to assist him with his
counsel; and it would be difficult to imagine why a legal adviser
was provided by law for the heads of departments, as well as for
the President, unless their duties were regarded as executive in
which judgment and discretion were to be exercised.
(Kendall vs. U. S., 12 Pet., 524.)
The statutes of the United States require the Comptroller to exercise his
judgment upon the legality, not only of provisions of law and resolutions
of Congress providing for the payment of money, but they also provide
the means of procuring testimony upon which he may act. The statutes
also provide him with counsel to enlighten him if he should deem it proper
to extend his investigation beyond the papers submitted with the claim or
account. (See Rev. Stat. of U. S., secs. 184 187, 269, 277.) He (the
Auditor or Comptroller) is required to certify balances due in favor or
against the government. To certify is to make certain. To make a
certificate is to exercise judgment and discretion. He is required to
render decisions upon the legality of claims, and his conclusions are not
mere opinions. If they were mere opinions, they would not be final. In
rendering decisions, judgment and discretion must necessarily be
exercised. A decision is by the law presumed to be made after an
intelligent scrutiny of all the facts; has been made. In the discharge of his
duty (Auditor or Comptroller's) he is a judge not only of the law but of the
facts; and he would not be justified in accepting the views, opinions,
findings or rulings of any other officer of the government upon the claims
or vouchers admitted. In the performance of his duties, the Auditor is not
subject to the jurisdiction of any officer of the executive branch of the
government nor to that of any court of the judicial branch. He is not a
mere machine to register or blindly execute the opinions or acts of other
officers in matters which pertain, by the laws of the fiscal system of the
government, by well defined public policy, and by long practice, to the
jurisdiction of the accounting officer — a jurisdiction which it is his duty to
maintain, even in cases in which its existence may be doubtful.
(U.S. vs. Arredondo et al., 6 Pet., 689, 729.) The legislative department of
the government would not have made the decisions of the Auditor final,
unless an appeal is taken therefrom, without intending to give to the
Auditor an uncontrollable discretion in full examining and scrutinizing
every account presented against the Government. The power to certify a
balance, for a like reason, includes the authority to review and decide all
questions of law and fact, and to use all sources of information for that
purpose. A settlement of an account and a certificate of a balance which
cannot go to the sources of evidence and examine all questions of law
and fact would be practically no examination.
In the case of Longwill vs. United States (17 Court of Claims, 291) it was
said:
The accounting officers of the treasury are in duty bound to
scrutinize claims and accounts with great care, as is their
customs, and it is the undoubted right of those who have authority
to decide thereon to reject in whole or in part, ad their judgment
dictates, all those claims which they have reasonable cause to
suspect are tainted with fraud or to which they believe there may
be substantial defects in law or as to the validity of which they are
in doubt.
In the case of Board of Liquidation et al. vs. McComb (92 U. S., 541) the
court said:
The objections to proceedings against state officers
by mandamus or injunction are: First, that it is, in fact, proceeding
against the State itself; and, second, that it interferes with the
official discretion vested in the officers. It is conceded that neither
of this things can be done. A State, without its consent, cannot be
sued by an individual, and a court cannot substitute its own
discretion for that of executive officers in matters belonging to the
proper jurisdiction of the latter.
For the courts to require an auditor to allow or disallow a claim against or
in favor of the Government would be to substitute the courts as the
auditing officers of the Government. Such a result was not contemplated
by a law, which conferred upon another department of the
Government the final and exclusive jurisdiction to consider claims.
(Kendall vs. U. S., 12 Pet., 524; The Borough of Uniontown vs. The
Commonwealth of Pennsylvania, 34 Pa., 293; Harbersham et
al. vs. Savannah etc. Canal Co., 26 Ga., 665; State of Iowa
etc. vs. County Judge etc., 7 Iowa, 186.)
Under the statutes of the United States the comptroller is by express
statute authorized to examine accounts and to certify balances thereon.
The exercise of this power necessarily involves the exercise of judicial
discretion. Judicial action cannot be subject to any control or direction,
except by law, or by an appeal. It is independent of all control except by
law. The authority so given by statute should be exercised with that
untrammeled independence of judgment which is essential to its proper
exercise.
In the case of the United States vs. Lynch (137 U. S., 280), a petition was
presented in which it was alleged —
That the respondents (the comptrollers) have refused, and still do
continue to refuse, to pay the petitioner, or to credit him with, the
sum of $288.60, that being the amount remaining unpaid on the
said travel under the said Act of Congress.
To this petition the respondents (the comptrollers) demurred upon the
following ground:
That mandamus will not lie against an officer of the Treasury
Department for refusal to allow and pay a claim against the united
States, for, however obviously without legal justification his
refusal may be, a mandamus against him to compel such
allowance and payment is none the less in effect a suit against
the United States.
In passing upon the right of the relator to the writ of mandamus, Mr. Chief
Justice Fuller, speaking for the court and citing the case of
Decatur vs. Paulding (14 Pet., 497), supra, said:
It is now argued that the duty of the Fourth Auditor and of the
Second Comptroller under the last clause of section 2 of the Act
of 1835, and the decision of this court in relation to it, was merely
ministerial, and that by the disallowance of relator's claim for
mileage these officers exercised a discretion which they did not
posses; that this was an invalid exercise of an authority under the
United States; and that hence the validity of the authority was
drawn in question. . . .
We think that the authority of the second comptroller and the
fourth auditor is not thus denied here, nor the validity of that
authority questioned, but that what his claim is that in the exercise
of a valid authority, the Auditor and Comptroller erred in respect
to an allowance, in view of the decision of this court in another
case.
The writ of error must be dismissed and it is so ordered.
In the case of Riverside Oil Co. vs. Hitchcock (190 U. S., 316), the relator
presented a petition in the Supreme Court of the District of Columbia
asking for a writ of mandamus to compel the respondent, the Secretary of
the Interior, to vacate a certain order made by him in relation to the
disposition of public lands. Mr. Justice Peckham, speaking for the court
and citing again the case of Decatur vs. Paulding, supra, said:
That the decision of the questions presented to the Secretary of the
Interior was no merely formal or ministerial act is shown beyond the
necessity of argument by a perusal of the foregoing statements of the
issues presented by this record for the decision of the
Secretary. Whether he de decided right or wrong is not the question.
Having jurisdiction to decide at all, he had necessarily jurisdiction, and it
was his duty to decide as he thought the law was, and the courts have no
power whatever under those circumstances to review his determination
by mandamus.
In this case the Supreme Court of the District of Columbia refused to
issue the mandamus, and the Supreme Court of the United States
affirmed that decision.
The writ of mandamus cannot be used to control the judgment and
discretion of an officer in the decision of a a matter which the law gave
him the power and imposed upon him the duty to decide for himself.
In the case of Bates and Guild Co. vs. Payne (194 U. S., 105,) an
application was made for the writ of mandamus to compel Mr. Payne,
then Postmaster-General of the United States, to receive and transmit
through the mails, as matter of the second class, a certain periodical
known as "Masters of Music." Mr. Justice Brown, speaking for the court,
said:
That were the decision of question of fact is committed by
Congress of the judgment and discretion of the head of a
department, his decision thereon is conclusive unless the law
allows an appeal.
With reference to the power of Comptrollers of the Treasury of the United
States, it may be said that they are be express statute authorized to
examine accounts and to certify balances thereon. (U. S. Rev. Stat., sec.
269.) The exercise of this power involves judicial discretion. Judicial
action cannot be subject to any control or direction except by law and
continue to be judicial action. It is independent of all control except by law
or otherwise it cannot be judicial. The authority so given should be
exercised with that untrammeled independence of judgment which
absolutely essential to its proper exercise.
It will be noted that what has been said with reference to the
independence of the Comptroller of the United States Treasury is also
applicable to the Auditor for the Philippine Islands for the reason that
section 6 of Act No. 1792 provides that he shall have like authority as that
conferred by law upon the several auditors of the states of the United
States and the Comptroller of The United States Treasury. We have
hitherto cited authority from the court of the United States. It will be
interesting to know what the authors and law writers have said upon this
question.
Dr. James L. High, one of the clearest American Law writers, in his
valuable work on "Extraordinary Legal Remedies" (3rd ed.) in section
102, after discussing the right of the courts to coerce the performance of
purely ministerial duties, says:
Where, however, auditing officers entrusted by law with the duty
of passing upon and determining the validity of claims against the
state, are vested with powers of discretionary nature as to the
performance of their duties, a different rule from that above stated
prevails. In such cases the fundamental principle denying relief
by mandamus to control the exercise of official discretion applies,
and the officers having exercised their judgment and decided
adversely to a claimant, mandamus will not lie to control their
decision or to compel them to audit and allow a rejected claim.
The remedy, if any, for such a grievance, must be sought at the
hands of the legislature, and not of the courts. (Auditorial
Board vs. Arles, 15 Tex., 72; Auditorial Board vs. Hendrick, 20
Tex., 60; Towle vs. State, 3 Fla., 202; State vs. Doyle, 38 Wis.,
92; People vs. Auditor of Colorado, 2 Colo., 97; State vs. Oliver,
116 Mo., 188; Burton vs. Furman, 115 N.C., 106;
Wailes vs. Smith, 76 Md., 469; State vs. Babcock, 22 Neb., 38;
State vs. Boyd, 36 Neb., 60.) Especially will relief
by mandamus be refused in such cases when the party aggrieved
has a plain and adequate remedy by appeal from the refusal of
the auditing officer to allow his claim. And when a state
comptroller is vested with certain discretionary powers in the
adjusting and settlement of demands against the state, he cannot
be compelled to issue his warrant or liquidate said claim for the
payment of a particular sum, nor will the writ go to compel an
officer to audit a claim unless it is clearly his duty to do so.
(Wailes vs. Smith, 76 Md., 469; Drew vs. Russel, 47 Vt., 250.)
Mr. Spelling, in his work on "Injunctions and Other Extraordinary
Remedies," in a very learned and extensive discussion of the questions
now before us says that mandamus will not lie in any matter requiring the
exercise of official judgment, or resting in the sound discretion of the
person to whom a duty is confided by law, either to control the exercise of
that discretion or to determine the decision which shall be finally given,
but only to set him in motion and compel him to exercise his function
according to some discretion when he has refused or neglected to act at
all. (United States vs. Seaman, 17 How., 225; People vs. Fairchild, 67
N.Y. 334; State vs. Board of Liquidators, 29 La. Ann., 264;
Freeman vs. Selectmen of New Haven, 34 Conn., 406; Rutter vs. State,
38 Ohio, 496; United States vs. Commissioner, 5 Wall., 563;
People vs. Board of Commissioners of Cook County, 176 Ill., 576;
People vs. Maher, 141 N.Y., 330; Boyne vs. Ryan, 100 Cal., 265.) And of
course, where another remedy exists, as under the express statutes of
the Philippine Islands, mandamus will not be granted.
Mr. Merrill, in his work on "Mandamus," in discussing the question, says:
[sec. 32.]
The writ lies to make a body or officer charged with a duty,
involving judgment or discretion, to take action in the matter.
When a subordinate body is vested with power to determine a
question of fact, the duty is judicial and though it can be
compelled by mandamus to determine the fact it can not be
directed to decide in a particular way, however clearly it may be
made to appear what that decision ought to be. A court will be
ordered to proceed to judgment, but will not be instructed to
render a particular judgment. . . . When a decision has been
reached in a matter involving discretion, a writ of mandamus will
not lie to review or correct it, no matter by erroneous it may be.
Mr. Arthur L. Sanborn, judge of the United States District Court for the
western district of Wisconsin, in his article on "Mandamus," published in
volume 26 of the Cyclopedia of Law and Procedure (Cyc.), in discussing
the right of the courts to issue mandamus against an auditor, says:
Where a state auditor in the discharge of his duties has a
discretion to exercise, as for instance, in the allowance or
rejection of a claim against the state, his decision cannot be
controlled by mandamus . . . . Where there is another adequate
remedy, as for instance, where the right of appeal is given to a
claimant whose claim has been disallowed in whole or in part by
the auditor, the writ will not lie. (26 Cyc., 237.)
In speaking of the remedy be mandamus against the comptroller, Mr.
Sanborn says: [26 Cyc., 239.]
But the writ will not lie where its effects would be to interfere with
the comptroller in matters requiring the exercise of judgment and
discretion on his part. Thus, it is held that a state comptroller
cannot be compelled to audit claims against the state in any
particular way or of any particular amount. In the same way,
where the duty of the comptroller to perform the act in question is
not clear, or where there is another adequate remedy at law, the
writ will not lie. (Patty vs. Colgan, 97 Cal., 251;
People vs. Roberts, 163 N. Y., 70.)
Not only has it been the uniform doctrine maintained by the authorities of
the Government of the United States and the law writers that those who
are charged with the responsibility of auditing accounts in favor of and
against the government must be left absolutely free and untrammeled,
but the state governments of the United States as well have established
the same doctrine. In the case of Holiday vs. Henderson (67 Ind., 103)
the court said:
Where a state auditor in the discharge of his duties has a discretion to
exercise, as for instance, in the allowance or rejection of a claim against
the state, his decision cannot be controlled by mandamus, especially
after the auditor has already acted upon the matter. [26 Cyc., 237.]
See also the following cases: (Danley vs. Whitely, 14 Ark., 687;
People vs. Colorado Territorial Auditor, 2 Colo., 97; State vs. Thompson,
41 Mo., 13; State vs. Barnes, 25 Fla., 298 (23 Am. St. Rep., 516):
Wailes vs. Smith, 76 Md., 469; Lewright vs. Love, 95 Tex., 157;
People vs. Adam, 3 Mich., 427; Burton vs. Furman, 115 N.C., 166;
County of San Luis Obispo vs. Gage, 139 Cal., 398; People vs. Roberts,
163 N. Y. 70; Rutgers College vs. Morgan, 71 N. J. L., 663 N. Y. Nolan, 8
Lea, 663; People vs. Attorney-General, 41 Mich., 728;
Thompson vs. Watson, 48 Ohio, 552; Ewbank vs. Turner, 134 N. C., 77;
State Board of Dental Examiners vs. People, 123 Ill., 227;
State vs. Slocum, 34 Neb., 368.)
An examination of the decisions of the Supreme Court of the Philippine
Islands will show that it has followed the general rule above noted with
reference to the issuance of mandamus. The general rule adopted by the
Supreme Court of the Philippine Islands is that mandamus will never be
issued (a) to control discretion, nor (b) when another adequate remedy
exists. (See Knight vs. McMicking, 2 Phil. Rep., 698;
Manotoc vs. McMicking, 10 Phil. Rep., 119; Cruz Herrera vs. McMicking,
14 Phil. Rep., 641; Gonzalez y Salazar vs. The Board of Pharmacy, 20
Phil. Rep., 367.) In this latter case, it was said:
Is it essential to the issuance of a writ of mandamus that the
plaintiff have a clear legal right to the thing demanded and it must
be the imperative duty of the defendant to perform the act
required. It never issues in doubtful cases. While it may not be
necessary that the duty be absolutely express, it is necessary that
it should be clear. The writ will not issue to compel an official to
do anything which it is not his duty to do or which it is his duty not
to do, or to give the applicant anything to which he is not entitled
by law. The writ neither confers power nor imposes duties. It is
simply a command to exercise a power already possessed and to
perform a duty already imposed. (Calvo vs. Gutierrez, 4 Phil.
Rep., 203.)
The writ of mandamus cannot be used to control the discretion of a judge
or to compel him to decide a case or a motion pending before him in a
particular way. He must be left to exercise the discretion which the law
imposes upon him. (Merchant vs. Rosario, 4 Phil. Rep., 316; Macke et
al. vs. Camps, 5 Phil. Rep., 185; Debrunner vs. Jaramillo, 12 Phil. Rep.,
316.)
DISCRETION DEFINED.
Discretion may be defined as "the act or the liberty to decide according to
the principles of justice and one's ideas of what is right and proper under
the circumstances, without wilfullness or favor." (standard Dictionary, ed.
1911.) Mr. Webster defines discretion as the "freedom to act according to
one's own judgment; unrestrained exercised of choice or will."
Mr. Black in his valuable law dictionary says:
Discretion, when applied to public functionaries, means a power
or right conferred upon them by law of acting officially in certain
circumstances, according to the dictates of their own judgment
and conscience, uncontrolled by the judgment or conscience of
others. . . .
Lord Coke defined discretion to be "discernere per legem quid sit
justum."
Mr. Bouvier defines discretion as follows:
That part of the judicial function which decides questions arising
in the trial of a cause, according to the particular circumstances of
each case, and as to which the judgment of the court is
uncontrolled by fixed rules of law. The power exercised by courts
to determine question to which no strict law is applicable but
which, from their nature, and the circumstances of the case, are
controlled by the personal judgment of the court.
Judge Sanborn, in his article on mandamus (26 Cyc., 161) defines
discretion, when applied to public functionaries, as the power or right
conferred upon them by law acting officially under certain circumstances,
according to the dictates of their own judgment or conscience and not
controlled by the judgment or conscience of others. (Farrelly vs. Cole, 60
Kan., 356, 44 L. R. A., 464; State vs. Hultz, 106 Mo., 41; Oneida
Common Pleas vs. People, 18 Wend., 79; Rio Grande County vs. Lewis,
28 Colo., 378.)
MINISTERIAL DUTY DEFINED.
A purely ministerial act, in constradistinction to a discretional act, is one
which an officer or tribunal performs in a given state of facts, in a
prescribed manner, in obedience to the mandate of legal authority,
without regard to or the exercise of his own judgment upon the propriety
of impropriety if the act done. (Ex parte Batesville etc. Ry. Co., 39 Ark.,
82, 85; American Casualty Ins. Co., vs. Fyler, 60 Conn., 448, 25 Am. St.
Rep., 337; Gray vs. State, 72 Ind., 567; Flournoy vs. Jeffersonville, 79
Am. Dec., 468; State vs. Cook, 174 Mo., 100; Marcum vs. Lincoln Co.
etc., 42 W. Va., 263, 36 L. R. A., 296.) A ministerial act is one as to
which nothing is left to the discretion of the person who must perform. It is
a simple, definite duty arising under conditions admitted or proved to exist
and imposed by law. (Sullivan vs. Shanklin, 63 Cal., 247;
Mississippi vs. Johnson, 4 Wall. (U. S.), 475.) It is a precise act
accurately marked out, enjoined upon particular officers for a particular
purpose. (Bassett vs. Atwater vs. 65 Conn., 355, 363, 32 L. R. A., 575.) If
the law imposes a duty upon a public officer and gives him the right to
decide how or when the duty shall be performed, the duty is discretionary
and not ministerial. The duty is ministerial only when the discharge of the
same requires neither the exercise of official discretion nor judgment.
(Henkel vs. Millard, 97 Md., 24.)
ANOTHER ADEQUATE REMEDY DEFINED.
As a general rule it may be said that by the phrase "another adequate
remedy" is meant one specially provided by law. If the remedy is
specifically provided by law, it is presumed to be adequate. We cannot
presume that a remedy expressly provided by the legislative department
of the government is not adequate. If, perchance, and in fact it is not
adequate, it is the duty of the legislative department and not of the judicial
department to correct it.
Under the law the decision of the Auditor is final unless an appeal is
taken within one year. The Auditor is the chief or director of one of the
executive branches of the government. The appeal permitted is to the
head of that branch of the government (first to the Governor-General and
second to the Secretary of War.)
The right to appeal from the decision of an officer or court to which a
particular matter is specifically referred is purely statutory. If the
legislative department of the government by the statute has not given the
right to appeal, such right does not exist. This court said in the case
of Pavon vs. Telephone and Telegraph Co. (9 Phil. Rep., 247) that —
The right to appeal is and always has been statutory, and does
not exist in common law. It is a remedy which the legislature may
in its discretion grant or take away, and it may prescribe in what
cases, and under what circumstances, and from what courts,
appeals may be taken; and unless the statute expressly or by
plain implication provides for an appeal from a judgment of a
court of inferior jurisdiction, none can be taken. (Resolution of
Supreme Court, Nov. 25, 1907; Aragon vs. Araullo, 11 Phil. Rep.
7; Sullivan vs. Haug, 82 Mich., 548, 555.)
Under the law in cases like the present, the aggrieved party has the right
to appeal. He did not take advantage of that right, nor has he exhausted
the ordinary remedy afforded by him by express law. He is not entitled to
this extraordinary remedy until he has at least exhausted the ordinary
remedies afforded him by law.
When a plain, adequate and speedy remedy is afforded by and within the
executive department of the government, the courts will not interfere until
at least that remedy has been exhausted. (Jao Igco vs. Shuster, 10 Phil.
Rep., 448; Ekiu vs. U. S., 142 U. S. 651; U. S. vs. Sing Tuck, 194 U. S.
161; U. S. vs. Ju Toy, 198 U. S., 253; Ciu Yow vs. U. S., 28 Sup. Ct.
Rep., 201.) The administrative remedies afforded by law must first be
exhausted before resort can be had to the courts, especially when the
administrative remedies are by law exclusive and final. Some matters and
some questions are by law delegated entirely and absolutely to the
discretion of particular branches of the executive departments of the
government. When the law confers exclusive and final jurisdiction upon
the executive departments of the government to dispose of particular
questions, their judgments or the judgment of that particular department
are no more reviewable by the courts than the final judgment or decisions
of the courts are subject to be reviewed and modified by them.
Our attention has been called to what appears to be a typographical error
in the wording of section 222 of Act No. 190. That section reads in part as
follows:
When the complaint in an action in a Court of First Instance
alleges that any inferior tribunal, corporation, board, or person
unlawfully neglects the performance of an act which the law
specially enjoins as a duty resulting from an office, trust, or
station . . . and the court, on trial, finds the allegations of the
complaint to be true, it may, if there is no other plain, speedy and
adequate remedy in the ordinary courts of law, . . . .
It is asserted that the phrase "courts of law" should read "course of law."
Many of the provisions of said Act No. 190 were copied verbatim from the
Code of Civil Procedure of California. Section 222 of Act No. 190 was
taken from section 1085 of the California Code of Civil Procedure. The
section of the California Code reads "course of law," instead of "courts of
law." We believe that a mistake or error has been made in the printing of
said section. We believe that it was the intention of the legislative
department of the government to follow exactly the provision of the
California Code and that they intended to use the phrase "course of law"
and not "courts of law." It will be noted in section 226, the section relating
to the writ of prohibition, the legislature used the phrase "course of law."
An examination of the Spanish translation of said section (222) more
clearly indicates what the legislative department of the government
intended. In spanish the other remedy is not limited to the ordinary
"courts of law." We are permitted under Act No. 63 as amended by Act
No. 1788 to refer to the Spanish text, for the purpose of explaining the
English text. Act No. 1788 provides:
In the construction of all Acts or laws which may be enacted by
the Philippine Legislature, the English text shall govern, except
that in obvious cases of ambiguity, omission, or mistake the
Spanish text may be consulted to explain the English text.
We cannot believe that the legislature intended to limit the jurisdiction of
this court in mandamus to the cases where there was no other adequate
and speedy remedy in the ordinary courts of law. It is our duty, therefore,
to give the statute a sensible construction; such as will effectuate the
legislative intention and, if possible, avoid an injustice or an absurd
conclusion (Lau Ow Bew vs. U. S., 144 U. S., 47, 59). Clerical errors or
misprints, which, if uncorrected, would render the statute unmeaning or
nonsensical or would defeat or impair its intended operation, will not
vitiate the act; they will be corrected by the court and the statute read as
amended, provided the true meaning is obvious, and the real meaning of
the legislature is apparent of the face of the whole enactment. (Black on
Interpretation of Laws, p. 77; Lancaster, vs. Frey, 128 Pa., 593;
Lancaster County vs. City of Lancaster, 160 Pa., 411.)
Since writing the foregoing we have received a very recent (March 11,
1912) decision of the Supreme Court of the United States, upon the
question which we have been discussing. Again the doctrine announced
in the case of Decatur vs. Paulding (14 Peters, 497) has been confirmed.
In this decision (U. S. ex rel. Ness vs. Fisher, United States Supreme
Court's Advance Sheets, No. 10, p. 356 [March 11, 1912], the question
was whether mandamus would lie against the Secretary of the Interior,
for the purpose of controlling his decisions after he had rejected the
relator's claim or application.
The supreme court, speaking through Mr. Justice Van Devanter, said:
So, at the outset we are confronted with the question, not
whether the decision of the Secretary was right or wrong, but
whether a decision of that officer, made in the discharge of a duty
imposed by law, and involving the exercise of judgment and
discretion, may be reviewed by mandamus and he be compelled
to retract it, and to give effect to another not his own, and not
having his approval. The question is not new, but has been often
considered by this court, and uniformly answered in the negative.
(Decatur vs. Paulding, 14 Pet., 497, 515 10 L. ed., 559, 568;
United States ex rel. Tucker vs. Seaman, 17 How., 225, 230, 15
L. ed., 62 Litchfield vs. Register (Litchfield vs. Richards) 9 wall.,
575, 19 L. ed., 681 United States vs. Schruz, 102 U. S., 378, 26
L. ed., 167; United States ex rel. Dunlap vs. Black, 128 U. S., 40,
48, 32 L. ed., 354, 357, 9 Sup. Ct. Rep., 12; United States ex rel.
Riveside Oil Co. vs. Hitchcock, 190 U. S. 316, 324, 47 L. ed.
1074, 1078, 23 Sup. Ct. Rep., 698.) Original discussion being
foreclosed by these cases, we will merely quote from two of them
to illustrate the reasoning upon which they proceed. In the
Decatur case, Decatur vs. Paulding [supra], it was held
that mandamus could not be awarded to compel the head of one
of the executive departments to allow a claim under one
construction of a resolution of Congress, which he had disallowed
under another construction, the court saying: "The duty required
by the resolution was to be performed by him as the head of one
of the executive departments of the government, in the ordinary
discharge of his official duties. In general, such duties, whether
imposed by Act of Congress or by resolution, are not mere
ministerial duties. The head of an executive department of the
government, in the administration of the various and importance
concerns of his office, is continually required to exercise judgment
and discretion. He must exercise his judgment in expounding the
laws and resolutions of Congress, under which he is from time to
time required to act. . . . If a suit should come before this court
which involved the construction of any of these laws, the court
certainly would not be bound to adopt the construction given by
the head of a department. And if they supposed his construction
to be wrong, they would, of course, so pronounce their judgment.
But their judgment upon the construction of a law must be given
in a case in which they have jurisdiction, and in which it is their
duty to interpret the Act of Congress in order to ascertain the
rights of the parties in the cause before them. The court could not
entertain an appeal from the decision of one of the Secretaries,
nor revise his judgment in any case where the law authorized him
to exercise discretion or judgment. Nor can it by mandamus act
directly upon the officer, and guide and control his judgment of
discretion on the matters committed to his care, in the ordinary
discharge of his official duties. . . . The interference of the courts
with the performance of the ordinary duties of the executive
departments of the government would be productive of nothing
but mischief, and we are quite satisfied that such a power was
never intended to be given to them." And in the Riverside Oil Co.
case (U. S. ex rel. Riverside Oil Co. 190 U. S., 316) where it was
sought by mandamus to compel the Secretary of the Interior to
depart from a decision of his to the effect that a forest reserve
lieu-land selection must be accompanied by an affidavit that the
selected land was non-mineral in character and unoccupied, it
was held that his judgment and discretion could not be thus
controlled, it being said: "Congress has constituted the Land
Department, under the supervision and control of the Secretary of
the Interior, a special tribunal with judicial functions, to which is
confided the execution of the laws which regulate the purchase,
After a full and careful consideration of the facts and the law applicable to
selling, and care and disposition of the public lands. . . . Whether
the same, our conclusions may be stated as follows:
he decided right or wrong is not the question. Having jurisdiction
to decide at all, he had necessarily jurisdiction, and it was his
duty, to decide as he thought the law was, and the courts have
no power whatever under those circumstances to review his
determination by mandamus or injunction. The court has no
general supervisory to control their decisions upon questions
within their jurisdiction. If this writ were granted we would require
the Secretary of the Interior to repudiate and disaffirm a decision
which he regarded it his duty to make in the exercise of that
judgment which is reposed in him by law, and we should require
him to come to a determination upon the issues involved directly
opposite to that which he had reached, and which the law
conferred upon him the jurisdiction to make. Mandamus has
never been regarded as the proper writ to control the judgment
and discretion of an officer as to the decision of a matter which
the law gave him the power and imposed upon him the duty to
decide for himself. The writ never can be used as a substitute for
a writ of error. Nor does the effect that no writ of error will lie in
such case as this, by which to review the judgment of the
Secretary, furnish any foundation for the claim
that mandamus may therefore be awarded. The responsibility, as
well as the power, rests with the Secretary, uncontrolled by the
courts.
The relator seems to believed that Roberts vs. United States (176
U. S. 221; 44 L. ed., 443; 20 Sup. Ct. Rep., 376) and
Garfield vs. United States (211 U. S. 249; 53 L. ed., 168; 29 Sup.
Ct. Rep., 62) in some way qualify the rule so stated; but this is a
mistaken belief. Both cases expressly recognized that rule, and
neither discloses and purpose to qualify it. In the former the duty
directed to be performed was declared to be "at once plain,
imperative, and entirely ministerial. And in the latter, the writ was
awarded to compel the respondent and unwarrantably had
caused to be made upon a public record, and which beclouded
the relator's right to an Indian allotment.
We conclude that the decision of the respondent in the present
case was not arbitrary or merely ministerial, but made in the
exercise of judgment and discretion conferred by law, and not
controllable by mandamus, and therefore that the Court of
Appeals rightfully directed that the petition be dismissed.
(a) That the courts will take jurisdiction of a cause against the auditor for
the Philippine Islands, in a proper case, to compel action on his part,
when by reasons of unnecessary delays in taking any action at all,
persons have been deprived of a right and have no other adequate and
speedy remedy in the ordinary cause of law.
(b) That the right to allow or disallow a claim against the Government of
the Philippine Islands or any of its branches is, by law, within the
discretion of the Auditor.
(c) That the remedy, by appeal, given under Act No. 1792, to the
aggrieved party to the Governor-General and Secretary of War is another
remedy and is speedy and adequate and exclusive.
(d) That when the final decision of a question is by law left to the
executive branch of the Government, the courts will not interfere until the
remedy in that branch has been exhausted, and not always then.
We are of the opinion that the first ground of the demurrer should be
overruled and that the second should be sustained; and for the reason
that the relator has not amended his petition within the time heretofore
prescribed by this court, the same is hereby dismissed with costs. So
ordered.
Arellano, C.J., Torres and Mapa, JJ., concur.
Carson, J., dissents.
Separate Opinions
TRENT, J., dissenting:
I dissent. The importance of the questions involved in this case is
recognized by all. They go to the very foundation of government. The
personal liberty of a citizen is at stake. I therefore feel constrained to set
forth at some length my reasons for dissenting.
The respondent's demurrer is based upon the following grounds:
1 That the court has no jurisdiction to issue mandamus to the
Auditor for the Philippine Islands.
2 That the complaint does not state facts sufficient to constitute a
cause of action.
I assert that the following propositions are true and rest upon principle
and authority:
1. Whether or not the writ of mandamus will issue is not to be
determined by the nature of the office of the person to whom
directed, but upon the nature if the duty sought to enforced. There
is but one exception to this rule (in so far as civil offices and
employees are concerned and this opinion deals with these
officers only) in this jurisdiction.
2. The Auditor for the Philippine Islands is an officer to whom, on
legal principles, the writ of mandamus may be directed.
3. Mandamus will lie to control the judgment and discretion of an
officer in the decision of the matter as to which the law gives him
the power and imposes upon him the duty to decide, when the
officer has grossly abused such discretion or openly
misinterpreted by law.
4. If there be left to the respondent any discretion, whether or not
he should issued the clearance, it falls within the third proposition,
and can be controlled by mandamus.
5. The remedy by appeal provided for in Act No. 1792 is not
another plain, speedy, and adequate remedy.
6. This court has committed a grave and serious error in
amending the provisions of Section 222, Act No. 190, so as to
read "in the ordinary course of law."
In the considerations of these proposition, it is well to bear in mind the
following provisions of law, to wit: section 222 of Act No. 190, and section
1 of Act No. 1605.
Section 22 of Act No. 190 reads:
 When the complaint in an action in a Court of First Instance
alleges that any inferior tribunal, corporation, board, or person
unlawfully neglects the performance of an act which the law
specially enjoins as a duty resulting from an office, trust, or
station, or unlawfully excludes the plaintiff from the use and
enjoyment of a right or office to which he is entitled and from
which he is unlawfully precluded by such inferior tribunal,
corporation, board, or person, and the court, on trial, finds the
allegations of the complaint to be true, it may, if there is no other
plain, speedy, and adequate remedy in the ordinary courts of law,
render a judgment granting a peremptory order against the
defendant, commanding him, immediately after the receipt of
such order, or at some other special time, to do the act required
to be done to protect the rights of the plaintiff.
Section 1 of Act No. 1605 provides:
No bonded officer of bonded employee of the Insular
Government, or of any provincial or municipal government in the
Philippine Islands, or of the city of Manila, whether in the actual
service of such government or separated therefrom, shall leave or
attempt to leave the Philippine Islands without first securing a
certificate from the Insular Auditor showing that his accounts with
the government of which he is or was such bonded officer or
bonded employee have been finally settled by said auditor. Every
such officer or employee violating any of the provisions of this Act
shall, on conviction thereof, be punished by imprisonment for not
exceeding six months, or by a fine of not more than one thousand
pesos, or both in the discretion of the court.
Section 515 of Act No. 190 gives this Supreme Court concurrent
jurisdiction with Courts of First Instance in mandamus proceedings.
In determining whether or not the writ of mandamus should issue, the
court must be governed by the nature of the duty sought to be enforced
and not by the nature of office held by the respondent.
(Marbury vs. Madison, 1 Cranch, 137.) But it is said that this court, in the
case of Severino vs. Governor-General) 16 Phil. Rep., 366), held
otherwise. This is true, and the rule, to this extent, has been modified in
this jurisdiction. But political necessity and public policy demanded this
modification. There is nothing growing out of the official character of the
respondent in the case at bar which exempts him from or places him
beyond the jurisdiction of the court. He was appointed Auditor for the
Philippine Islands by the Secretary of War, with the concurrence of the
Governor-General and the approval of the Philippine Commission. The
Bureau of Audits, of which he is the chief, in so far as it is under any
direction in the Philippine Islands, comes under the executive control or
supervision of the Governor-General. The duties of public officers are of
two kinds: (1) those of a political or legislative character in the discharge
of which their discretion is uncontrollable by mandamus; (2) those
administrative, judicial, and quasi-judicial duties imposed by law. No one
will claim that the duties of the respondent belong to the first class. His
duties, under the statutes, are administrative, and, to some extent, quasi-
judicial, only. I am not unaware of the fact that the Government of the
Philippine Islands is divided into three separate and coordinate
departments: the legislative, the executive, and the judicial; that each
department operates as independently of the other as the same
departments do in the United States, and that the respondent is an
executive officer. This being true, it is said that inasmuch as each
department has the right to judge of the laws for itself and as each officer
is only responsible for an abuse or usurpation in the mode pointed out in
the law, it necessarily follows that the respondent must be supreme within
the scope of his powers and not subject to control by the courts for the
manner in which he performs or fails to perform his legal duties. This
argument is founded on theory, rather than on reality. There is no
express provision in the Organic Act, nor in any other statute, exempting
the respondent, as Chief of the Bureau of Audits, from being sued in any
of the courts of the Philippine Islands, or in any action coming within the
jurisdiction of any particular court; upon contract or upon tort, quo
warranto, habeas corpus, mandamus, or injunction; or from being liable
to any process or writ, properly issued, by any court, such a subpoenas,
summons, and other writs of process. If he is exempt from all kinds of
suits in the courts and from all kinds of process issued by the courts, it
must be because of some hidden or occult implications of the laws or
statutes or from inherent and insuperable barriers found in the structure
of the government itself, and not from the express provisions of the
statutes.
As I have said, the question as to whether or not the courts of the
Philippine Islands may control any of the acts of the Governor-General
has been decided in the negative. The question, however, whether the
courts of this country may control any of the acts of the Auditor should, in
my opinion, upon well founded legal principles, be decided in the
affirmative. If it be decided (and this court, for all practical purposes has
so held — this point to be examined later) that the Auditor, because he is
chief of the Bureau of Audits, may, for that reason, be allowed to enjoy
absolute immunity from all judicial process, even when, as in the given
instance, the personal liberty of a citizen is at stake, then, why cannot the
same exemption from judicial process be set up by any one of the officers
of the executive department? Upon this theory there can be but one
answer to this question.
The duty of the Auditor (the respondent in this case) shall be to
examine, audit and settle all accounts pertaining to the revenues
and receipts from whatever source of the Insular Government and
of the City of Manila, including trust funds and funds derived from
bond issues; and to audit, in accordance with law and
administrative regulations, all expenditures of funds or property
pertaining to or held in trust by the Insular Government and the
city of Manila. (Act No. 1792, sec. 2.)
The jurisdiction of the Audit over accounts, whether of funds or
property, and all vouchers and records pertaining thereto, shall be
exclusive . . . .
The decisions of the Auditor shall be final and conclusive
upon the executive branches of the Government, except that
appeal therefrom may be taken by the party aggrieved or the
head of the Department concerned, within one year, in he manner
hereinafter prescribed. (Id., sec. 6)
Section 9 of Act No. 1792 authorizes the Auditor to summon witnesses,
administer oaths, and to take evidence in certain cases, and by section
50 of the same Act the Auditor may, with the written consent of the
Governor-General, mitigate, remit, remove, compromise, release, or
discharge any liability, in whole or in part, to the Insular Government, a
provincial or a municipal government, in any matter before him, when in
his judgment the interests of the Government require it, provided
however, that no liability in excess of two thousand pesos shall be so
mitigated, remitted, or compromised. By authority contained in section 29
of Act, the Auditor, on account on fraud, collusion, error in calculation, or
newly discovered material evidence, or when, in his judgment, the
interests of the Government may seem to require it, is authorized within
three years after original settlement, to reopen such settlement, and after
written notice to the person interested and after a reasonable time for the
reply or appearance of such person, to certify thereon a new balance.
The foregoing are all of the provisions of law touching the powers and
duties of the respondent which are necessary to be considered in this
case.
The conclusions of the court are stated in four paragraphs. In paragraph
(a) it is stated that the courts will take jurisdiction against the Auditor for
the Philippine Islands in a proper case to compel action on his part when
by reason of unnecessary delays in taking any action at all persons have
been deprived of a right and have no other adequate and speedy remedy
in the ordinary course of law. It is here held that the court will compel the
Auditor to act under certain circumstances when the injured party has no
other adequate and speedy remedy. In paragraph (c) the court holds that
the appeal provided for in Act No. 1792 is a speedy, adequate,
and exclusive remedy. Under this holding, if the Auditor fails to act at all,
the courts will compel him to go forward, but not to decide the question in
any specific manner. If he denies the request for a clearance presented
by any person, the only remedy that person has is appeal to the
Secretary of War through the Governor-General. He cannot, under this
holding, obtain any relief whatever in any of the courts of the Philippine
Islands. If such a decision of the Auditor is sustained by the Secretary of
War, this court intimates in paragraph (d) of its conclusions that it might
review the actions of the Auditor and the Secretary. But in the body of the
opinion it is stated that the decision of the Auditor upon all accounts
pertaining to the revenues and receipts, from whatever source, of every
governmental entity within the Philippine Islands is final and
conclusive upon all parties, unless an appeal is taken within one year to
the Secretary of War through the Governor-General. It is also held that
the decision of the Secretary of War upon such appeal is final and
conclusive. After having decided that the decision of the Auditor and the
Secretary of War upon all questions touching the revenues of the country
and the allowance or disallowance of claims against the Government, is
final and conclusive against all parties, the court says:
When the law confers exclusive and final jurisdiction upon the
executive department of the Government to dispose of particular
questions, their judgments or the judgment of that particular
department are no more reviewable by the courts than the final
judgment or decision of the courts are subject to be reviewed and
modified by them.
No one at any time has ever intimated that the judgments or decisions of
the courts are reviewable by any of the executive departments.
The result is that this court has decided: (1) that in the case at bar, as
well as in all other cases, the Auditor, before he is required to issue a
certificate of clearance, must examine, audit, and settle the accounts of
the interested person; (2) that in reaching a decision upon these matters
the Auditor must necessarily and does use judgment and discretion; (3)
that such decisions by the Auditor are final and conclusive upon all
parties, unless an appeal be taken as provided in Act No. 1792; and (4)
that the decision of the Secretary of War upon such appeal is final and
conclusive upon all parties. Or, in other words, mandamus will never lie to
compel the Auditor to issue a certificate of clearance to any one. The
court cites in support of this holding a long array of authorities. Before
proceeding to inquire into the soundness of theses holdings, it is well to
carefully examine the allegations in relator's petition, bearing in mind that
the questions in the case have been decided upon respondent's
demurrer and not upon the merits after trial. It is necessary to here
examine briefly the elementary rules of pleading touching demurrers. In
the case of Alzua et al., vs. Johnson (21 Phil. Rep., 308), this court said:
While it is sometimes loosely stated that a demurrer admits the
truth of all the allegations of fact set out in the complaint, the rule
thus broadly stated has many important and well recognized
limitations and restrictions. A more accurate statement of the rule
is that a demurrer admits the truth of all material and relevant
facts which are well pleaded. It will readily be seen that the
italicized portion of the rule as thus stated modifies the looser and
broader statement of the rule to a marked degree. Without
stopping to discuss the reasons for the various rules of pleading
set out in the following paragraph, we lay them down here, relying
upon the reasoning and authority of the cases cited in support of
each and all of them.
A demurrer admits only such matter of fact as are sufficiently
pleaded (Com. Dig. Pleader (A 5); 4 Ia; 63; 14 Ga., 8; 9 Brab.,
297; Ark. 282; 6 Wash., 315; 7 Misc. Rep., 1); a demurrer does
not admit the truth of mere epithets charging fraud; nor
allegations of legal conclusions (144 U. S., 75); nor an erroneous
statement of law (97 Ala., 491). The admission of the truth of
material and relevant facts well pleaded does not extend to
render a demurrer an admission of inferences or conclusions
drawn therefrom, even if alleged in the pleading; nor mere
inferences or conclusions from facts not stated; nor conclusions
of law; nor matters of evidence; nor surplusage and irrelevant
matter. Furthermore, it is settled that the general rule touching
admissions by demurrer does not apply where the court may take
judicial notice that the facts alleged are not true; nor does it apply
to legally impossible facts; nor to facts which appear unfounded
by a record incorporated in the pleading, or by a document
referred to; nor to general averments contradicted by more
specific averments. So, also, the truth of scandalous matter,
inserted merely to insult the opposing party, is not admitted. (In
support of these propositions see many scores of case cited in 31
Cyc., 333, 334, 335, 336, and 337, and 6 Enc. Pl. and Pr., 334,
335, 336, 337, and 338.) It has been deemed proper to set out
these general propositions laid down by the courts of last resort in
the United States touching the limitations on the general rules as
to admissions by demurrer, because in this jurisdiction, wherein a
new system of procedure has been but lately introduced, the
cases thus far decided have not very exhaustively considered the
limitations on the rule; and for a clear understanding of this
portion of our opinion, it is necessary that these limitations should
be kept clearly in mind. But it is proper here to observe that most
of these propositions are themselves subject to certain
restrictions and limitations in accordance with the varying nature
of the infinite variety of conditions to which they are applicable.
That a demurrer admits the truth of all material and relevant allegations of
fact which are well pleaded is settled in this jurisdiction. It is not
necessary to look elsewhere for authority to support this rule. This rule
applies as well to mandamus proceedings as it does to any other case.
(United States vs. County of Clarck, 95 U. S., 769, 24 L. ed., 545; Ex
parte Newman, 81 U. S. 152, 20 L. ed., 877.) So no one will deny that
respondent, by demurring to the petition, admitted as true all of the
material allegations contained therein. Now, what are the material
allegations? In the majority opinion the court says:
It is believed that all of the material allegations of the petition
which is the relator intended to make, eliminating all purely
evidential and immaterial allegations, may be fairly states as
follows, to wit:
First, that the relator had been for a period of four years, the
superintended of the Iwahig penal colony.
Second, that the relator has rendered an account for all property
and funds of the Government which have come into his
possession.
Third, that it is the legal duty of the respondent as Auditor for
Philippine Islands to issue an auditor's certificate (clearance) to
any employee or agent of the Government who has left the
service, when the records of the office of the Auditor show that
the accounts of said employee or agent are balanced and that
 said employee or agent has properly rendered an account for all
government property and funds which have come into his
possession during the time of said employment.
This third statement is purely a conclusion of law, and cane very well be
eliminated.
It is believed that all of the material allegations of the petition
which the relator intended to make . . . may be fairly stated as
follows:
The majority of this court here solemnly assert that they believe
that all material allegations which the relator intended to make are: (1)
that he had been for four years superintendent of the Iwahig Penal
Colony; and (2) that he rendered an account for all property and funds of
the Government which have come into his possession. After reading this
petition, which is copied in the majority opinion, I ask, upon what grounds
does this court base this belief? Why does the court say it is believed "all
of the material allegations which the relator intended to make?" It is not
stated that the relator did not make other material allegations, but that he
did not intend to do so. All will admit that there are other material
allegations in the petition, but this court believes that this relator did not
intend to make them. The strongest proof obtainable in the world to show
that the relator did intend to make them these other material allegations is
the fact that he did make them, and that they are material. In all the
history of jurisprudence which I have yet had an opportunity to examine, I
have been unable to find another adjudicated case where the highest
court in the land, or any other court, disregarded strong, clear, and
positive material allegations in a complaint or petition and substituted
therefor its (the courts) belief that the plaintiff or relator did not intend to
make such allegations. Now, what are these other allegations, and are
they material? The relator, in paragraph 3 of his petition, states positively
that the legal records of the office of the Auditor of the Philippine Islands
demonstrate and show that his accounts are balanced and that he has
properly accounted for all government property and funds which have
come into his possession during the time he was an employee of the
Government. Here the relator not only alleges that he has properly
accounted for all government property and funds, but that his accounts
are balanced and that the records on the respondent's office show these
facts. Then, if the respondent's records show that the relator's accounts
have been balanced, it is necessarily follows that the respondent has
balanced said accounts. Who can say that these allegations are not
material to the issues involved in this case? They are the very foundation
upon which the relator bases his right to a certificate of clearance, the
propeller of his ship. Take them away and substitute thereof a belief and
the relator must drift hopelessly upon the high seas of uncertainty. The
respondent, by having demurred to the petition, admits that theses
allegations are true. Again, the court says:
Is the mere rendition of accounts of government property and
funds by an employee all that is necessary to entitle such
employee to his clearance? Is the Auditor, who is responsible for
the proper disposition of government property and funds, obliged
to accept a mere paper balance? Is the Auditor not to be given an
opportunity to count the cash (funds) as well as to see that the
property of the Government actually exist which had been in the
possession or under the control of such employee? Is the Auditor
not to be given an opportunity to make an actual inspection for
the purpose of satisfying his own mind that the paper balance
conforms with the actual facts? Experience has taught auditors as
well as business men generally that mere paper balances are not
always reliable. The actual funds and property are not always
visible in such balances.
Why talk about mere paper accounts, an opportunity to count funds and
see property and the experience of auditors and business men, when the
respondent admits that the relator's accounts have been examined,
audited, and balanced, and that the relator has properly accounted for all
government funds and property which have come into his possession?
These matters might come up on a hearing on the merits, but they have
no place in the consideration of this case at the present time.
The relator further alleges that his accounts up to March 11, 1911, were
"fully audited and balanced and closed; and said audit has not been
revoked or reopened," and that on that date he was issued a clearance
by the Auditor, and that "covering the period from March 11, 1911, the
date of said clearance, . . . up to and including December 31st, 1911, the
date of the effective acceptance of relator's resignation, relator has
accounted for all property and funds of the Government which have come
into possession; and it is not even claimed by the "Insular Auditor" that he
has not done so." Here the relator again alleges in substance that his
accounts have been balanced that he has accounted for all government
funds and property for which he was responsible; that he owes the
Government nothing: that the Auditor does not even claim that these
allegations are not true. Under the pleadings as they now stand, the
respondent comes into this court and admits that these allegations are
true. This court does not say that the relator has not made the
allegations, nor that they are immaterial, nor that the respondent has not
admitted that they are true, but the court does say that "it believed" that
the relator never "intended to make" them. Again, according to the
allegations in the petition, which the respondent admits to be true, the
reason why the respondent refuses to issue a certificate of clearance to
the relator is on account of "probale civil suit which might be filed by one
Fernandez against the Government." Upon this point the court says:
In fact the relator alleged that the respondent had already acted
and had denied his claim (see paragraph 8 of the petition) and
gave what seems to be a good reason thereof.
Here the court makes a little change in its "belief". Here it finds another
material allegation and believes that the relator intended to make it. The
principal ground, according to the pleadings, upon which the respondent
based his decision denying relator's request for a certificate of clearance
was this probable civil suit which one Fernandez might file against the
Government. This court says that this "seems to be a good reason." The
court does not give any reason why it reached the conclusion that this
probable civil suit was a good reason for the denial of the relator's
request for a certificate of clearance. This probable suit is not mentioned
anywhere else in the opinion; but I take it, from reading the whole
decision, that the foundation for this holding of the court rests upon the
proposition that the respondent, in reaching his conclusion upon this
point, had to use judgment and discretion. Is this the kind of judgment
and discretion which will defeat the relator's right to a writ of mandamus?
In answering this question, it must be constantly borne in mind that the
personal liberty of the relator is involved. He cannot leave the Philippine
Islands to go to his home in the United States. He, for all intents and
purposes, is a prisoner and must remain so. On the one side, we have a
probable civil suit which might be brought against the Government, and
on the other, the personal liberty of a citizen, whose home is in the United
States. When the Auditor holds that a probable civil suit against the
Government is a good and sufficient reason for denying the relator's
request for a certificate of clearance and this court solemnly approves
such a holding, and as a consequence, the relator remains a prisoner, is
it not beginning to appear that the great and sacred principle contained in
the fifth section of the Act of Congress of July 1, 1902, is a "chain of
sand," a myth, a delusion, instead of a reality?
The relator further alleges that the respondent caused to be instituted
against him three charges for malversation of public funds; that the
Governor-General ordered the prosecution of these cases discontinued,
and that they have been eliminated (dismissed). This court, in the
majority opinion says, nothing of these allegations, for the reason, I
assume, that, the respondent having admitted that these criminal charges
had already been dismissed, the court did not think it necessary to
discuss them. In this I fully agree. If these criminal charges for the
malversation of public funds had not been dismissed before the filling of
the petition in the case under consideration, they might have furnished
some grounds for the justification of the action of the respondent in
declining to issue the certificate of clearance; but as they were dismissed,
neither this court nor counsel for respondent now consider them of any
importance. And again, the relator alleges that without the certificate of
clearance from respondent, he cannot collect from the Government the
amounts due him for accrued leave, salary, and transportation. This court
does not directly and specifically discuss the relator's right to have these
amounts paid him. But it does discuss at great length the question of the
powers and duties of the respondent as Auditor to pass upon all accounts
wherein the revenues of the Government are involved, and cites a
number of authorities in support of its position in regard to these matters.
I must, however, assume that the court had in mind at this time these
claims of the relator against the Government, and I insist that as a legal
proposition all of that part of the majority opinion which deals with or
refers in any manner to claims in favor of or against the Government
must rest upon the relator's right to receive the amounts due him for
accrued leave, salary, and transportation. Upon what else can that part of
the opinion be based, when we remember that the respondent, as I have
so often said, admits, by reason of having demurred to the petition, that
the relator has properly accounted for all Government funds and property
which have come into his possession, and that he does not know owe the
Government anything whatsoever?
Counsel for the respondent lays down the proposition that
"mandamus will not lie where its primary and underlying motive is a suit
against the Government of the Philippine Islands without its consent;" or,
in other words, that the primal motive in instituting this action is not so
much to secure a clearance as to enable the relator to receive his
accrued leave, salary, and transportation; and if this court should order
the respondent to issue a certificate of clearance to the relator, it would
be sanctioning a suit not brought directly against an official personally, of
even officially, but against the Government of the Philippine Islands,
without its consent, as it would necessarily follows that these claims of
the relator for accrued leave, salary, and transportation would have to be
paid.
In the final analysis, the whole case, up to this point, is narrowed down to
one question only; that is, Can the courts control by mandamus the
judgment and the discretion which were exercised by the respondent
when he denied the relator's request for a certificate of clearance upon
the grounds (1) that a probable suit might be brought by one Fernandez
against the Government, and (2) that the Government, in all probability,
would have to pay the claims of the relator for leave, salary, and
transportation? I shall now attempt to demonstrate that this question is,
upon sound legal principles, to be answered in the affirmative, and in so
doing, I shall disregard as inapplicable all the authorities cited in the
majority opinion which tend to support the general proposition that the
decision of the Auditor upon matters pertaining to the settlement of
bonded officers' accounts is final and conclusive, because the accounts
of the relator as superintendent of the Iwahig Penal colony have been,
according to the pleadings, balanced, leaving the relator owing the
Government nothing.
That one Fernandez cannot sue the Government in a civil action without
its consent is well known by everyone. Then, why should the respondent
be allowed to hold up the claims of the relator for accrued leave, salary,
and transportation on this ground? In deciding to do so, what kind of
judgment and discretion did he use?
After at least two years' continuous, faithful, and satisfactory
service, the Governor-General or proper head of Department
shall, subject to the necessities of the public service, and upon
proper application therefor, grant each regularly and permanently
appointed officer or employee in the civil service, Insular or
provincial, or of the city of Manila, except as hereinafter provided,
accrued leave of absence with full pay, inclusive of Sundays and
of days declared public holidays by law or executive order, for
each year of service in accordance with the following schedule: . .
. (Sec. 23 (a), Act No. 1698)
If an officer or employees elects to postpone the taking of any or
all of the leave to which he is entitle under this section, such
leave may accumulate and if his salary changes he shall receive
the same amount of leave and pay as if he had taken the leave
while receiving the salary at which it accrued; Provided, however,
That after January first, nineteen hundred and five, no person
shall at any time have to his credit more than the accrued leave
allowed for five years' service. (Idem (b), idem.)
An officer or employee separated from the service for cause, or
who commits an act which requires his separation from the
service, shall not be granted leave or any of the other privileges
provided in this section and in the following sections.
(Idem (h), idem.)
Irrespective of leave granted, a regularly appointed officer or
employee who has rendered continuous, faithful, and satisfactory
service for three years or more after arrival in the Philippine
Islands, shall, upon his retirement from the service, be allowed
half salary for thirty days in addition to full salary for the period
which may be granted him as leave of absence under the
provisions of this Act; and if appointed prior to January twelfth,
nineteen hundred and four, he shall also be furnished
transportation from Manila to San Francisco, or transportation or
equal cost to the Government by any other route: Provided, That
such transportation must be used within six months after
retirement from the service. (Sec. 29 (d), idem.)
The accrued leave, salary, and transportation of the relator as
superintended of the Penal colony were fixed under express authority of
law, and the appropriation act provides the funds for the payment of the
same. Again I ask, what kind of judgment and discretion did the
respondent use in deciding that these claims should not be paid?
According to the doctrine laid down by this court the respondent must
necessarily and did use judgment and discretion in deciding all of these
questions, and, therefore, his decision in these matters can not reviewed
by the courts nor controlled by mandamus.
The writ of mandamus is a judicial writ and part of the recognized course
of legal proceedings and is a writ of right. Two things must concur to
authorize a writ of mandamus: the officer to whom it is directed must be
one to whom, on legal principles, such writ can be issued; and the person
applying for it must be without any other plain, speedy, and adequate
remedy. The writ does not issue as a matter of course. It will issue only
when there is a clear legal right sought to be enforced. It will not issue to
enforce a doubtful right. The writ lies to enforce individual rights arising
under the laws of the Philippine Islands. The grounds
for mandamus have gradually been extended. (Ex parte Virginia, 100 U.
S., 313, 25 L. ed., 667.)
This court, in the case of Severino vs. Governor-General (16 Phil. Rep.,
366), said:
It is admitted and universally recognized that mandamus and
injunction will never lie to enforce or restrict a duty which is
 discretionary. This proposition is elemental and it is unnecessary
to cite authorities in support of the same.
I believe this is to be sound law, but it cannot be said that every act is
within the legal or official discretion of the officer performing it. In my
opinion, "discretion," when applied to officers of the Government, means
sound discretion, guided by reason. It must not be arbitrary, vague, and
fanciful, but legal and regular. And when an officer's acts do not come
within this rule, the courts have the power to and should intervene. Is this
proposition founded upon principle and authority?
I shall first examine the decision of the Supreme Court of the Philippine
Islands touching the power of this court to review the acts or decisions of
inferior boards and tribunals by mandamus or otherwise. In the majority
opinion it is stated:
Judicial action cannot be subject to any control or direction,
except by law, or by an appeal. It is independent of all control
except by law.
xxx      xxx      xxx
The writ of mandamus cannot be used to control the judgment
and discretion of an officer in the decision of a matter which the
law gave him the power and imposed upon him the duty to decide
for himself.
xxx      xxx      xxx
The general rule adopted by the Supreme Court of the Philippine
Islands is that mandamus will never be issued (a) to control
discretion, nor (b) when another adequate remedy exists.
xxx      xxx      xxx
The writ of mandamus cannot be used to control the discretion of
a judge or to compel to decide a case or a motion pending before
him in a particular way.
If I correctly understand the whole question, I conceive that judicial action
cannot be subject to any control or direction except by law according to
law. My position is that where an officer, board, or tribunal abuses the
discretion conferred by law, this court can review such action, and is
doing it proceeds according to law, and that this has been the constant
holding of this court.
The Collector of Customs for the Philippine Islands is authorized and
does appoint what is known as a Board of Special Inquiry to examine into
the right of aliens to enter this country. This board operates under section
25 of the Act of Congress of March 3, 1903. This section provides that
the decision of any two members of such board shall prevail and be final,
but that either the alien or the dissenting member of said board may
appeal through the Commissioner of Immigration at the port of arrival and
the Commissioner-General of Immigration, to the Secretary of the
Treasury, whose decision shall be final. In this country the appeal lies
through the Collector of Customs to the Secretary of Finance and Justice.
Hence the statute expressly says that the decision of the administrative
officers is final; but this court, following the decisions of the Supreme
Court of the United States, would not hesitate to review and control the
action of these administrative officers wherein it is alleged and shown that
such officers grossly abused the discretion conferred upon them or acted
in open violation of law. (Rafferty vs. Judge of First Instance, 7 Phil. Rep.,
164; Ngo-Ti vs. Shuster, 7 Phil. Rep., 355; Ko Poco vs. McCoy, 10 Phil.
Rep., 442; Juan Co vs. Rafferty, 14 Phil. Rep., 235; Edwards vs. McCoy,
22 Phil. Rep., 598.) Act No. 1792 says that the Auditor shall audit, in
accordance with law and administrative regulations, all expenditures, etc.,
and that his decision upon these matters shall be final and conclusive
upon the executive branches of the Government; but this court says that
such decisions are final and conclusive upon all parties. I understand that
there is a great difference between the two statements. The first includes
the executive branches of the Government only, and the second includes
every branch of the Government. Must the different holdings in reference
to the Special Board of Inquiry and the Auditor rest upon the fact that the
latter is dealing with the revenues of the country? Surely this cannot be a
sound basis when we remember, as in the case at bar, the personal
liberty of a citizen is at stake, and in fact that the citizen is a prisoner and
must, for all intents and purposes, remain so until some means are
devised (which are yet unknown) whereby he may obtain a certificate of
clearance. In the scales on the one side we have a question affecting the
revenues of the Government, and on the other, the personal liberty of a
citizen, with the result that the former outweights the latter. It is the
concurrent testimony of all history that no country ever maintained itself
long in health, happiness and prosperity, where the people felt that their
individual liberty was not safe under the law.
Again, this court does not hesitate to control by mandamus the judgment
and discretion of the Courts of First Instance wherein it is alleged and
shown that such courts have abused the discretion conferred upon them,
or have erroneously interpreted by law, to the prejudice of private rights.
This court will not interfere to modify, control, or inquire into the
exercise of this discretion which is conferred by statute, unless it
be alleged and proven that there has been an abuse or an excess
of authority on the part of the judge. (Calvo vs. Gutierrez, et al., 4
Phil. Rep., 203.)
In the case of Trinidad vs. Sweeney et al. (4 Phil. Rep., 531), the
respondent judge was of the opinion that the petitioner was not entitled to
an appeal in a certain case to the Supreme Court. In reaching this
conclusion the judge had to exercise his judgment. This court held that
upon the facts stated in the complaint the plaintiff was entitled to
prosecute an appeal and overruled the respondent's demurrer.
In the case of Ricamora vs. Judge of First Instance (3 Phil. Rep., 137) the
respondent refused to sign a bill of exceptions upon the ground that he
had not tried the case. This court issued a writ of mandamus directing,
the respondent to sign and allow a bill of exceptions, saying:
Section 143 of the Code of Civil Procedure nowhere states that
the bill of exceptions shall be presented to the judge who tried the
case. It is capable of the construction that the judge referred to is
a judge of the court at the time the bill is presented for signature.
Here this court admitted that section 143 is capable of two constructions:
first, that the bill of exceptions can only be presented to the judge who
tried the case, and second, that it can be presented to the judge presiding
at the time of its presentation. The lower court held that former was the
proper construction, but this court held that the respondent erroneously
interpreted or construed the law and issued the writ.
In the case of Santos et al. vs. Judge of Land Registration (5 Phil. Rep.,
171), the petitioners asked for a writ of mandamus to compel the
respondent to sign and certify a bill of exceptions. The respondent stated
that he would not sign and certify the said bill of exceptions because it
was not presented within the period prescribed by law. This was held to
be an insufficient reason and the writ was issued. (See also the case of
Herrer vs. Herrera, 5 Phil. Rep., 383, and Babasa vs. Judge of First
Instance, 12 Phil. Rep., 766.)
In the case of Requepo vs. Judge of First Instance (21 Phil. Rep., 77)
Requepo instituted a civil suit in the justice of the peace court against one
Rosales to recover the possession of certain parcel of land. Judgment
was rendered in favor of the plaintiff and the defendant attempted to
appeal without filing a bond. The justice of the peace certified the record
to the Court of First Instance, where the cause was placed upon the
docket. A motion was made asking the court to dismiss the appeal upon
the ground that no bond had been filed. The judge denied the motion,
and at the same time directed Rosales to present the required bond
within twenty-four hours. The bond was presented. Plaintiff then made
another motion to dismiss the appeal upon the ground that the bond was
not presented at the proper time. This motion was denied, the judge
holding that according to his interpretation of the law a person appealing
from the judgment of a justice of the peace in cases of his character
could present bond in the Court of First Instance. The plaintiff
brought mandamus proceedings in this court asking that the writ be
issued directing the judge to dismiss the appeal. The writ was granted as
prayed for.
In the case of Government vs. Judge of First Instance, (R. G. No.
7514)1 one Cerredo and another were charged upon sworn complaint
signed by Eugenio Lagrazon, the husband of Cerredo, in the justice of
the peace court with the crime of adultery. Upon completion of the
preliminary investigation the justice of the peace bond the two accused
over to the Court of First Instance, and the cases was regularly docketed
in that court upon a new complain signed and sworn to by the offended
husband. Before the accused were arraigned for trial, the offended
husband filed a motion to dismiss the case on the ground that his wife
had agreed to live with him. This motion was opposed by the fiscal upon
the ground that under the existing law an offended person could not
pardon accused parties in crimes of this character. The court granted the
motion and dismissed the case and denied an appeal from that order to
this Supreme Court. The Government instituted mandamus proceedings
to compel the judge to allow the appeal. It was urged that the judge when
he dismissed the complaint used the discretion vested in him by law and
used his best judgment in the interpretation of the law as to whether or
not he had the power to dismiss the case. But this court granted the writ
and ordered the judge to admit the appeal. Here is a clear case of where
both the judgment and the discretion of the lower court have been
controlled, the first upon the ground that he erroneously interpreted the
law, and the second upon the ground that he had abused his discretion.
There was much conflict in the earlier decisions in the United States as to
whether the writ of mandamus would issue to the higher officers of the
state. There is now, however, very little contention on this point, except
as to its applicability to the chief executive. On this point the courts are,
as we said in the case of Severino vs. Governor-General, supra, divided,
and the leading case of Marbury vs. Madison, supra, is cited in support of
both sides of the controversy. The province of the court is to decide on
the right of individuals; not to inquire how the executive or executive
officers perform duties which are in their nature political. The courts have
no jurisdiction to decide whether a foreign country has become an
independent state (Kennett vs. Chambers, 14 How., 38, 14 L. ed., 316)
nor to deal with the admission of a state into the Union
(Luther vs. Borden, 7 How., 1, 12 L. ed., 581); nor the restoration of a
state lately in rebellion (Georgia vs. Stanton, 6 Wall., 50, 18 L. ed., 721).
All these questions are for the political or legislative departments and the
courts cannot settle them. The decisions of such officers in these matters
are final. But where the acts of executive officers involve the
interpretation of the constitution or the laws they are, under certain
circumstances, subject to review by the courts. It is often difficult to define
in exact terms what the duties of public officers are. In such cases that
which is incapable of exact definition is left to the officer's discretion.
Probably as strong a statement of the refusal of the courts to interfere
with the exercise of the duties imposed upon public officers as can be
found is stated by the court in Riverside Oil Co. vs. Hitchcock (190 U. S.,
316, 47 L. ed., 1074), and which is quoted with approval in the recent
case of United States ex rel. Ness vs. Fisher, decided March 11, 1912,
and reported opinion rests largely upon these two cases. In the Riverside
Oil case, one C.W. Clark was the owner in the fee of certain lands in the
state of Oregon, covered by a patent from the United States to his
grantors. The land was situated in a forest reserve in that state. On the
28th of October, 1898, Clark executed a deed which conveyed in fee and
relinquished to the United States said land. Certain other public lands
were thereupon selected by Clark which had been duly surveyed and
classified as agricultural lands prior to the selection, and appeared on the
records of the Land Department as such and were subject to disposition
under the Act of June 4, 1897. The Land Department required Clark to
publish a notice of his selection for a period of sixty days. Clark complied
with these requirements and on February 6, 1900, before the sixty days
had expired, the Kern Oil Company filed a protest against the selection.
On January 2, 1900, Clark conveyed a deed the selected land to the
Riverside Oil Company. This company then filed a motion to dismiss the
protest. A hearing was had before the Commissioner of the General Land
Office, and his decision in the matter was that the title of the selector did
not pass until approval by the Commissioner, and that the land included
in the selection was yet open to exploration under the mining laws, and if,
at the date of the decision, the land is shown to be mineral, it defeats the
selection. The land was not passed to patent. This decision was
sustained by the commissioner's superiors. The Riverside Oil Company
filed a petition asking for a writ of mandamus to compel the Secretary of
the Interior to vacate the order made by him rejecting the selection of
Clark and to order such selection passed to patent. The Secretary of the
Interior decided, after hearing all the parties, that the land selected was
not "vacant land." The petitioner urged that the Secretary erred in holding
that a discovery of mineral upon the land selected, subsequent to the
selection and before approval by the commissioner, would defeat such
selection. This holding was not only a reasonable interpretation of the
law, but it appears to be a correct interpretation. So this case is clearly
distinguishable from that of Ballinger vs. United States ex rel. Frost (216
U. S., 240, 54 L. ed., 464), hereinafter cited, and cannot affect the holding
of the court in the latter case.
In the case of United States ex rel. Ness vs. Fisher, supra, Mary S. Ness,
being desirous of purchasing some land under the Timber and Stone Act,
filed the proper land office a written application in which she stated that
the land described in her petition was unfit for cultivation, valuable chiefly
for is timber, uninhabited, and contained no mining or other
improvements. She swore to this petition. In the investigation it developed
that the petitioner had never been upon the land described in her petition
and that she made the above averments upon information and belief. The
local land officer dismissed the petition. The Commissioner of the
General Land Office and the Secretary of the Interior affirmed this
decision. Mary S. Ness then filed a petition asking for a writ
of mandamus to compel the Secretary of the Interior to accept, as
conforming to the Timber and Stone Act, her application. The writ was
denied. The local land officer, the Commissioner, and the Secretary of
the Interior all held that the averments of the petition filed in the local land
office that the land which relator sought to purchase was unfit for
cultivation, valuable chiefly for its timber, uninhabited, and contained no
mining or other improvements, must be made upon personal examination
and inspection and not upon information and belief. This had been the
repeated construction of the law by the Secretary of the Interior. The
Supreme Court said:
That the Secretary's decision rejecting the relator's application
was not arbitrary or capricious but was based upon a construction
of section 2 which was at least a possible one, had long prevailed
in the Land Department, had been approved in the United
States vs. Wood (70 Fed., 485), and Hoover vs. Sailing (102
Fed., 716), and has since been sustained by the Court of Appeals
in the present case.
While the Supreme Court dis not specifically and directly decide that this
was the proper interpretation of the law, yet it decide that it was not an
arbitrary or capricious interpretation. So this case is likewise
distinguishable from the Ballinger case and leaves the doctrine laid down
in that case in full force and effect.
The rule that courts will not interfere where a public officer exercised
discretion vested in him by law, was laid down in the early period of
American jurisprudence. At that time there was present in the minds of all
men the fear and the abhorrence of a government in which the ultimate
power might become vested in one particular branch. Having just
escaped from such a government at a great sacrifice, the American
people determined to so divide the powers of government that it would be
impossible for any one man or set of men to control the whole system. In
keeping with this policy, the courts early refused to attempt to review or
revise the acts of the other departments. It was reasoned that if the
courts were the final reviewing power in those cases where another
branch of the government was vested with discretion, it would in effect
make that branch the mere passive servant of the judiciary. The fallacy of
this reasoning has long since been demonstrated. Instead of regarding
the three departments of government as independent, they are now
considered as coordinate, and the whole system is regarded as one of
checks and balances. Cases very quickly arose in which officers were
disregarding a reasonable construction of the law, and in fact abusing the
discretionary power conferred upon them, to the injury of individual rights.
In an endeavor to adhere to the rule as first laid down and yet reach the
offenders, it was necessary to classify the duties sought to be enforced
as ministerial. The fiction still prevails in many jurisdictions that courts will
not review or control such discretion, while at the same time its arbitrary
and abusive exercise is constantly being corrected and controlled by the
courts under the guise of a ministerial duty. This applies only to those
cases where the officer has acted, and not to the cases where he refuses
to act, for the rule is still true, that where the law vests discretion in an
officer and he refuses to exercise it, the only function of the court by a
writ of mandamus is to "set him in motion." The Supreme Court of the
United States has consistently adhered to the ministerial-discretionary
classification of duties of public officers. But it is said that the courts very
often denominate a discretionary duty as a ministerial duty in order to
take jurisdiction in those cases where a public officer has acted in a
manner not in accordance with the intent of the law.
In the United States ex rel. Steinmetz vs. Allen (192 U.S., 541, 48 L. ed.,
555) (1904) a petition for mandamus was filed in the Supreme Court of
the District of Columbia to compel the Commissioner of Patents to require
the primary examiner to forward an appeal, prayed by the petitioner, to
the Board of examiners in chief, to review the ruling of the primary
examiner requiring petitioner to cancel certain of his claims in his
application for a patent. The court dismissed the petition and its action
was affirmed by the court of appeals. The case then went to the Supreme
Court of the United State, where the decisions of the two lower courts
were reversed and an order issued directing the granting of
the mandamus. In this case the Supreme Court said in part:
In Bennet vs. Fowler (8 Wall., 445, 19 L. ed., 431), a discretion in
the Patent Office was recognized. The question arose upon the
validity of two reissued patents for improvements, which "had
been embraced in one, in the original patent." The court said:
"It may be that if the improvements set forth in both
specifications had been incorporated into one patent, the
patentee taking care to protect himself as to all his
improvements by proper and several claims, it would have
been sufficient. It is difficult, perhaps impossible, to lay
down any general rule by which to determine when a
given invention or improvements shall be embraced in
one, two, or more patents. Some discretion must
necessarily be left on this subject to the head of the
Patent Office. It is often a nice and perplexing question."
Some discretion is not an unlimited discretion, and if the
discretion be not unlimited it is reviewable. In other words, the
statute gives the right to join inventions in one application in
cases where the inventions are related, and it cannot be denied
by a hard and fixed rule which prevents such a joinder in all
cases. Such a rule is not the exercise of discretion; it is not a
determination not to hear. No inventor can reach the point of
invoking the discretion of the Patent Office. He is notified in
advance that he will not be heard, no matter what he might be
able to show. His right is denied, therefore, not regulated. Such is
the necessary effect of rule 41, as amended.
Without that rule the action of the Patent Office can be
accommodated to the character of inventions, and discretion can
be exercised, and when exercised, we may say in passing except
in case of clear abuse, the courts will not review it.
Can it be said that the Commissioner of Patents did not exercise his
discretion in the case? The Commissioner of Patents is authorized to
establish such rules and regulations consistent with law as may be
necessary for the proper conduct of his office. (12 Stat. 200, sec. 19.)
The case in question hinged on whether a certain rule of the Patent
Office was consistent with law. In establishing this rule and adhering to it,
the Commissioner certainly had to exercise discretion. But it was a
discretion which could be and in fact was controlled by the court. Again,
suppose that instead of committing his determination to deal with such
cases in the way he did to paper, and embodying the same in the printed
rules governing applications for patents, the Commissioner had made a
mental reservation to that effect, and that when this case came up he had
acted in exactly the same manner and from exactly the same motive
(which was his belief that such a ruling was correct), by what means
would the court have arrived at its conclusion that the respondent had not
exercised his discretion?
In Ballinger vs. Frost (216 U.S., 240, 54 L. ed., 464) (1909), the Secretary
of the Interior sought to dispossess a member of an Indian tribe of certain
land which relator had acquired in accordance with prescribed regulations
of the Department of the Interior. Section 24 of the Act of July 1, 1902,
reads as follows:
SEC. 24. Exclusive jurisdiction is hereby conferred upon the
Commission to the Five Civilized Tribes to determine, under the
direction of the Secretary of the Interior, all matters relating to the
allotment of land.
In this case the court said:
We have no disposition to minimize the authority or control of the
Secretary of the Interior, and the court should be reluctant to
interfere with his action. But as said by Mr. Justice Field
in Cornelius vs. Kessel (128 U.S., 456, 461):
"The power of supervision and correction is not an
unlimited or arbitrary power. It can be exerted only when
the entry was made upon false testimony, or without
authority of law. It cannot be exercised as to deprive any
person of land lawfully entered and paid for. By such entry
and payment the purchaser secures a vested interest in
the property and a right to a patent therefor, and can no
more be deprived of it by order of the commissioner than
he can be deprived by such order of any other lawfully
acquired property. Any attempted deprivation in that way
of such interest will be corrected whenever the matter is
presented so that the judiciary can act upon it."
xxx      xxx      xxx
Whenever, in pursuance of the legislation of Congress, rights
have become vested, it becomes the duty of the courts to see
that those rights are not disturbed by any action of executive
officer, even the Secretary of the Interior, the head of department.
However laudable may be the motives of the Secretary, he, as all
others, is bound by the provisions of congressional legislation. It
must be borne in mind that this allotment provided by Congress
contemplated a distribution among the Choctaw and Chickasaw
Indians of the lands that belonged to them in common. They are
the principal beneficiaries, but their titles to the lands they
selected should be protected against the efforts of outsiders to
secure them. While men settling on townsites were not the
principal beneficiaries. Congress, it is true, authorized townsites,
and the town of Mill Creek was established in compliance with the
statute. It further provided for an enlargement of any townsite
upon the recommendation of the Commission to the Five Civilized
Tribes. That recommendation was made in respect to the town
Mill Creek, but disapproved by the Secretary of the Interior.
Thereafter the relator selected the land in controversy, a tract of
forty acres, on which were her improvements. Notice was given
as required, and the time in which contest could be made — nine
months — elapsed. Thereupon, as provided by the statute, the
title of the allotted to the land selected became fixed and
absolute, and the chief authorities of the Choctaw and Chickasaw
nations executed to her a patent, as required, of the land
selected. The fact that there many have been persons on the land
is immaterial. They were given nine months to contest the right of
the applicant. They failed to make contest, and her rights became
fixed. Thereafter the Secretary of the Interior had nothing but the
ministerial duty of seeing that a patent was duly executed and
delivered.
It was held that in this case that under the circumstances the Secretary
had nothing to do but to issue the patent. Yet, in arriving at this
conclusion the court was forced to consider the merits of the case and to
determine (as the Secretary had done) whether relator was entitled to it.
The Secretary erred in the application of the law to the facts before him
so that the Supreme Court was compelled to issue the writ in order to
protect the private interests of the Indian. The court held that the
Secretary of the Interior had nothing but the "ministerial duty" of seeing
that a patent was duly executed and delivered. Suppose the Secretary
had decided that the patent should issue and the "squatters" as they
might be called had applied for the writ to compel the Secretary to cancel
the patent. What view would then have been taken of this ministerial
duty? Why not say (as it is a fact) that the discretion exercised by the
Secretary of the Interior was not a sound legal discretion, guided by
reason?
In Garfiled vs. United States ex rel. Goldsby (211 U.S., 249, 52 L. ed.,
168) (1908), (followed by the Court of Claims in Whitmire vs. United
States and Cherokee Nation, 46 Ct. Cl., 227) (1911), the writ was issued
to the Secretary of the Interior to compel him to reinstate on the roll of a
certain tribe of Indians entitled to participate in the division of certain
lands, the name of one Goldsby who had first been regularly placed on
the roll and then stricken off. By Act of March 3, 1901, (31 Stat. at L.,
1077, Chap. 832), it was provided that the rolls made by the Commission
to the five Civilized Tribes, as approved by the Secretary of the Interior
should be final. But the court said:
We appreciate fully the purpose of Congress in numerous case of
legislation to confer authority upon the Secretary of the Interior to
administer upon Indian lands, and previous decisions of this court
have shown its refusal to sanction a judgment interfering with the
Secretary where he acts within the powers conferred by law. But,
as has been affirmed by this court in former decisions, there is no
place in our constitutional system for the exercise of arbitrary
power, and if the Secretary has exceeded the authority conferred
upon him by law, then there is power in the courts to restore the
status of the parties aggrieved by such unwarranted action.
In Ex parte Bradley (7 Wall., 364, 377, 19 L. ed., 214) the court says:
For we agree that this writ does not lie to control the judicial
discretion of the judge or court; and hence, where the act
complained of rested in the exercise of this discretion, the remedy
fails.
Mandamus was issued, however, the court concluding in the following
language:
But the proceeding is admitted to be the recognized remedy when
the case us outside of the exercise of this discretion, and is one
of irregularity, or against law, or of flagrant injustice, or without
jurisdiction.
Mr. Chief Justice Marshall, in Ex parte Burr (9 Wheat., 529, 630, 6 L. ed.,
152) speaking of the review of the proceedings of a lower court by the
writ of mandamus said:
The court is not inclined to interpose, unless it were in a case
where the conduct of the Circuit of District Court was irregular, or
was flagrantly improper.
In Baird vs. Supervisors (138 N.Y., 95) it appeared that the board of
supervisors of Kings County, in which the city of Brooklyn is located, had
divided the county into 18 assembly districts as provided by the law, but
in such a manner that some of the districts contained over three times as
many inhabitants as others. It further appeared that the Board was vested
with discretion in defining these districts, and that the constitution as
amended had omitted a clause providing for an equal population in each
district. There was no specific law to control the supervisors in their
decision. In disposing of the questions presented, the court said:
The proper discharge of the duty of division by the board implies
considerable discretion in the formation of the various districts. The
discretion exercised must be an honest and a fair discretion, arising out
of the circumstances, of the case, and reasonably affecting the exercise
of the power of the equal division. Before examining any division, it would
be a prima facie presumption that the division actually made in any case
was a proper one, and a full compliance with the duty imposed upon the
board which made it. This would be in accordance with the presumption
in favor of the due and proper discharge of official duty. Nor would the
mere fact that the districts were to some extent unequal in population
necessarily rebut this presumption. The necessity of considering the
other facts provided for by section and already alluded to, might
reasonably account for many and even somewhat large aberrations from
the initial point of equal representation. While it is impossible, in the
nature of the case, to accurately describe and closely limit the amount of
deviation from an equal representation that the practical working of the
Constitution may in this respect permit, it is on the other hand sometimes
quite possible to say of a particular example that it does or does not
violate the constitutional mandate.
 We have no trouble whatever in detecting the difference between
noon and midnight, but the exact line of separation between the
dusk of the evening and the darkness of advancing might is not
so easily drawn.
A question of a somewhat similar nature was before us in
People ex rel. Carter vs. Rice (cited supra). [135 N.Y., 473, 494.]
The question there related to the amount of discretion reposed in
the legislature in the creation of senate districts and in the
appropriating of members of assembly among the several
counties. It was there stated that it was not intended to intimate
by the decision then made that in no case could the action of the
legislature be reviewed by the courts, and that cases might easily
be imagined where the action of the legislature would be so gross
a violation of the Constitution that it was plain that instrument had
been entirely lost sight of or intentional disregard of its commands
both in the letter and in the spirit had been indulged in. If there
were an abuse of discretion so as to clearly show an open and
intended violation of the Constitution, we held in that case that the
courts might interfere.
xxx      xxx      xxx
We do not intend by this decision to hold that every trifling
deviation from equality of population would justify or warrant an
application to a court of redress. Such, we think, is not the
meaning of the provision. It must be a grave, palpable an
unreasonable deviation from the standard, so that when the facts
are presented argument would not be necessary to convince a
fair man that very great and wholly unnecessary inequality has
been intentionally provided for.
In People ex rel. Schau vs. McWilliams (185 N.Y. (1906), 92) the writ was
asked for to compel the board of civil service to change a classification it
had made of a particular position. The court said:
It does not at all follow that the action of the civil service
commission is not in any case subject to judicial control; but that
such control is a limited and qualified one to be exercised
by mandamus. If the position is clearly one properly subject to
competitive examination, the commissioners may be compelled to
so classify it. On the other hand, if the position be by the statute
or from its nature except from examination and the action of the
commission be palpably illegal, the commission may be
compelled to strike the position from the competitive or
examination class, though in such case redress
by mandamus would often be unnecessary, as a valid
appointment could be made notwithstanding the classification.
But where the position is one, as to the proper mode of filling
which there is fair and reasonable ground for difference of opinion
among intelligent and conscientious officials, the action of the
commission should stand, even though the courts may differ from
the commission as to the wisdom of the classification. The
present case is of this character. We ought not to interfere with
the determination of the commissioners that it should be filed by
competition; and that if they had decided that the position should
be filed without competition, equally ought we to refrain from
interference. The position lies in that field where the action of the
commission should be final.
The writ was accordingly denied.
In People ex rel. Lodes vs. Dept. of Health (189 N.Y. (1907), 187) the
board of health had revoked a license to sell milk, without either giving a
hearing or notice to the licensee. The court said:
The power of the members of the board of health being
administrative merely, they can issue or revoke permits to sell
milk in the exercise of their best judgment, upon or without notice,
based upon such information as they may obtain through their
own agencies, and their action is not subject to review either by
appeal or by certiorari. (Child vs. Bemus, 17 R.I., 230; State ex
rel. Cont. Ins. Co. vs. Doyle, 40 Wis., 220; Wallace vs. Mayor,
etc. of Reno, 63 L. R. A., 337.) If, however, their action is
arbitrary, tyrannical and unreasonable, or is based upon false
information, the relator may have a remedy through mandamus to
right the wrong which he has suffered.
In People ex rel. E.C.T. Club vs. State Racing Com. (190 N.Y. (1907), 31)
respondents had refused to grant relator a license to conduct races on
the ground that the racing season had been divided between the six other
clubs and that to grant relator a license would interfere with the racing
upon other tracks. By an order of the special term, the writ prayed for was
denied. An appeal was taken to the Appellate Division, where the special
term was reversed, and order for the writ issued. On appeal to the Court
of Appeals, this latter order was affirmed. The court said (per curiam):
 Though we do not concur in the doctrine of the majority of the
learned Appellate Division that the commission has no
discretionary powers over the grant of a license and that "its
judgment related purely to the sufficiency of the acts constituting
the corporation, and not to considerations of public or private
policy," we are still of opinion that the order of the Appellate
Division should be affirmed. While the general rule is
that mandamus will not lie to compel the performance of a power
the exercise of which lies in the discretion of the officer against
whom the writ is sought, to that rule there is the well-recognized
exception that the action of the officer must not be capricious or
arbitrary, and if such be the character of the reasons for refusing
to act the writ will lie. (Merrill on Mandamus, secs. 38-41;
People ex rel. Cecil vs. Bellevue Hospital Medical College, 60
Hun., 107; affd. on op. below, 128 N.Y., 621; People ex rel.
Schau vs. McWilliams, 185 N.Y., 92; Illinois State Board of Dental
Examiners vs. People ex rel. Cooper, 123 Ill., 227.) . . . Though
we assume that the appellants have acted in entire good faith and
in the belief that they possessed the authority they have sought to
exercise, we must nevertheless hold that in point of law their
reasons for rejecting the application of the relator were capricious
and arbitrary.
In Huidekoper vs. Hadley (177 Fed. (1910,) 1) the court said:
The rule is well settled and full recognized by us that when
discretion is conferred upon public agents or officers their acts in
the lawful exercise of that discretion cannot be controlled
by mandamus. The rule is also well settled that, although the
exercise of discretion will not be controlled by mandamus, yet the
writ will lie to compel the person or the body in whom the
discretion is lodged to proceed to its exercise. In view of this
rules, we are of opinion that the discretion which cannot be
controlled by mandamus is that discretion, and that only, which
the law has vested in the person or body to be exercised. If the
law has pointed out how or in what way the discretion shall be
exercised, it is obviously not the exercise of the discretion
imposed by law to proceed in any other way. To so proceed
would be contrary to the law and would be the exercise of
arbitrary power rather than discretion. To decline or to refuse to
proceed according to law or in the way pointed out by law is in
our opinion equivalent to not proceeding at all. In other words, the
discretion which will withstand review by the courts must be
exercised under law and not contrary to law.
In Dental Examiners vs. The People ex rel. Cooper (123 Ill., 227) quoted
in People ex rel. E.C.T. Club vs. State Racing Com., supra, the court
said:
In the People ex rel. Sheppard vs. State Board of Dental
Examiners (110 Ill., 180), we held that the act did not specifically
define what was a reputable college, and that it was left to the
discretion and judgment of the board to determine what was a
reputable college. In that case the mandamus was refused on the
general ground, that the writ will not lie to compel the
performance of acts or duties, which necessarily call for the
exercise of judgment and discretion on the part of the officer or
body at whose hands their performance is required.
But if a discretionary power is exercised with manifest injustice,
the courts are not precluded from commanding its due exercise.
They will interfere, where it is clearly shown that the discretion is
abused. Such abuse of discretion will be controlled
by mandamus. A public officer or inferior tribunal may be guilty of
so gross an abuse of discretion or such an evasion of positive
duty, as to amount to a virtual refusal to perform the duty
enjoined, or to act at all in contemplation of law; in such a
case mandamus will afford a remedy. (Tapping on Mandamus, 66
and 19; Wood on Mandamus, 64; Comr's of the poor vs. Lynah, 2
McCord (S.C.), 170; The people vs. Perry, 13 Barb., 206;
Arberry vs. Beavers, 6 Texas, 457.)
In City of Atlanta vs. Wright (119 Ga. (1903), 207) an attempt is made to
reconcile the supervisory control by the judiciary with the statement that
"courts will not control the exercise of discretion."
It has been generally, if not universally, held, that the writ
(mandamus) will not lie to control the discretion of an officer
vested with judicial powers, or powers which, in their nature, call
for the exercise of judgment in their performance. The writ "may
set him in motion," but it will not further control or interfere with his
action, nor will it direct him to act in any specific manner." (High's
Ext. Leg. Rem. (3d ed.), sec. 34.) "To do so would be to
substitute the judgment and discretion of the court issuing
the mandamus for that of the court or officer to whom it was
committed by law." (19 Am. and Eng. Enc. L. (2d ed.), 733-4.)
There is but one exception to the rule that the function of the writ
is to set in motion, and not to control the discretion of the officer
to whom it is directed, and that is where the discretion reposed in
 the officer has been grossly abused, or has been arbitrary or
capriciously exercised. In such a case mandamus will lie to
compel the proper exercise of the powers granted. (19 Am. and
Eng. Enc., L. (2d ed.), 737-9.) This exception is more apparent
than real, for such an exercise of power really amounts, in a legal
sense, to no exercise, and the writ may still be said to only set the
officer in motion.
But in California as early as 1888, the court held in Wood vs. Strother (76
Cal., 545, 9 Am. St. Rep., 249) that such a construction was a "misuse of
language."
The argument against the writ is, in substance, that the statute
requires the auditor to examine the proceedings, and satisfy
himself that they are legal, before signing; and that if he has
examined them and become satisfied that they are not legal, the
most that can be said is, the he has committed an error in a
matter confided to his discretion, and that the function of the writ
is not to review such exercise of discretion.
It must be acknowledged that this argument is exceedingly
plausible. There are innumerable cases in which it has been laid
down that mandamus cannot issue to control discretion. The rule
— which is undoubtedly correct when properly understood — has
been expressed in various forms. It has been repeatedly said that
the writ cannot perform the functions of a writ of error; that it
cannot issue to revise judicial action, but can only compel the
performance of ministerial functions; and that it will issue to
compel a tribunal to act in some way, but not in particular way.
These formulas undoubtedly express a truth, but they express it
in an inaccurate and misleading manner; and by reasoning from
them as if literally and in all cases true, courts have sometimes
been led into error, and have frequently been forced to call acts
"ministerial" which are plainly not so. An examination of the
authorities will demonstrate the inaccuracy of the above phrases.
xxx      xxx      xxx
So it is well settled that a mandamus may issue to compel a
judge to sign a bill of exceptions (California citations). Whether
the party has a right to have a bill, or whatever, it is in time, are
certainly judicial questions, and they are to be decided in the first
instance by the judge, who, if he decides them correctly, will not
be compelled by the writ to take back his decision.
(Clark vs. Crane, 57 Cal., 629.) Is anything gained by calling such
decision a ministerial act?
In this California case the writ was issued to compel the auditor to
countersign a street-assessment warrant under a certain act. The act
provided that the auditor should countersign the warrant, "who before
countersigning it, shall examine the contract, the steps taken previous
thereto, and the record of assessments, and must be satisfied that the
proceedings have been legal and fair." The auditor claimed that he was
not "satisfied that the proceedings upon which the same is based are or
have been legal or fair." The court decided adversely to the auditor and
issued the writ.
In Com. ex rel. vs. Philadelphia (176 Pa. (1896), 588) the petition prayed
for a mandamus to compel the controller of the city of Philadelphia to sign
warrants for the payment of $10,000 for Century Dictionaries alleges to
have been contracted for by the board of education. The respondent
alleged first, that having exercised his discretion in refusing to sign the
warrants he was to subject to the order or direction of the court. And
second, (1) that it appeared that no contract had been made for the
purchase of the books as required by a certain act, (2) that the binding of
the books was such as to render them entirely unserviceable for school
use, and (3) that it was learned a very large commission had been
allowed to the agent who sold the books. The court directed the issuance
of the writ unless the respondent showed further and legal grounds why it
should not and remarked:
The answer appears to be based on a very exaggerated and
erroneous idea of the controller's powers and authority, and the
claim that he is "not subject to the order of direction of the court'
is not to be tolerated. The duties of the controller as was held in
Com. vs. George (148 PA., 463), are partly ministerial and partly
discretionary, and while the courts will not review his discretion
exercised in a proper case, yet he is not above the law, and his
discretion is not arbitrary but legal. When therefore he is called
upon by the courts that the facts must be made to appear
sufficiently to show that they bring the case within his discretion,
and that it was exercised in obedience to law. On this subject the
courts are the final authority, and their jurisdiction cannot be
ousted by simply putting forth the assertion of discretionary power
without showing that the matter was properly within such
discretion.
In the late case of State ex rel. Mauldin vs. Matthews (81 S.C., 414, 62
S.E. 695, 22 L.R.A. n.s., 735) (1908), the Supreme Court of South
Carolina affirmed its right to supervise the discretion vested in a public
official in the following language:
Whether the courts can control the action of officers or official
boards vested with discretionary power when they refuse to act in
consequence of a conclusion they have reached which is without
any foundation in the facts before them, and therefore, in the
view of the court, capricious or arbitrary, is a question of some
difficulty. But it must be answered in the affirmative, on principle
as well as authority. This was the view indicated not only in
State ex rel. Smith vs. Matthews, supra, and Commissioners of
Poor vs. Lynah (2 McCord, L., 1170), but by Lord Mansfield in
R. vs. Askew (4 Burr., 2186, 16 Eng. Ruling Cases, 760), where
the application was to compel the admission of physician to
practice; and it is in accord with the weight of authority. (Ex
parte Burr., 9 Wheat., 529, 6 L. ed., 152; Ex parte Virginia, 100 U.
S. 339, 25 L. ed., 676; Ex parte Bradley, 7 Wall., 364, 19 L. ed.,
214; Atlanta vs. Wright, 119 Ga. 207, 45 S. E., 994; St. Louis
Meyrose Lamp Mfg. Co., 139 Mo., 560, 61 Am. St. Rep., 474, 41
S. W., 244; Wood vs. Strother, 76 Cal., 545, 9 Am. St. Rep., 249,
18 Pac., 766; Illinois State Dental Examiners vs. People, 123 Ill.,
227, 13 N.E., 201.) The courts should exercise, however, the
utmost circumspection not to substitute their own discretion for
that of the offices or board whose refusal to act is under
consideration, and to interfere by mandamus only when the facts
so clearly show the duty of the officer or board to act that there is
really no room for the exercise of reasonable discretion against
the doing of the act which the court is asked to require performed.
In other words, the courts should interpose only where it clearly
appears that the officer or board refuses to perform official duty,
or so misconceives official power or duty that the purpose of the
law will be defeated.
Where a statute authorized county boards to make allowances for public
purposes "at their discretion" the court said:
The words to "make allowances at their discretion," . . . mean to
make allowances according to law, at their discretion. They do
not mean an arbitrary, uncontrolled, unlimited discretion, contrary
to law, or without authority of law; for where there is no law there
is no act to do, and, therefore, no discretion to be exercised. They
mean a legal discretion, not a personal discretion; for to allow the
board a personal discretion would give them the power to make
law. (Rothrock vs. Carr, 55 Ind., 334.)
Quoting further from City of Atlanta vs. Wright, ubi supra:
It will have been observed that the petition does not complain of
official inaction or inertia. On the contrary, the contention is that
the comptroller-general has acted, but in the wrong manner, and
that the course pursued by him has resulted injuriously to the
petitioner. In other words, the ground relied on for the issuance of
the writ of mandamus is that whatever discretion was vested in
the comptroller-general has been exercised in an arbitrary and
capricious manner, and that the court should step in and direct
him to act as required by law.
The court reviewed the facts, found that the comptroller-general had
erred in his conclusion of law as applicable thereto, and issued the writ.
A similar conclusion was arrived at in State ex rel. Register of
Lands vs. Secretary of State (ex officio auditor) (33 Mo., 293). The
register of lands had performed certain services for which he was not to
be paid at certain rates. The auditor as his reason for refusing to audit the
claim presented by the register, alleged among other things, (1) that the
rate of compensation claimed was not that fixed by law, and (2) that the
work had been improperly done. The court, in reviewing the claim
on mandamus, decided (1) that the rate of compensation claimed was
that fixed by law, and (2) that the quality of the work was not within the
purview of the respondent.
In People vs. Supervisors (73 N.Y., 173) the auditing board had allowed
excess compensation to a county treasurer, and the writ issued
compelling the board to reconsider, revoke, and annul the audit so far as
it allowed the county treasurer compensation in excess of that fixed by
law.
In State ex rel. Davis vs. Dist. Ct., (30 Mont. (1903) 8), it appeared that a
client on becoming insane was indebted to an attorney for fees. The
guardian appointed could not allow the same until authorized to do so by
the court, which the latter refused to do. The Supreme Court reviewed the
action of the lower court, found that the claim was lawful and should be
allowed and issued the writ accordingly.
Other courts have issued the writ for an abuse of discretion:
MISSOURI: State ex rel. Hathaway vs. State Board of Health, 103 Mo.,
22, 15 S.W., 322; State ex rel. Kelleher vs. St. Louis Public Schools, 134
Mo., 296, 35 S.W. 617, 56 Am. St. Rep., 503; State ex inf. Folk vs. Talty,
166 Mo., 529, 66 S.W. 361; State ex rel. vs. Roach, 230 Mo. (1910) 408.
WISCONSIN: State ex rel. vs. Wagner vs. Dahl, 140 Wis., 301: State ex
rel. Fourth National Bank vs. Johnson, 103 Wis. (1899), 591, 51 L. R. A.,
33, 79 N. W. 1081.
UTAH: Taylor vs. Robertson, 16 Utah, 330, 52 Pac., 1, 3.
This court says that:
Mr. Spelling, in his work on Injunctions and Other Extraordinary
Remedies, in a very learned and extensive discussion of the
questions now before us, says, that mandamus will not lie in any
matter requiring the exercise of official judgment or resting in the
sound discretion of a person to whom a duty is confided by law,
either to control the exercise of that discretion or to determine the
decision which shall be finally given.
It will be noted that the court used the words "official judgment" and
"sound discretion."
Mr. Spelling, section 1384 (2nd ed.) says:
While the general proposition is true that mandamus cannot be
employed to control the exercise of discretion, yet it is often used
to correct abuses of discretion when it has been made clearly to
appear that the officer refusing to do the act has either not
exercised his discretion at all, or has willfully chosen to act in
manifest disregard to duty and the legal rights of individuals.
Mr. Spelling here directly supports the views taken by the various
authorities cited by me.
This court also quotes from Mr. Merrill on Mandamus. This same author,
in sections 40 and 41, recognizes the authority of the courts to control the
actions of officers when there is an abuse of discretion. But he says
before the court should interfere the proof must be very clear ad
convincing that such an officer has grossly abused the discretion
conferred upon him.
Again, the court cites and quotes from Mr. Sanborn's article
on mandamus, but the court did not quote the following from Judge
Sanborn's article on mandamus, wherein he says:
An exception to the general rule that discretionary acts will not be
reviewed or controlled exists when the discretion has been
abused, for example mandamus may in a case be granted where
the action has been arbitrary or capricious or from personal
selfish motives, or where it amounts to an evasion of a positive
duty, or there has been a refusal to consider pertinent evidence,
hear the parties when so required, or to entertain any proper
question concerning the exercise of the discretion. Likewise it has
been held that mandamus may issue where discretion has been
exercised on questions not properly within it, or where the action
is based upon reason outside the discretion imposed. (26 Cyc.,
161.)
So this learned author also is in accord with the holdings of the various
courts as above set forth.
Where anything is left to any person to be done according to his
discretion, the law intends it must be done with a sound discretion and
according to law. The discretion conferred upon officers by law is not a
capricious or arbitrary discretion, but an impartial discretion guided and
controlled in its exercise by fixed legal principles. It is not a mental
discretion to be exercised ex gratia, but a legal discretion to be exercised
in conformity with the spirit of the law, and in a manner to subserve and
not to impede or defeat the ends of substantial justice.
As a matter of fact, it is necessary for a public officer to exercise his own
discretion and judgment as to whether a certain state of facts exists, even
in the performance of a so-called ministerial duty.
The duty is ministerial when it is to be performed upon a certain
state of facts, although the officer or tribunal or body must judge
according to their best discretion whether the facts exists, and
whether they should perform the act. Otherwise it is obvious
no mandamus could ever lie in any case. (26 Cyc., 161, note 10.)
If, then, the officer must determine whether a certain state of facts
actually exists before he can perform a "purely ministerial" duty, it would
seen that the only difference between the discretion which he thus
exercises and that conferred upon him by express law is one of degree
and not of kind. In the laws the duties of every officer are outlined as
completely as human skill can do it. Yet, in the nature of things, doubts
often arise as to what is the correct procedure under the laws. A public
officer, on taking office, must necessarily be the first to interpret the laws
relating to his position. When the time arrives for him to perform any one
his duties, he must first act or refuse to act before anyone else can take
jurisdiction. Some of the duties prescribed for him by the laws are so
plain as to practically admit of no argument. These are generally called
ministerial duties. Still, it requires the exercise of personal judgment to
decide on the time, manner, and extent of performance. From these well-
defined duties, which involve the exercise of so little judgment and
discretion on the part of the officer, to those which may be performed in
any one of a number of different ways, and therefore necessarily
requiring a high decree of judgment, sagacity, and prudence in their
performance, is a long step. But where can the line be drawn? The
plainest and best defined duty of an officer requires that he recognize it
as such. He must satisfy himself that the facts of the case combine in
such a way as to require its performance. Such being the case, the
division of his duties into those ministerial (that is, those very plain and
well defined), and those discretionary (that is, those very hard or
impossible to exactly define), serves only to confuse the mind and to
establish a division of his duties which leaves a large share of them open
to profitless dispute. It is much nearer the truth to say that a public officer
exercises his own discretion and judgment in the discharge of all his
duties. He interprets the law affecting him in the exercise of his official
powers and acts according to that interpretation. If a dispute arises as to
whether he has correctly interpreted the law applying to a particular case,
his action is subject to review by the courts, it being their duty to construe
the law. It must not be assumed, however, that a person who is
dissatisfied with the performance of a duty by a public officer will always
obtain relief by mandamus. Nothing could be more impracticable or
foolish than to impose upon the judiciary the task of reviewing every
decision of fact and law made by public officers in the discharge of their
duties. They are presumed to exercise their powers in a legal and
equitable manner. To encourage disgruntled claimants to press their
claims in court would be to virtually transact all the business of the
government in court. Such would be the result if the courts undertook to
review the merits of every controversy settled by the public officers. For
slight errors of judgment on the part of public officers there can be, in the
nature of things, no redress for the individual in the courts. In reviewing
such acts on a petition for mandamus, courts require the relator to prove
his case by much more than a mere preponderance of evidence. The
abuse of official discretion must be manifest. It must be clear that the
officer has acted in an arbitrary and illegal manner. The facts upon which
relator bases his petition must combine in such a way that it will be
evident that the law and equity require that he be granted that for which
he prays.
The majority opinion states that for the courts to compel the Auditor to
allow or disallow a claim against or in favor of the Government would be
to substitute the courts as the accounting officers of the Government.
How many claims, reviewed by the Courts under a method which
requires the claimant to produce such a great preponderance of
evidence, will be allowed against the decision of the Auditor? The Auditor
passes upon thousands of claims every year. If the courts, adhering to
this rule of evidence, were to overrule the Auditor in such a number of
cases as to amount to a substitution, what manner of man would the
Auditor be? Or would overruling his decisions in one instance or twenty
instances out of thousands be a substitution of the courts for the Auditor?
Restricted as the writ of mandamus is by the rules of evidence I have just
stated, the Auditor, or any other public officer, has far more latitude in
guiding his official conduct and performing his official duties than have
the judicial bodies whose decisions are subject to review by an appellate
tribunal. The decisions of lower courts are reviewed in the higher court by
a strict preponderance-of-evidence rule (in civil cases). Nevertheless, can
it be for those lower courts? How many cases, out all of those decided by
the judicial bodies, even with this narrowing of the field of official
discretion, reach the appellate tribunal? I think that the fear that the
courts will ever usurp the prerogatives of a public officer by the writ
of mandamus, issued in proper cases, is groundless.
But it may be argued that in all the cases from which I have quoted above
it was found that the officer, board, or tribunal was acting without
authority and consequently that discretion vested in them by law was
never exercised until set in motion by the writ of mandamus. Upon this
reasoning it follows that when the courts review by mandamus the
conduct of such an officer, whether the duty is declared to be
discretionary or ministerial will depend upon the action the officer has
taken; if the courts decide such act is in harmony with the law under
which his discretion was granted, they will declare the duty to be of a
discretionary character and refuse to interfere; but if they decide that
such act is repugnant to the law, they will point out what is the duty of the
officer under the law and instruct him to act accordingly. The law intends
that the officer shall act with fairness and justice, yet, as I have shown, it
is not every slight injustice resulting from an exercise of such discretion
which the courts will correct. The courts will not interfere where it is
necessary to weigh the evidence and decide on which side a nice
preponderance lies. A strict adherence to such a rule would, however,
require the courts in every case to go into the merits and decide on which
side the preponderance lies, exactly the same as in any ordinary case. In
the meantime, the officer has, presumably, acted in good faith, according
to what he believed to be right and just. Yet if the court decides that there
has been a wide departure from the intent of the law, it must be held that
he acted without discretion. In such case, what did prompt him to act? It
may be true that he acted without the legal discretion which is all the law
can confer upon him. But discretion is no concrete thing to be conferred
or transferred as a piece of land or a commission to office. It is a trait of
character bestowed by nature upon all men in a greater or less degree. If
the law permits an officer to act with discretion, he must necessarily use
that discretion. He can, in the nature of things, use no other. Legal
discretion is, after all, nothing but a man-made standard for measuring
and keeping within bounds the personal discretion of such public officers.
If they fail to make their official acts conform to this standard, they will be
called to account. For political of legislative acts, they are responsible
directly to the people. But if it be administrative and properly within the
jurisdiction of the courts, the courts will provide the remedy. It is, of
course, possible that such an officer might not obey the dictates of his
own discretion and act in accordance with the promptings of corrupt
motives. But in mandamus proceedings there is no legal difference
between acts done in virtute officii and acts done colore officii. Thus, a
board cannot require other credentials for an applicant to practice
medicine than those required by law. (State ex rel. Johnson vs. Lutz, 136
Mo., 633.) (See also State ex rel. City of Chillicothe vs. Gordon, 233 Mo.,
383; Cox vs. Common Council of Jackson, 152 Mich., 630;
Swan vs. Wilderson, 10 Okla., 547, 62 Pac., 422.) In the case mentioned,
as well as in the other cases cited, the board was prompted by only the
most laudable motives. They were attempting to raise the standard of
professional skill required for the practice of medicine and surgery within
the State of Missouri. They read the law in which their powers and duties
were outlined and at a regular and official meeting decided upon requiring
certain qualifications which the court in the mandamus proceedings
decided were plainly not required by the law.
Guided by the doctrine enunciated in the foregoing decisions of the
highest tribunals in the American Union, which are founded upon reason,
justice, and the law, let us now again inquire whether or not the
respondent's decision denying the relator's request for a certificate of
clearance is based upon sound discretion and the law, or whether he
grossly abused the legal discretion conferred upon him and erroneously
interpreted the law in reference to his powers and duties. This decision of
the respondent is based upon the "probable suit which one Fernandez
might bring against the Government" and that if he had issued the
certificate of clearance the Government would have had to pay the relator
the amounts due him accrued leave, salary, and transportation. The
Auditor, after an investigation and having the facts before him, decided
that these were sufficient reasons for him to decline to issue the relator's
clearance. I concede that the strict rules of evidence which govern the
courts of justice do not apply to the respondent. The position of the
Auditor for the Philippine Islands is one of great delicacy difficulty where
there is a suspicion of fraud or dishonesty against the officer. He should
be allowed to consider not evidence, merely, as recognized in the courts,
but suspicions prompted by his own investigation of the officer's
accounts, as well as accusations made by others. But the courts have
often held that the evidence upon which accounting officers have settled
claims in a particular way was insufficient. Thus, in the United
States vs. Dumas (149 U. S., 278, 37 L. ed., 734) the Postmaster-
General, who was authorized by the law to examine and pass upon the
accounts of postmasters, declined to audit the accounts of the defendant
in error, claiming that said defendant had made false returns of business
done. The court in its decision overruling the decision of the Postmaster-
General, quoted the following from United States vs. Barlow (132 U. S.,
271, 280, 33 L. ed., 346, 351), per Mr. Justice Field:
We admit that where matters appertaining to the postal service
are left to the discretion and judgment of the Postmaster-General,
the exercise of that judgment and discretion cannot in general be
interfered with, and the results following defeated. But the very
rule supposes that information upon the matters upon which the
judgment and discretion are invoked is presented to the officer for
consideration, or knowledge respecting them in possessed by
him. He is not a liberty, any more than a private agent, to act
upon mere guesses and surmises, without information or
knowledge on the subject.
Here the rule that the accounting officer must have something tangible
upon which to base his decision is clearly recognized. Fernandez, as I
have said, could not bring a suit against the Government without its
consent. No argument is necessary to support this proposition.
Furthermore, "the transactions which would form the basis of this
probable civil suit fall within the period from September 5, 1909, to
November 17, 1910," and Fernandez had signed vouchers and a warrant
of payment, acknowledging to have received in full from the Government
the amounts claimed by him. The respondent had issued to the relator a
certificate of clearance covering the period from September 5, 1909, to
November 17, 1910. Could the respondent deny the relator's request for
a clearance upon this ground and at the same time exercise that legal or
official discretion conferred upon him by law? Surely, no one can
seriously contend that this could be done, either upon principle or
authority. And more especially, when it is remembered that the decision
of the respondent has the effect of depriving the relator of his liberty. I
think judicial notice should be taken of the peculiar conditions existing in
this country in the matter of bonded officers of the Government. They are
continually leaving the Islands, either on leave of absence or on
separation from the service. They usually have a large amount due from
the Government in the form of accrued leave, salary, and transportation,
which they depend upon to defray their expenses. The effective date of
their resignation or of the commencement of their accrued leave is
generally timed a few days in advance of their actual departure from the
Islands, so that among the last matters they must arrange before leaving
is a clearance from the Auditor. For the Auditor to refuse this clearance
places these officers in a difficult position and subjects them to great
disappointment and more or less pecuniary loss. For these kindred
reasons, such a refusal on the part of the Auditor should not be based
upon frivolous pretexts. It is only justifiable on reasonable grounds. Act
No. 1605 makes it a criminal offense for a bonded officer to leave or
attempt to leave the Islands without a clearance. It is therefore plain that
the Auditor has the power to cause great hardship to all such officers.
This power should be exercised wisely and justly. To assert, as the
majority opinion does, that the Auditor's action cannot be controlled for
any reason in this particular by the courts, is to make that officer the
absolute master of the persons of such officers for an almost indefinite
length of time, or, as the majority of the court hold, for the period of three
years. Think of the position of an officer who has separated himself from
the service and who is anxious to return to his home being held virtually
as a prisoner for the period of three years, awaiting the action of the
Auditor. Can such a state of affairs and Act No. 1605 withstand the great
principle that no one shall be deprived of life, liberty, or property without
due process of law? But it said that if the respondent be compelled to
issue this certificate of clearance the Government will have to pay the
realtor his claims for accrued leave, salary, and transportation, and the
result would be that these proceedings against the Auditor would be a
suit against the Government without its consent. If it is right and just that
these claims should be paid, then who can object? The Government itself
has expressly declared in a solemn act that the relator is entitled to and
shall receive these amounts. The Government has appropriated money
for these purposes. It stands ready and willing to make the payments.
Where the Government, by legislative action, declares that an officer
shall receive fixed amounts for his services, such as salary, accrued
leave, and transportation, and where an appropriation is made by the
legislature setting aside money for these purposes, an action brought
against officers of the Government whose duty it is to countersign
warrants or issue certificates, or to actually pay out this money, is not a
suit against the Government. It is an action against the respondent
officers to compel them to perform a duty imposed upon them by law.
(Rolsten vs. Missouri Fund Commissioners, 120 U. S., 390, 30 L. ed.,
721; Tindal vs. Wesley, 167 U. S., 203, 42 L. ed., 137;
Pennoyer vs. McConnaughy, 140 U. S., 1, 35 L. ed., 363;
Graham vs. Folsom, 200 U.S., 284, 50 L. ed., 464; Taylor vs. Louisville &
N. R. Co., 31 C. C. A., 537, 88 Fed., 350; Huidekoper vs. Hadley, 177
Fed., 1.) Also see a long array of cases cited in 11 Enc. U. S. Sup. Ct.
Rep., 50, note 47.
As has been said, respondent denied relator's request for a clearance
upon the ground that a probable suit might be brought against the
Government by one Fernandez and that if he should issue the certificate
the result would be that the relator would receive the amounts claimed for
accrued leave, salary and transportation. The Auditor had to exercise
some judgment and discretion in reaching this conclusion. According to
his interpretation of the law, it was his duty under these facts to deny the
relator's request. This court says that the Fernandez probable suit
"seems to be a good reason" for the Auditor's refusal, and that in all these
matters relating to claims for or against the Government the Auditor must
and does necessarily exercise judgment and discretion which cannot be
reviewed nor controlled by the courts. If these were the rule in the United
States (it is not, however), there exist well-founded reasons why the rule
should be different in this jurisdiction. Among these is the fact that under
the provisions of Act No. 1605 the officer is held virtually a prisoner
during the pendency of the issuance of his certificate of clearance. There
is no such law, either state or national, in the American Union. If this Act
No. 1605 be held to be constitutional, then the courts must intervene in
those cases where a citizen is deprived of his liberty in this manner. Why
not say, as it is an absolute fact, that the Auditor, no doubt in good faith,
has abused his discretion and erroneously interpreted the law as to his
powers and duties, and that this court, being the highest tribunal in this
country and being clothed with the power to interpret the laws, not only
has the power to intervene, but that it is its sacred and solemn duty to do
so. In the majority opinion are cited a long array of cases in support of the
court's position that the judgment and discretion of the respondent in
these matters cannot be reviewed. I confidently believe, after an
examination of a number of these authorities, that not a single one is
applicable to the admitted facts in this case. On the contrary, it is held by
practically all of the high courts in the United States that the courts will
intervene and control the action of all administrative officers lower than
the Chief Executive, where it clearly appears that such officers have
grossly abused their discretion or erroneously interpreted the laws, and
the injured party has no other plain, speedy, and adequate remedy. This,
at least, is the modern holding of every court of last resort, the decisions
of which I have had an opportunity to examine.
In this jurisdiction, we have an express provision of law (Sec. 222 of Act
No. 190), authorizing the courts to issue the writ of mandamus to any
inferior tribunal, corporation, board, or person. This court has said that it
will not interfere with the acts of the Governor-General. This holding, as I
have said, was based upon political necessity and public policy. But the
respondent has no political duties to perform. He is not a political officer,
and the reasons upon which the decision in the case against the
Governor-General rest cannot by any means be extended to the
respondent.
ANOTHER ADEQUATE REMEDY.
This court, in its conclusions, holds that the remedy by appeal provided in
Act No. 1792 to the aggrieved party to the Governor-General and the
Secretary of War is another remedy in the ordinary course of law, and is
speedy and adequate and exclusive. Before the promulgation of this
decision, the statute reads "in the ordinary courts of law." But it now
reads "in the ordinary course of law." If the statute stood in its original
form, there could be no question. The offices presided over by the
Governor-General and the Secretary of War are not courts of law. Neither
an appeal nor writ of error would lie to this court from the decision of the
respondent in any case. So the relator not only did not have another
plain, speedy, and adequate remedy in the ordinary courts of law, but he
had no other remedy whatever in the courts.
We will now examine the question from the standpoint of the article as
corrected by the majority opinion. Is the remedy by appeal under Act No.
1792 plain, speedy, and adequate? It appears to be plain, as the
procedure is specifically and definitely pointed out. It is adequate, in the
sense that the Governor-General and the Secretary of War would
doubtless overrule the Auditor of his decision was contrary to law and
equity. But is it speedy? Before the writ can be denied upon this ground,
the remedy must be adequate; it must be plain; and it must be speedy. All
three. If either is lacking, the writ must issue. In my opinion, the remedy is
neither adequate nor speedy in contemplation to law. The relator being
held virtually as a prisoner, seeks complete relief, and that immediately.
The appeal provided for in Act No. 1792 is that from the decision of the
respondent to the Secretary of War through the Governor-General. In the
ordinary course of the transmittal of official matter, it would about two
months for the appeal to reach the Secretary of War after it had been
entered. But a few days must necessarily elapse before the Secretary
would pass upon the appeal. Then at least forty days more would be
required for the Secretary's decision be returned to the respondent, and if
the decision be favorable to the relator, how long would the respondent
take in issuing certificate? He might and could very well, under the
decision of this court, refuse absolutely to issue the certificate upon the
ground of newly discovered evidence or that in his judgment the interests
of the Government required that the accounts as they would then stand
balanced should be reopened and reconsidered, notwithstanding that he
had been reversed by the Secretary of War. Then another hearing would
have to take place; another appeal, and probably another reversal. There
would be no end to these appeals, as this court has held that in deciding
all questions submitted to the Auditor relative to these matters he must
necessarily use and does use such judgment and discretion as cannot be
reviewed or revised by the court. How, then, can it be said that such a
remedy is speedy? I say again, think of the position of an officer held as a
prisoner waiting the final result of this long, uncertain process. Again,
should the Secretary of War affirm the decision of the respondent, the
relator would be in no better position than he was before the appeal was
taken. In this the remedy is not adequate. Relief is what the relator wants,
and not the uncertainties of an appeal.
In the case of Hoey vs. Baldwin (1 Phil. Rep., 551) the plaintiff
brought mandamus proceedings against the defendant to compel him to
pay a certain amount of salary due. The defendant demurred upon the
ground, among others, that plaintiff was not entitled to the writ for the
reason that he had another plain, speedy, and adequate remedy in that
he could bring an action against the city or upon the defendant's official
bond. The demurrer was overruled, the court saying:
It is enough to say that such a remedy is certainly not a speedy
one and there is difficulty in calling it a plain one.
In this case the plaintiff was seeking to recover a small amount of money
only. In the case at bar the relator is fighting for his liberty.
In the case of Trinidad vs. Judge of First Instance (4 Phil. Rep., 531) the
petitioner had been convicted by the respondent judge on an appeal by
the former from the municipal court for violation of a city ordinance. His
appeal to the Supreme Court on the validity or constitutionality of the
ordinance was denied. He asked this court to compel the judge by a writ
of mandamus to allow this appeal. It was urged that if the petitioner was
confined by virtue of that sentence and that if the ordinance was invalid
his remedy would be by habeas corpus and not by mandamus, as the
former was a plain, speedy, and adequate remedy. This court said:
The fact, if it be a fact, that if the plaintiff is imprisoned by virtue of
this judgment he can upon a writ of habeas corpus attack the
validity of the ordinance for the violation of which he was
convicted is no bar to the prosecution of this suit of mandamus.
(Citing Collins vs. Wolfe, 4 Phil. Rep., 534.)
In the case of People ex. rel. La Grange vs. State Treasurer (24 Mich.,
468) the court said.
But in cases where the right is clear and specific, and public
officers or tribunals refuse to comply with their duty, a writ
of mandamus issues for the very purpose, as declared by Lord
Mansfield, of enforcing specific relief. It is the inadequacy, and
not the mere absence, of all other legal remedies, and the danger
of a failure of justice without it, that must usually determine the
propriety of this writ. Where none but specific relief will do justice,
specific relief should be granted if practicable. And where a right
is single and specific it usually is practicable.
This was an ordinary civil case.
In the case of the State vs. North-Eastern R. R. Co. (9 Rich. Law (S. C.),
247, 67 Am. Dec., 551) the court said:
The general doctrine so earnestly insisted on by the appellant's
counsel, that where there is a specific legal remedy the writ will
not be granted, or if granted, will be quashed, is fully sustained by
reason, and by the authorities to which the court has been
referred. But this general rule has been restricted to cases where
the legal specific remedy is equally convenient, complete and
beneficial.
Another ordinary civil case.
In the case of Hopkins vs. The State of Nebraska ex rel. Omaha
Cooperage Company (64 Neb., 10) the court said:
A remedy which is used to enforce a right or the performance of a
duty, unless it reaches the end intended and actually compels the
performance of the duty contemplated, is not adequate.
Almost an unlimited number of authorities from the United States could
be cited which support the doctrine laid down in these three cases. This
being the holding of the courts in ordinary civil actions, what should it be
in a case where the interested party is actually and effectively deprived of
his liberty?
And lastly, this court says:
Section 222 of Act No. 190 was taken from section 1085 of the
California Code of Civil Procedure. The section of the California
Code reads "course of law," instead of "court of law." We believe
that a mistake or error has been made in the printing of said
section. We believe that it was the intention of the legislative
department of the government to follow exactly the provision of
the California Code and that they intended to use the phrase
"course of law" and not the "courts of law." It will be noted in
section 226, the section relating to the writ of prohibition, the
legislature used the phrase "course of law."... We cannot believe
that the legislature intended to limit the jurisdiction of this court
in mandamus to the cases where there was no other adequate
and speedy remedy in the ordinary courts of law. It is our duty,
therefore, to give to the statute a sensible construction; such as
will effectuate the legislative intention and, if possible, avoid an
injustice or an absurd conclusion.
The statute was corrected or amended by the court so as to read "in the
ordinary course of law:" "corrected" if it was the intention of the legislature
to use the word "course" and "amended" if it was not. Courts have the
power to thus correct, but not to amend.
There are three cases cited, together with Black on Interpretation of
Laws, in the majority opinion, in support of the court's power to eliminate
the word "courts" and substitute therefor the word "course." (Lau Ow
Bew vs. United States, 144. U. S. 47, 59; Lancaster vs. Frey, 128 Pa.,
593; Lancaster County vs. City of Lancaster, 160 Pa., 411; and Black on
Interpretation of Laws, p. 77.)
In the first case it was sought to have the Supreme Court of the United
States review by writ of certiorari a judgment of the Circuit Court of
Appeals. The Act of Congress of March 3, 1891, was an act establishing
Circuit Courts of Appeal and defining and regulating the jurisdiction of the
courts of the United States. By section 6 the circuit court of appeals "shall
exercise appellate jurisdiction to review by appeal or by writ of error" the
final decisions of the Circuit Courts "in all cases other than those
provided for in the preceding sections of this Act unless otherwise
provided by law." The court said:
The words "unless otherwise provided by law" were manifestly
inserted out of abundant caution, in order that any qualification of
the jurisdiction by contemporaneous or subsequent acts should
not be construed as taking it away except when expressly so
provided. Implied repeals were intended to be thereby guarded
against. To hold that the words referred to prior laws would defeat
the purpose of the Act and be inconsistent with its context and its
repealing clause.
The only thing before the court upon this point of the cases was a
construction of the words "unless otherwise provided by law." It was not a
correction of errors made by the legislature. At page 59, cited in the
majority opinion, the court said:
Nothing is better settled than that statutes should receive a
sensible construction, such as will effectuate the legislative
intention, and, if possible, so as to avoid an unjust or an absurd
conclusion.
The court here had under consideration the construction of section 6 of
the Chinese Restriction Act on May 6, 1882, as amended by the Act of
July 5, 1884. The plaintiff, Lau Ow Bew went to China to visit his
relatives, having previously procured the proper evidence of his status in
the United States as a merchant, in accordance with the regulations of
the Treasury Department. On his return to the United States it was
admitted by the collector that plaintiff was a merchant domiciled in the
United States and the sufficiency of his proof of identity was
acknowledged; yet the collector refused to permit him to land on the sole
ground that he had failed and neglected to produce the certificate of the
Chinese Government mentioned in section 6 of the Act of May 6, 1882,
as amended by the Act of July 5, 1884.
In the second case, a statute of Pennsylvania relating to the
apportionment of the expense of certain local improvements between a
city and the county in which it was situated, provided that when the
balance of expenditures should be against the city, any further
expenditures should be "payable out of the treasury of said county, and
be reimbursable out of the county treasury only when the balance shall
be in favor of said city, and to the extent of such balance." It was held
that the word "county," in the clause "be payable out of the treasury of
said county," must be read as "city," for there was plainly a clerical error,
by which "county" was substituted for "city." It was said by the court:
The obvious meaning and purpose of the act is plain from the context. . . .
In making this correction we are not to be understood as
correcting the act of the legislature. We are enabled to carry out
the intention of the legislature, from the plain and obvious
meaning of the context, in which the real purpose or intention of
the legislature is manifest. It falls within the province of the courts
to correct a merely clerical error, even in an act of assembly,
when, as it is written, it involves a manifest absurdity, and the
error is plain and obvious. . . . The power is undoubted, but it can
only be exercised when the error is so manifest, upon an
inspection of the act, as to preclude all manner of doubt, and
when the correction will relieve the sense of the statute from an
actual absurdity, and carry out the clear purpose of the
legislature. [128 Pa., 593.]
In the third case, the very same error in the same act was under
consideration.
Mr. Black says on page 79:
But it must be remembered that the courts are not at liberty to
indulge in corrections and emendations of the written laws, unless
it is perfectly plain that there is a clerical error or misprint, and
unless the text, as it stands, with the error uncorrected, would be
devoid of sensible meaning or contrary to the evident legislative
intent.
In the State of Maryland a revenue law provided that all property within
the state of every description except certain property therein particularly
named should be "exempt from taxes for state or local purposes." It was
almost incredible that the legislature meant what the words imported. The
obvious intention was to say that all property except that mentioned
should be subject to taxation. Yet the court refused to correct the
mistake, saying that the language used was perfectly plain and
unambiguous, and must be taken in its natural import. (Maxwell vs. State,
40 Md., 273.)
Under a Missouri statute providing that a demand against an estate in the
probate court, if exhibited within two years, might be proved within three
years, it was held that, though "three" was substituted by mistake for
"two," yet the court could not construe away the plain words of the law.
(Hicks vs. Jamison, 10 Mo. App., 35.)
We are bound to give to the words of the legislature all possible
meaning which is consistent with the clear language used. But if
we find language used which is incapable of a meaning, we
cannot supply one. To give an effectual meaning (in the present
case) we must alter, not only "or" into "and," but "issued" into
"levied." It is extremely probable that this would express what the
legislature meant. But we cannot supply it. Those who used the
words thought that they had effected the purpose intended. But
we, looking at the words as judges, are no more justified in
introducing that meaning than we should be if we added any
other provision. (Green vs. Wood, 7 Ad. & El. (N. S.), 178, per
Lord Denman.)
The word "courts" as used in section 222 of our Code of Civil Procedure
is plain, it is clear, and it is not ambiguous. This word has remained in this
section for more than ten years. The question of "correcting" an act of the
legislature by the courts is at all times one of much delicacy. An act
should never be so corrected in a doubtful case. The court, when
impelled by duty to render a such judgment, would be unworthy of its
station could it be unmindful of the solemn obligations which that station
imposes, but it is not slight implications and vague conjectures that the
legislature should be pronounced to have been so careless and
inattentive to duty as to sanction the publication of one of its acts and
permit its remaining unchanged so long.
This court says:
We cannot believe that the legislature intended to limit the
jurisdiction of this court in mandamus to the cases where there
was no other adequate and speedy remedy in the ordinary courts
of law.
It appears to my mind that substituting the word "course" for "courts"
curtails the jurisdiction of this court. To leave the word "courts" we have
jurisdiction of cases which we cannot have under the word "course." The
very case at bar illustrates this fact. As I have said, the relator had no
other remedy whatever in the ordinary courts of law, for the reason that
neither an appeal nor writ of error would lie to this court or any other court
from the decision of the Auditor; but in the ordinary "course" of law he has
a remedy by appeal to the Secretary of War, although that remedy is
neither speedy nor adequate. Why not say that it was the intention of the
legislature to give the courts great latitude in mandamus proceedings on
account of the peculiar constitution of the government. The legislature
undoubtedly had the power to confer this jurisdiction upon the courts and
according to the plain wording of this section it did do so. It does not
render the statute meaningless or nonsensical. It might be said that if the
legislature intended to use the word "courts" the result would be that
innumerable proceedings in mandamus would be instituted where the
interested parties had a very plain, speedy, and adequate remedy in the
executive branch of the government. But it is not probable that this would
occur, for the reason that it is always within the sound discretion of the
court whether or not a mandamus should issue.
Paragraph 4 of section 333 of Act No. 190 originally read "the judgment
or order of the court when declared by the court to be conclusive." The
legislature, by Act No. 1431, passed January 3, 1906, changed the words
"the court" to "this code." This tend to show that the code has been very
carefully gone over.
One of the principal characteristics of judge-made law is uncertainty. This
uncertainty comes in a great degree from the nature of the source
whence the law is derived. It is made by the judiciary, not by the
legislature. Made to fit particular cases, and always after the fact. The
difference between judge-made law and jurisprudence founded upon
statutes is as wide as the poles. The true function of the legislature is to
make the law; the true function of the courts is to expound it. The function
of legislation and interpretation can not under our form of government be
placed in the same hands. Our first maxim is that the laws be made by
one set of men and interpreted by another. In other words, that the
legislative and judicial characters be kept separate. If we inquire what it is
that gives force to an act of the legislature, the answer is that it is
ultimately the will of the people. The people have willed that an
assemblage of men organized in such and such a way shall make the
laws for the entire community. It may be true that no legislature was ever
so active as to make its statutes cover the entire field of admitted legal
obligation. But where it has expressly by its solemn act covered a part of
the field, the court should not interfere with its own legislative power,
except, possibly, in extreme cases. Mr. Boyd Winchester, in his article
"The Judiciary" (32 Am. Law. Rev., 807), says among other things:
 In the judgment of many no more serious evil has developed in
our constitutional history than the growing tendency of the courts
to stretch the powers devolved upon them by the federal and
state constitutions, and usurp the functions of the political
departments of the government. Not content with deciding
questions of law and fact brought before them in the ordinary
course of litigation, the courts have, in many instances,
undertaken to legislate.
xxx      xxx      xxx
Judicial power, in its nature, is power to hear and decide causes
pending between parties who have the right to sue and be sued
in the courts of law and equity.
Article 483 of the Penal Code provides that any person who in any case
other than that permitted by law or without reasonable grounds therefore
shall arrest or detain another person for the purpose of taking the latter
before the authorities, shall suffer the penalties of arresto menor and a
fine. In commenting upon this article, Viada, in volume 3, page 288, says:
Arresto menor, a light penalty under the general scale of
penalties set out in article 26, is here applied for the first and only
time in this code, to an offense greater than a misdemeanor. It
would appear that in place of this offense it was intended to
prescribe arresto mayor.
Speaking in reference to the penalty here imposed by this article, this
Supreme Court, in the case of United States vs. Fontanilla (11 Phil. Rep.,
233) said:
The penalty prescribed under this article is that of arresto menor,
which seems hardly adequate in view of all the circumstances of
this case, but it is the penalty prescribed by law and the only one
which can lawfully be imposed.
xxx      xxx      xxx
It is our duty to impose the penalty prescribed by law and no
other.
Here the court practically admits that the legislature did not intend to use
the words "arresto menor," but intended to use the words "arresto
mayor."
Our Code of Civil Procedure was prepared and enacted in 1901 by a
commission, the majority of whose members were American lawyers of
known reputation. Each section was discussed and examined separately.
It was no doubt carefully gone over frequently after it became law. The
Commission, before the convening of the Assembly, met in legislative
session almost daily, and it does not appear that if the word "courts" was
used in section 222 by mistake, that it would have been discovered long
before this time.
In the case of Hoey vs. Baldwin, supra, this court quoted the whole of
section 222. The question whether or not the plaintiff had a plain, speedy,
and adequate remedy in the ordinary courts of law was squarely before
the court. The court did not even indicate in this case that the legislature
did not intend to use the word "courts." I am of the opinion that it is rather
late, after the code has been in effect for over ten years, to amend it in
this manner.
Allowing the statute to stand as it was enacted, is it meaningless or
nonsensical? The section provides in effect that when a person shows a
departure from duty on the part of an officer, he shall have recourse
to mandamus if there is no other plain, speedy, and adequate remedy in
the ordinary courts of law. Does a strict interpretation of these provisions
lead us into impossibilities of improbabilities? If it does not, certainly there
can be no reason for going so far as to substitute new words for those
used by the legislature.
1. When the petitioner fails to show a departure from duty the
remedial portion of the section cannot be applied by the courts.
This is plain.
2. When the petitioner shows a departure from duty but has an
appeal to the courts (such as suit on official bond) which is not
plain, speedy and adequate, he section applies.
(Hoey vs. Baldwin, supra.)
3. When the petitioner shows a departure from duty but has an
appeal provided by law through administrative channels which is
not plain, speedy, and adequate, this court could logically take
jurisdiction on the ground that petitioner's only remedy in the
 courts is by mandamus and, consequently, that he has no other
remedy in the ordinary courts of law.
4. When the petitioner shows a departure from duty but has an
appeal provided by law through administrative channels which is
not plain, speedy, and adequate, a strict interpretation of section
222 would confer jurisdiction on this court to afford relief if the
petitioner elected to take his remedy in this way in preference to
his plain, speedy, and adequate remedy through administrative
channels. Did the legislature intend to provide this duplicate
remedy?
In the majority opinion this court undertook to show that there was a
clerical error in the preparation of the Code because (1) the section is
taken from the California Code which reads "course of law," and (2)
section 226 of our own code relating to prohibition reads "course of law." I
will add another, which is that the provision of a great number of the
codes in the United States which vests in the courts the power to
issue mandamus reads "course of law." In my opinion, all three of these
reasons do not show a clerical error in section 222. But let it be said that
they do operate to the extent that the legislature had a special purpose in
using the word "courts," and, in so doing, that it changed the general rule
in the United States. All will admit that the legislature had ample authority
to make this change and to confer this power upon the courts. Suppose
A, in his petition, should allege a gross abuse of discretion on the part of
an officer in the performance of his duties and the court find this
allegation to be true, and also that A had another plain, speedy, and
adequate remedy in administrative channels. This court, under the
powers conferred upon it by the original statute, would have authority to
afford the relief, but it does not follow that the court would exercise this
power. As a matter of fact, it would not. The statute provides that the
court may issue the writ. As I have said, the question as to whether or not
the writ of mandamus shall issue rests in every case in the sound
discretion of the court. Conferring upon the courts this extra power
in mandamus proceedings is not the only departure from the general
provisions of the codes in the United States. This court has the power to
increase, decrease, modify, etc., penalties in criminal cases. No such
power is exercised by any of the courts in the American Union. Again, our
Courts of First Instance exercise powers in the trial of cases unknown in
America. So also, the provisions of Act No. 1605 are unknown in the
United States. This Act is a wide departure from the general laws relating
to bonded officers in America. So it is not strange that this extra power
has been conferred upon the courts in mandamus proceedings.
In my opinion, the use of the word "courts" in section 222 is not a clerical
error, but a wise piece of legislation, and this court, in amending this
section by substituting the word "course" has committed the grave and
serious error of taking away from the courts powers which were wisely
conferred upon them by the legislature. When the legislature speaks it is
our duty to obey. The legitimate province of the courts is to interpret the
acts of the legislature as they are found. By so doing, that security of life,
liberty, and property, which is the great end of human society and
government, will be promoted, and the uncertainties which are sure to
follow judicial legislation avoided.
In this case the realtor is now and has been for some time deprived of his
liberty without due process of law. He failed to obtain relief in the highest
court in the land; the tribunal which has always been regarded as the
bulwark of the people's liberties, the guardian of the great principles
contained in the instructions of the President of the First Philippine
Commission, and the final protector of life and property.
For the foregoing reasons, I firmly believe that the demurrer should have
been overruled and the defendant required to answer.
G.R. NO. 157972 : October 30, 2006]
HRS. OF SPS. LUCIANO and CONSOLACION VENTURILLO,
Represented by ROWENA B. VENTURILLO-
SUCALDITO, Petitioners, v. HON. JESUS V. QUITAIN,
Presiding Judge, RTC-Br. 15, 11 th Judicial Region, Davao
City and ENG'R. MEINRADO R. METRAN, City Engineer and
Building Official of The City of Davao, Respondents.
DECISION
TINGA, J.:
The Heirs of Spouses Luciano and Consolacion Venturillo (Heirs
of Venturillo), represented by Rowena B. Venturillo-Sucaldito,
assail for having been issued with grave abuse of discretion the
Order1 dated April 22, 2003 of the Regional Trial Court of Davao
City, Branch 15, which dismissed their petition
for mandamus and denied their prayer for injunctive relief.
The following statement of facts is taken from the Court's
Resolution2 dated May 15, 2003:
Sometime in 1942, the Spouses Luciano and Consolacion
Venturillo occupied a 678-square meter lot in Poblacion, Davao
City, said lot being public land. The Venturillo couple erected a
house on the said property and begot 11 children, the
petitioners herein, during their lifetime.
In 1974, the Davao City Assessor's Office directed the
Venturillos to file a Tax Declaration. They complied with the said
directive and paid the required taxes. The petitioners then
continued the renewal of the tax declarations and paying of
taxes.
Sometime in 2000, Rowena Venturillo-Sucaldito filed a sales
application with the Department of Environment and Natural
Resources (DENR) and the DENR wrote the City Government for
its comments regarding her application. In response,
respondent City Engineer sent an inspection team to check out
the property.
On June 8, 2000, the inspectors submitted a report
recommending the approval of Sucaldito's application. No
immediate action, however, was taken by respondent City
Engineer on the report.
On October 4, 2001, respondent City Engineer asked the
petitioners to secure a building permit for the house erected on
the lot, after it was shown that said structure had no building
permit.
The petitioners then hired an engineer who prepared the
necessary plans and other documents, which were submitted to
the respondent City Engineer.
On October 27, 2002, the Sanggunian Barangay of Barangay 4-
A, Poblacion, Davao City passed a resolution requesting
the Sanggunian Panglungsud of Davao City to declare the
portion of the proposed extension of Mayon St., as "suppressed
road."
On January 8, 2003, respondent City Engineer sent petitioners a
Notice of Order of Removal.
On February 13, 2003, the Zoning Administrator wrote
petitioners that the area they were occupying is a road right-of-
way.
On March 20, 2003, the petitioners herein filed a petition
for mandamus with urgent prayer for temporary restraining
order (TRO) and preliminary injunction against respondent City
Engineer with the RTC of Davao City, docketed as SP Civil Case
No. 29597-2003. The trial court granted the temporary
restraining order prayed for.
On March 25, 2003, the trial court ordered the parties in a
hearing set for March 27, 2003 to determine whether the TRO
should be extended for 17 days. Said hearing, however, was
cancelled at the manifestation of the respondent City Engineer.
On March 31, 2003, the hearing for the writ of preliminary
injunction was set for April 14-15, 2003.
On April 8, 2003, respondent City Engineer moved for an
extension of time to file his answer to the petition.
On April 15, 2003, the respondent City Engineer manifested in
open court that he was not opposing the application for a writ of
preliminary injunction. The trial court then ordered the
petitioners to submit their formal offer of exhibits to support
their application on April 21, 2003 and the City Engineer to
comment upon the same within five days from receipt, after
which the trial court would rule upon the application for
injunction.
On April 22, 2003, petitioner moved to have their tardily filed
formal exhibits admitted and submitted their formal offer of
exhibits. That same day, the trial court denied the issuance of
the writ of preliminary injunction and dismissed the SP Civil
Case No. 29597-2003.
The Heirs of Venturillo allege that the trial court gravely abused
its discretion when it dismissed their petition for mandamus and
denied their prayer for injunction without: (1) ruling on the
admissibility of their admittedly tardy formal offer of exhibits;
(2) waiting for respondent City Engineer's comment or objection
to said formal offer; and (3) without waiting for the answer of
the City Engineer in the mandamus case.
In the afore-cited Resolution dated May 15, 2003, the Court,
ruling that there is a need to maintain the last, actual,
peaceable, and uncontested state of things which preceded the
present controversy, directed the parties to maintain the status
quo.
The Office of the City Legal Officer filed a Comment 3 dated July
31, 2003 on behalf of respondent City Engineer Meinrado R.
Metran, contending that the trial court's dismissal of the petition
for mandamus and denial of the prayer for injunction do not
constitute grave abuse of discretion. According to respondent,
the Heirs of Venturillo were not able to establish any legal right
to demand the issuance of a building permit because the lot on
which their structure was constructed remains to be public land
delineated as a road right-of-way. Although the Heirs of
Venturillo filed a sales application with the DENR, their
application was not processed.
Moreover, the Heirs of Venturillo allegedly failed to comply with
the indispensable requirement of filing a motion for
reconsideration before they sought recourse to this Court via a
petition for certiorari . Neither did they file an appeal of the trial
court's final Order.
The Heirs of Venturillo filed a Reply4 dated December 15, 2003
reiterating their arguments.
In the Resolution5 dated May 19, 2004, the parties were
required to file their respective memoranda. Thus, respondent
filed a Memorandum6 dated July 15, 2004, while the Heirs of
Venturillo filed their Memorandum7 on September 21, 2004.
The general rule is that the remedy to obtain reversal or
modification of a judgment on the merits is appeal. This is true
even if the error ascribed to the court which rendered judgment
is its lack of jurisdiction over the subject matter, or the exercise
of power in excess thereof, or grave abuse of discretion in the
findings of fact or of law set out in the decision.8
In this case, the Heirs of Venturillo received the assailed Order
of the trial court on April 25, 2003. They therefore had 15 days
from this date, or until May 10, 2003, within which to file an
appeal to the Court of Appeals under Rule 41 of the 1997 Rules
of Civil Procedure (Rules of Court) or a Petition for Review
on Certiorari to this Court under Rule 45 of the same rules.
However, in the guise of availing of a petition
for certiorari under Rule 65 of the Rules of Court, the Heirs of
Venturillo filed their petition only on May 12, 2003. It is
axiomatic that the special civil action of certiorari cannot be
used as a substitute for the lost or lapsed remedy of appeal.9
Even assuming that the Heirs of Venturillo have a cause of
action ripe for the extraordinary writ of certiorari, they clearly
disregarded the hierarchy of courts when they directly filed their
petition with this Court without adducing any special and
important reason or exceptional or compelling circumstance for
such a recourse. Considering that the special civil action
of certiorari under Rule 65 of the Rules of Court is within the
concurrent original jurisdiction of the Supreme Court and the
Court of Appeals, the petition should have been initially filed in
the Court of Appeals in strict observance of the doctrine on the
hierarchy of courts.10
Moreover, the Heirs of Venturillo failed to file a motion for
reconsideration of the trial court's Order, depriving the latter of
the opportunity to correct whatever error it may have
committed. Rule 65 of the Rules of Court requires that
petitioner be left with "no appeal, nor any plain, speedy, and
adequate remedy in the ordinary course of law."11
A motion for reconsideration is a plain, speedy, and adequate
remedy. The filing thereof is a condition precedent in order that
a petition for certiorari may be given due course.12 Although
there are certain recognized exceptions to this rule, such as
where the order is a patent nullity for lack of jurisdiction on the
part of the court which rendered it, or where the questions
raised in the certiorari proceeding have been duly raised and
passed upon in the lower court,13 we find no such exception in
this case which would warrant a departure from the rule.
Regional Trial Courts are fully clothed with jurisdiction to issue
writs of certiorari, prohibition, mandamus, quo
warranto, habeas corpus and injunction which may be enforced
in any part of their respective regions. Moreover, the question
of whether it should have first ruled on the admissibility of the
tardy formal offer of exhibits filed by the Heirs of Venturillo, and
waited for respondent's comment or objection to said formal
offer and answer in the mandamus case, were not raised and
passed upon by the trial court precisely because the Heirs of
Venturillo failed to file a motion for reconsideration. Had they
done so, the trial court would have been given the opportunity
to correct any factual or fancied error attributed to it by way of
re-examination of the legal and factual aspects of the case.
These procedural errors, notwithstanding, and in the interest of
finally disposing of this case, we reviewed its merits and found
that indeed grave abuse of discretion attended the issuance of
the assailed Order of the trial court.
The remedy of mandamus lies to compel the performance of a
ministerial duty.14 A purely ministerial act or duty, in
contradistinction to a discretionary act, is one which an officer
or tribunal performs in a given state of facts, in a prescribed
manner, in obedience to the mandate of legal authority, without
regard to or the exercise of his own judgment, upon the
propriety or impropriety of the act done. If the law imposes a
duty upon a public officer, and gives him the right to decide
how or when the duty shall be performed, such duty is
discretionary and not ministerial.15
The issuance of a building permit may be considered a
ministerial duty only when the application and the plans are in
conformity with the requirements of zoning and land use, lines
and grades, structural design, sanitary and sewerage,
environmental health, electrical and mechanical safety as well
as with other rules and regulations promulgated in accordance
with the provisions of the National Building Code.16
In this case, the Heirs of Venturillo complied with all the
requirements for the procurement of a building permit
enumerated under the National Building Code, such as the
description of the work to be covered by the permit applied for;
description and ownership of the lot on which the proposed
work is to be done; the use or occupancy for which the
proposed work is intended; estimated cost of the proposed
work; and the plans and specifications prepared, signed and
sealed by a duly licensed engineer.17 They also paid the
requisite fees for the application.18
Having done so, it became incumbent upon respondent City
Engineer to issue the building permit applied for. His refusal to
perform an act which the law enjoins him to do, upon the full
compliance by the Heirs of Venturillo of the conditions provided
under the law, entitles the latter to the writ
of mandamus prayed for.
By the same token, the Heirs of Venturillo are entitled to a writ
of injunction to prevent the threatened summary demolition of
their residence. The requisites for an injunctive writ to issue are
that: (1) the petitioner/applicant must have a clear and
unmistakable right; (2) there is a material and substantial
invasion of such right; and (3) there is an urgent and
permanent necessity for the writ to prevent serious damage.19
Respondent City Engineer's refusal to issue the building permit
and concomitant order for the Heirs of Venturillo to cause the
demolition of their house or else the same shall be summarily
demolished20 are premised on the fact that the house which the
Heirs of Venturillo intended to refurbish stands in the middle of
the proposed extension of Mt. Mayon Street, an area which had
been declared as a road right-of-way by the City Government.
It should be emphasized, however, that the Heirs of Venturillo,
through their parents, have continuously possessed and
occupied the land on which the house sought to be refurbished
stands since 1942. This possession was with the tacit consent
and authorization of the City Government. In fact, the City
Assessor's Office directed the Venturillos to file tax declarations
and pay real property taxes thereon which they have
consistently complied with.
In Estate of Gregoria Francisco v. Court of Appeals,21 the
municipal mayor of Isabela, Basilan ordered the summary
demolition, without judicial authority, of a quonset building
which stood on a lot owned by the Philippine Ports Authority.
The municipal mayor justified the demolition as an exercise of
police power and for reasons of health, safety and general
welfare.
The Court awarded just compensation the amount of which was
for the trial court to determine in favor of the petitioner whose
building was demolished by the municipality even before a
proper tribunal could decide whether or not the building
constituted a nuisance in law. The ruling was premised on the
ground that the owner of the building was in lawful possession
of the lot and the building by virtue of the permit from the
authorized government agency when the demolition was
affected.
In the same vein, by virtue of the City Government's tacit
consent, the Heirs of Venturillo are not squatters on public land
but are in lawful possession thereof, including the house subject
of the summary demolition order of respondent City Engineer.
The Heirs of Venturillo have a clear and unmistakable legal right
not to be disturbed in their lawful possession of the property
unless the proper judicial tribunal has determined that the same
constitutes a nuisance in law.
The trial court should have issued an injunctive writ to prevent
the imminent threat of summary demolition of the Heirs of
Venturillo's residence without judicial proceedings. That it failed
to safeguard petitioners' right to due process constitutes grave
abuse of discretion.
WHEREFORE, the instant petition is GRANTED. The Order dated
April 22, 2003 of the Regional Trial Court of Davao City, Branch
15, is ANNULLED and SET ASIDE. The public respondent City
Engineer of Davao City is DIRECTED to issue in favor of
petitioners the building permit applied for. He is further
ORDERED to CEASE and DESIST from enforcing the Order of
Removal dated January 8, 2003. No pronouncement as to costs.
SO ORDERED.
G.R. No. 139813       January 31, 2001
JOEL BITO-ONON, petitioner,
vs.
HON. JUDGE NELIA YAP FERNANDEZ, R.T.C. Br. 50 – Puerto
Princesa City and Palawan, and ELEGIO QUEJANO,
JR., respondents.
GONZAGA-REYES, J.:
This Petition for Certiorari and Prohibition with prayer for the issuance of
a temporary restraining order and writ of injunction seeks the reversal of
the Order of the Regional Trial Court of Palawan and Puerto Princesa
City,1 Branch 50 in SPL. PROC. NO. 1056 entitled "Elegio F. Quejano,
Jr., petitioner vs. Joel Bito-Onon, et. al., respondents" which denied
herein petitioner's motion to dismiss the Petition for Review of the
Resolution of the Board of Election Supervisors dated August 25, 1997 in
case number L-10-97 filed by herein private respondent with said court.
1âwphi1.nêt
It appears from the records that the petitioner, Joel Bito-Onon is the duly
elected Barangay Chairman of Barangay Tacras, Narra, Palawan and is
the Municipal Liga Chapter President for the Municipality of Narra,
Palawan. The private respondent, Elegio Quejano, Jr. on the other hand,
is the duly elected Barangay Chairman of Barangay Rizal, Magsaysay,
Palawan and is the Municipal Liga Chapter President for the Municipality
of Magsaysay, Palawan. Both Onon and Quejano were candidates for the
position of Executive Vice-President in the August 23, 1997 election for
the Liga ng Barangay Provincial Chapter of the province of Palawan.
Onon was proclaimed the winning candidate in the said election
prompting Quejano to file a post proclamation protest with the Board of
Election Supervisors (BES), which was decided against him on August
25, 1997.
Not satisfied with the decision of the BES, Quejano filed a Petition for
Review of the decision of the BES with the Regional Trial Court of
Palawan and Puerto Princesa City (RTC). On April 26, 1999, Onon filed a
motion to dismiss the Petition for Review raising the issue of jurisdiction.
Onon claimed that the RTC had no jurisdiction to review the decisions
rendered by the BES in any post proclamation electoral protest in
connection with the 1997 Liga ng mga Barangay election of officers and
directors. In his motion to dismiss, Onon claimed that the Supplemental
Guidelines for the 1997 Liga ng mga Barangay election issued by the
DILG on August 11, 1997 in its Memorandum Circular No. 97-193,
providing for review of decisions or resolutions of the BES by the regular
courts of law is an ultra vires act and is void for being issued without or in
excess of jurisdiction, as its issuance is not a mere act of supervision but
rather an exercise of control over the Liga's internal organization.
On June 22, 1999, the RTC denied Onon's motion to dismiss. In its order,
the RTC ratiocinated that the Secretary of the Department of Interior and
Local Government2 is vested with the power "to establish and prescribe
rules, regulations and other issuances and implementing laws on the
general supervision of local government units and the promotion of local
autonomy and monitor compliance thereof by said units." 3 The RTC
added that DILG Circular No. 97-193 was issued by the DILG Secretary
pursuant to his rule-making power as provided for under Section 7,
Chapter II, Book IV of the Administrative Code. 4 Consequently, the RTC
ruled that it had jurisdiction over the petition for review filed by Quejada. 5
Motion for reconsideration of the aforesaid Order was denied 6 prompting
the petitioner to file the present petition wherein the following issues are
raised:
A. WHETHER OR NOT THE QUESTIONED PROVISION IN
MEMORANDUM CIRCULAR 97-193 WAS ISSUED BY THE
DILG SECRETARY IN EXCESS OF HIS AUTHORITY.
B. WHETHER OR NOT THE RESPONDENT JUDGE
COMMITTED GRAVE ABUSE OF DISCRETION IN ISSUING
THE QUESTIONED ORDERS.7
In support of his petition, Onon argues that the "Supplemental Guidelines
for the 1997 Synchronized Election of the Provincial and Metropolitan
Chapters and for the Election of the National Chapter of the Liga ng mga
Barangay" contradicts the "Implementing Rules and Guidelines for the
1997 General Elections of the Liga ng mga Barangay Officers and
Directors" and is therefore invalid. Onon alleges that the Liga ng mga
Barangay (LIGA) is not a local government unit considering that a local
government unit must have its own source of income, a certain number of
population, and a specific land area in order to exist or be created as
such. Consequently, the DILG only has a limited supervisory authority
over the LIGA. Moreover, Onon Argues that even if the DILG has
supervisory authority over the LIGA, the act of the DILG in issuing
Memorandum Circular No. 97-193 or the supplemental rules and
guidelines for the conduct of the 1997 LIGA elections had the effect of
modifying, altering and nullifying the rules prescribed by the National Liga
Board. Onon posits that the issuance of said guidelines allowing an
appeal of the decision of the BES to the regular courts rather than to the
National Liga Board is no longer an exercise of supervision but an
exercise of control.8
In his comment to the petition, private respondent Quejano argues that
the Secretary of the DILG has competent authority to issue rules and
regulations like Memorandum Circular No. 97-893. The Secretary of
DILG's rule-making power is conferred by the Administrative Code.
Considering that the Memorandum Circular was issued pursuant to his
rule making power, Quejano insists that the lower court did not commit
any reversible error when it denied Onon's motion to dismiss.9
On the other hand, the public respondent represented herein by the
Solicitor General, filed a separate Manifestation and Motion in Lieu of
Comment agreeing with the position of petitioner Onon. The Solicitor
General affirms Onon's claim that in issuing the questioned Memorandum
Circular, the Secretary of the DILG effectively amended the rules and
guidelines promulgated by National Liga Board. This act was no longer a
mere act of supervision but one of control. The Solicitor General submits
that the RTC committed grave abuse of discretion in not dismissing the
petition for review of the BES decision filed before it for failure of the
petitioner to exhaust the rightful remedy which was to appeal to the
National Liga Board.10
On October 27, 1999, this Court denied petitioner Onon's motion for the
issuance of restraining order for lack of merit.
After a careful review of the case, we sustain the position of the
petitioner.
The resolution of the present controversy requires an examination of the
questioned provision of Memorandum Circular No. 97-193 and the
Implementing Rules and Guidelines for the 1997 General Elections of the
Liga ng mga Barangay Officers and Directors (Guidelines). The
memorandum circular reads, insofar as pertinent, as follows:
"Any post-proclamation protest must be filed with the BES within
twenty-four (24) hours from the closing of the election. The BES
shall decide the same within forty-eight (48) hours from receipt
thereof. The decision of the BES shall be final and immediately
executory without prejudice to the filing of a Petition for Review
with the regular courts of law."11 (emphasis supplied)
On the other hand, the GUIDELINES provides that the BES shall have
the following among its duties:
"To resolve any post-proclamation electoral protest which must
be submitted in writing to this Board within twenty-four (24) hours
from the close of election; provided said Board shall render its
decision within forty-eight (48) hours from receipt hereof; and
provided further that the decision must be submitted to the
National Liga Headquarters within twenty-four (24) hours from the
said decision. The decision of the Board of Election Supervisors
in this respect shall be subject to review by the National Liga
Board the decision of which shall be final and
executory."12 (emphasis supplied)
Memorandum Circular No. 97-193 was issued by the DILG Secretary
pursuant to the power of general supervision of the President over all
local government units which was delegated to the DILG Secretary by
virtue of Administrative Order No. 267 dated February 18, 1992. 13 The
President's power of general supervision over local government units is
conferred upon him by the Constitution.14 The power of supervision is
defined as "the power of a superior officer to see to it that lower officers
perform their functions in accordance with law." 15 This is distinguished
from the power of control or "the power of an officer to alter or modify or
set aside what a subordinate officer had done in the performance of his
duties and to substitute the judgment of the former for the latter." 16
On many occasions in the past, this court has had the opportunity to
distinguish the power of supervision from the power of control. In Taule
vs. Santos,17 we held that the Chief Executive wielded no more authority
than that of checking whether a local government or the officers thereof
perform their duties as provided by statutory enactments. He cannot
interfere with local governments provided that the same or its officers act
within the scope of their authority. Supervisory power, when contrasted
with control, is the power of mere oversight over an inferior body; it does
not include any restraining authority over such body. 18 Officers in control
lay down the rules in the doing of an act. If they are not followed, it is
discretionary on his part to order the act undone or re-done by his
subordinate or he may even decide to do it himself. Supervision does not
cover such authority. Supervising officers merely sees to it that the rules
are followed, but he himself does not lay down such rules, nor does he
have the discretion to modify or replace them. If the rules are not
observed, he may order the work done or re-done to conform to the
prescribed rules. He cannot prescribe his own manner for the doing of the
act.19
Does the President's power of general supervision extend to the liga ng
mga barangay, which is not a local government unit?20
We rule in the affirmative. In Opinion No. 41, Series of 1995, the
Department of Justice ruled that the liga ng mga barangay is a
government organization, being an association, federation, league or
union created by law or by authority of law, whose members are either
appointed or elected government officials. The Local Government
Code21 defines the liga ng mga barangay as an organization of all
barangays for the primary purpose of determining the representation of
the liga in the sanggunians, and for ventilating, articulating and
crystallizing issues affecting barangay government administration and
securing, through proper and legal means, solutions thereto. 22 The liga
shall have chapters at the municipal, city, provincial and metropolitan
political subdivision levels. The municipal and city chapters of the liga
shall be composed of the barangay representatives of the municipal and
city barangays respectively. The duly elected presidents of the
component municipal and city chapters shall constitute the provincial
chapter or the metropolitan political subdivision chapter. The duly elected
presidents of highly urbanized cities, provincial chapters, the Metropolitan
Manila chapter and metropolitan political subdivision chapters shall
constitute the National Liga ng mga Barangay. 23
The liga at the municipal, city, provincial, metropolitan political
subdivision, and national levels directly elect a president, a vice-president
and five (5) members of the board of directors. The board shall appoint its
secretary and treasurer and create such other positions as it may deem
necessary for the management of the chapter. 24
The ligas are primarily governed by the provisions of the Local
Government Code.25 However, their respective constitution and by-laws
shall govern all other matters affecting the internal organization of the liga
not otherwise provided for in the Local Government Code provided that
the constitution and by-laws shall be suppletory to the provisions of Book
III, Title VI of the Local Government Code and shall always conform to
the provisions of the Constitution and existing laws.26
Having in mind the foregoing principles, we rule that Memorandum
Circular No. 97-193 of the DILG insofar as it authorizes the filing a
Petition for Review of the decision of the BES with the regular courts in a
post proclamation electoral protest is of doubtful constitutionality. We
agree with both the petitioner and the Solicitor General that in authorizing
the filing of the petition for review of the decision of the BES with the
regular courts, the DILG Secretary in effect amended and modified the
GUIDELINES promulgated by the National Liga Board and adopted by
the LIGA which provides that the decision of the BES shall be subject to
review by the National Liga Board. The amendment of the GUIDELINES
is more than an exercise of the power of supervision but is an exercise of
the power of control, which the President does not have over the LIGA.
Although the DILG is given the power to prescribe rules, regulations and
other issuances, the Administrative Code limits its authority to merely
"monitoring compliance" by local government units of such
issuances.27 To monitor means "to watch, observe or check" and is
compatible with the power of supervision of the DILG Secretary over local
governments, which is limited to checking whether the local government
unit concerned or the officers thereof perform their duties as per statutory
enactments.28 Besides, any doubt as to the power of the DILG Secretary
to interfere with local affairs should be resolved in favor of the greater
autonomy of the local government. 29
The public respondent judge therefore committed grave abuse of
discretion amounting to lack or excess of jurisdiction in not dismissing the
respondent's Petition for Review for failure to exhaust all administrative
remedies and for lack of jurisdiction.
WHEREFORE, the instant petition is hereby GRANTED. The Order of
the Regional Trial Court dated June 22, 1999 is REVERSED and SET
ASIDE. The Petition for Review filed by the private respondent docketed
as SPL. PROC. NO. 1056 is DISMISSED.
SO ORDERED.
A.M. No. 95-1-01-MTCC January 5, 1998
In Re: REPORT OF COA ON THE SHORTAGE OF THE
ACCOUNTABILITIES OF CLERK OF COURT LILIA S. BUENA,
MTCC, NAGA CITY.
FRANCISCO L. MARASIGAN and FRANCISCO T. DELA
VINA, complainants,
vs.
LILIA S. BUENA as Clerk of Court, MTCC, Naga City, respondent.
PER CURIAM.:
This administrative case arose from a letter-recommendation  dated
1
June 9, 1994 of Francisco L. Marasigan, Director IV, Commission on
Audit, Regional Office No. V, Legaspi City, addressed to the court
administrator recommending that, on the basis of a report and
documents pertaining to the examination of the cash and accounts
of Lilia S. Buena, clerk of court and ex oficio sheriff, Municipal Trial
Courts in Cities (MTCC), Naga City, which found respondent short in
her accountabilities in the amount of P81,650.00, appropriate
administrative action be instituted against her. State Auditor
Francisco T. Dela Viña of the City Auditor's Office in Naga City, who
had conducted the examination of the cash and accounts of
respondents, further executed a sworn affidavit  on June 20, 1994,
2
charging Mrs. Buena with the crime of malversation penalized under
Article 217 of the Revised Penal Code.
In his sworn affidavit, State Auditor Dela Viña declared that in
compliance with the office memorandum of the city auditor dated
October 12, 1993, an examination was conducted on the cash and
accounts of respondent. The corresponding report was submitted
on December 8, 1993 to the City Auditor's Office, Naga City. No
discrepancy appeared in the cash examination report because the
balance of respondent's cash accountabilities as verified tallied with
the balance appearing in the records and documents presented for
verification, which were found to be proper and no order except for
minor discrepancies. However, the City Auditor's Office
subsequently received an anonymous call accusing Mrs. Buena of
misappropriation of public funds. This prompted the office to
confirm and verify said information. Thus, a reexamination of the
accounts of respondent was made in accordance with Section 52 of
P.D. No. 1445 (Opening and Revision of Settled Accounts). A
comparison was made among the following official records: (1)
MTCC docket book maintained by another personnel where details
of civil cases filed and amounts of docket, sheriff and legal research
fees paid are recorded; (2) cash book maintained by respondent;
and (3) file copies of official receipts issued to acknowledge
collection of the fees mentioned. The examination disclosed that
from the latter part of 1989 until 1993, the total collection reflected in
the cash book was only P8,092.00, while in the docket book it
amounted to P89,742.00, revealing a shortage of P81,650.00. The
auditor discovered that respondent had resorted to alterations of
official receipts by understating the amounts actually paid and
changing the particulars of payment, such that receipt of docket,
sheriff and legal research fees was made to appear as collection of
clearance or certification fees. On April 12, 1994, a demand letter
was served upon respondent for immediate production of the
missing funds and for a written explanation therefor.
Mrs. Buena promptly responded to the demand letter of State
Auditor Dela Viña, confirming the audit findings and admitting fault
and error therefor. She explained that the malversation was resorted
to when her son was hospitalized and had to undergo a major
operation after having been accidentally hit by a stray bullet of a
policeman during a hold-up incident in Manila, making her incur so
much expense beyond her means. She had hoped to be
recompensed by the NAPOLCOM, but had to give up her claim since
postponements of the scheduled conferences with NAPOLCOM in
Manila resulted in additional (travel) expenses. She manifested
willingness to restitute the missing amount, expressing her
wholehearted repentance and further pleading for utmost
consideration and leniency. 3
On July 4, 1994, the City Auditor's Office in Naga City confirmed the
full payment by respondent of the cash shortage. 4
Meanwhile, Deputy Court Administrator Reynaldo L. Suarez referred
to the Fiscal Audit Division (FAD) of the Supreme Court the June 9,
1994 letter of COA Director Marasigan, for report and
recommendation. On October 28, 1994, FAD submitted its
report  which substantially stated that per its audit, other than the
5
shortage discovered by COA which had been fully restituted by
respondent, there was also a deficit in JDF collections amounting to
P29,776.00. Of this amount, respondent has remitted P18,000.00 to
the JDF savings account with the Land Bank of the Philippines,
thus, leaving a balance of P11,776.00 which Mrs. Buena promised to
pay if remittances thereof to PNB could not be accounted for. FAD
further noted the ardent cooperation extended by respondent who
had "shown deep remorse" and "practically beg(ged) for
compassion" and for a second chance.
On the basis of the FAD findings, Deputy Court Administrator
Suarez concluded that "it is sufficiently established that respondent
was short in her cash and accounts as Clerk of Court in the amount
of P81,650.00 and P29,776.00. These amounts were converted by
respondent to her own personal use and benefit allegedly to defray
the hospitalization expenses of her son. The fact of
misappropriation was further confirmed by respondent's payments
of the shortages. Subsequent restitution of the amount
misappropriated is of no moment. Her act constitutes malversation
of public funds under Article 217 of the Revised Penal Code. In
malversation of public funds or estafa, payments, indemnification or
reimbursement of, or compromise on the amounts or funds
malversed or misappropriated after the commission of the crime
affects only the civil liability of the offender but does not extinguish
his criminal liability."
6
In view of the seriousness of the charges which may warrant the
dismissal from service of respondent, and pursuant to the
constitutional requirement of due process, the Court en
banc required Mrs. Buena to comment on the reports of State
Auditor Dela Viña and the FAD.
In her comment  submitted on April 3, 1995, respondent claimed that
7
she had fully restituted the P81,650.00 shortage discovered by the
City Auditor's Office as well as the remaining P11,776.00 deficiency
in JDF collections. By way of explanation, respondent recounted
two successive medical crises that had occurred in her family which
she alone had to shoulder, having been a widow since 1983. Her
youngest child had been allegedly stricken with typhoid fever, from
which it took her several months to recover. While this child was
still in the process of recovery, the unfortunate incident in October
1990, involving her son who was studying in Manila, happened.
Driven by panic to save her son's life, she was forced to use her
collections in the office to come to Manila through the fastest
means possible upon being notified of the accident. To make ends
meet, she also incurred loans from JUSLA and GSIS, subsequent
amortizations for which were deducted from her salary, resulting in
her low take-home pay. To solve her financial dilemma, she was
forced to falsify official receipts.
Respondent professes full repentance of her misdeeds for which
she has sought forgiveness from the Lord Almighty. She pleads for
this Court's compassion and mercy, citing twenty-seven (27) long
and faithful years of public service, and active and voluntary work in
her parish and in the Gift of Love ministry which is dedicated to
helping orphans and the aged. Respondent also provided the Court
with an attestation  from Msgr. Juan A. Alarcon, Jr., parish priest of
8
the Immaculate Conception Parish in Naga City, of her "renewed
commitment . . . to serve the Father the Son and the Holy Spirit."
She prays to be allowed a graceful exit from the service through
optional retirement so that she may continue to provide decently for
her children.
On June 20, 1995, the Court resolved to refer the matter to the Office
of the Court Administrator for evaluation, report and
recommendation. In his Report dated August 25, 1995, the Deputy
Court Administrator, after evaluating the facts and records of the
case and noting respondent's plea for the Court's compassion and
mercy, and prayer for a second chance since she only did the act
complained of out of her desire to save her son's life, opined that
"(t)he end does not justify the means." He added that while the
Court may symphatize with the predicament of the respondent, it
has "no choice but to find her administratively liable for dishonesty
and conduct prejudicial to the best interest of the service." He thus
recommended:
WHEREFORE, in view of the foregoing, it is respectfully
recommended to the Court that respondent Clerk of Court
Lilia S. Buena be found guilty as charged and that she be
DISMISSED from the
service.9
The Court agrees in part with the OCA's recommendation.
That "public office is a public trust" cannot be imprudently
undermined for it is constitutionally enshrined. Public officers and
employees are at all times accountable to the people; must serve
them with utmost responsibility, integrity, loyalty and efficiency;
and must lead modest lives.  The Code of Conduct and Ethical
10
Standards for Public Officials and Employees (R.A. No. 6713)
additionally provides that every public servant shall uphold public
interest over his or her personal interest at all times.  Court
11
personnel, from the presiding judge to the lowliest clerk, are further
required to conduct themselves always beyond reproach,
circumscribed with the heavy burden of responsibility as to free
them from any suspicion that may taint the good image of the
judiciary.  As this Court has recently pronounced, "(t)he nature and
12
responsibilities of public officers enshrined in the 1987 Constitution
and oft-repeated in our case law are not mere rhetorical words. Not
to be taken as idealistic sentiments but as working standards and
attainable goals that should be matched with actual deeds." 13
With these time-honored principles and the substantiated findings
of the Deputy Court Administrator, we are constrained to conclude
that respondent is administratively guilty of the offense charged.
For about a period of four years (late 1989 to 1993), Respondent
Buena systematically deprived the government of public funds
entrusted to her by reason of her public office. She intermittently
altered innumerable official receipts by either understanding
amounts actually paid by litigants or changing the particulars of
their payments. Respondent converted court collections to the
personal use and benefit of her family. No matter how noble and
virtuous might have been the reason that compelled her to resort to
repeated dishonest and wrongful acts, it does not extinguish their
unlawfulness and culpability.
Moreover, respondent is clerk of a court of justice, an officer
described as essential to the judicial system, whose office is the
core of activities, both adjudicative and administrative. She
occupies a position of great importance and responsibility in the
framework of judicial administration. Clerks of court are thus
required to be persons of competence, honesty and probity since
they are specifically imbued with the mandate of safeguarding the
integrity of the court and its proceedings, to earn and preserve
respect therefor, to maintain loyalty thereto and to the judge as
superior officer, to maintain the authenticity and correctness of
court records and to uphold the confidence of the public in the
administration of justice.
14
Respondent's acts of dishonesty and conduct prejudicial to the best
interest of the service, being in the nature of grave offenses, carry
the extreme penalty of dismissal on the first offense.  Mrs. Buena,
15
however, implores compassion and mercy from this Court, pleading
her sincere repentance, full restitution and spiritual renewal. Indeed,
the deputy court administrator observed that respondent's acts
were committed "not with evil design but rather because of dire
need of money to save the life of her son."
We thus find reason to distinguish the instant case from Report on
the Financial Audit in RTC, General Santos City,  and similar cases,
16
where Social Welfare Officer Teresita Blanco of the Regional Trial
Court of General Santos City was dismissed from service with
forfeiture of all leave credits and retirement benefits and
disqualification from reemployment from any government office
including government-owned and controlled corporations. Similarly,
Ms. Blanco was found to have misappropriated for her personal use
JDF collections totaling P196,983.49. Ms. Blanco admitted the
shortage claiming she used part of her collections to (1) defray
hospital expenses of a two-day-old niece who suffered a viral
infection, (2) pay for transportation expenses of her family from
Koronadal, South Cotabato to Bulacan when her brother-in-law died,
and (3) extend as loans to her co-employee. She later repaid
P105,520.87 of the total shortage.
We did not find sufficient justification to exonerate Ms. Blanco from
full culpability under the law. The hospital expenses were incurred
only for a niece, not a direct descendant like a son in the instant
case; and only for a viral infection where the expenses could not be
compared with hospitalization due to a major surgery and another
hospitalization due to deadly typhoid fever as in this case. Since Ms.
Blanco's family could not afford to shoulder travel expenses to
Bulacan, prudence should have prevailed upon them to send only
one or two family members to relay their condolences to a bereaved
relative. Such prudence is consistent with the exhortation for
government workers to lead modest lives. With respect to the use of
public funds for giving loans to employees, this Court, in the same
case, reiterated its ruling in Meneses vs. Sandiganbayan  that the
17
"grant of loans . . . is a clear case of an accountable officer
consenting to the improper or unauthorized use of public funds by
other persons, which is punishable by the law. To tolerate such a
practice is to give a license to every disbursing officer to conduct a
lending operation with the use of public funds."
What actually militated most against the cause of Ms. Blanco was
the absence of a credible showing of her repentance of her
misdeeds and any genuine effort towards the reformation of her life.
In the very recent case of Apiag vs. Judge Cantero,  we
18
emphatically expressed that:
Man is not perfect. At one time or another, he may commit a
mistake. But we should not look only at his sin. We should
also consider the man's sincerity in his repentance, his
genuine effort at restitution and his eventual triumph in the
reformation of this life.
With Mrs. Buena's demonstrated repentance, immediate
full restitution and sincere effort to reform her life, we believe that
the extreme penalty of dismissal with its accessory penalties  is too
19
harsh. The concurrence of these three factors should serve to
mitigate the penalty of respondent. In the exercise of this Court's
discretion, we consider it just and fair to deem respondent resigned
from her post effective immediately. We allow her, however, to claim
leave credits and retirement benefits  in order to provide her and
20
her family a new lease on life, so that she may not succumb again to
dark temptations caused by financial troubles. In the same vein, the
Court's action is without prejudice to her re-employment in any
branch, agency or instrumentality of the government where she may
be qualified.
WHEREFORE, premises considered, Respondent Lilia S. Buena is
hereby DEEMED RESIGNED from the service effective immediately,
without prejudice to re-employment in any branch, instrumentality
or agency of the government, including government-owned and
controlled corporations. Leave credits and retirements benefits may
be released to her in due course.
Let a copy of this decision be attached to respondent's records with
this Court.
SO ORDERED.
A.M. NO. P-01-1523 : October 27, 2006]
CARMELITA CHIONG, Complainant, v. SHERWIN BALOLOY,
Process Server, Regional Trial Court, Branch 130,
Caloocan City, Respondent.
DECISION
YNARES-SANTIAGO, J.:
This administrative matter stems from a sworn affidavit-
complaint dated November 14, 2000 by Carmelita P. Chiong of
No. 198, F. Roxas Street, Caloocan City, charging Process
Server Sherwin M. Baloloy of the Regional Trial Court of
Caloocan City, Branch 130, with Grave Misconduct.
In her Salaysay Ng Pagdedemanda,1 complainant Carmelita
Chiong alleged that on October 12, 2000 at about 4:30 p.m.,
she was at the Aurelio Building at 9th Avenue, Caloocan City to
collect payments from her customers for various merchandise
she sells on installment. She narrated that after she made her
rounds in the 5th and 6th floors of the building, she proceeded to
the IBP Office to collect from Ana Baloloy, wife of respondent,
who is the office secretary. However, when she opened the
door, the same was partially blocked by respondent, thus, she
was not able to enter and was forced to remain standing outside
the premises.
Complainant further averred that from outside the premises,
she communicated by hand signals to Ana the purpose of her
visit, who in turn, gestured that complainant return the next
day for the payment. Complainant, however, remained outside
the door pleading with Ana to pay her whatever amount she
could spare. At that point, respondent irritably said: "Bakit ba
ang kulit mo? Sinabi ng wala ah. Pasensiya ka nagpapahulog ka
eh. Kasama iyan." Instead of reacting in kind because
respondent was a long-time acquaintance, complainant calmly
replied that she was not there to collect from him. At that
juncture, the now infuriated respondent suddenly faced her
saying: "Talagang ang kulit mo ah, lumayas ka nga rito!" then
shoved her outside with his hands.
Ana attempted to pacify respondent but the latter became more
incensed and choked the complainant, then punched her left
jaw. Owing to the force of the blow, complainant fell down and
passed out. She regained consciousness at about the same time
respondent returned to the place of the altercation and who,
upon seeing her thus revived, scornfully said to her: "O ano,
nakita mo na ang hinahanap mo." Still not content with uttering
such contemptuous remarks, respondent punched her again
hitting her at her left jaw and before going out the door turned
and threatened her thus: "Huwag na huwag ka nang makababa-
baba rito at papatayin na kita!"
The incident prompted complainant to file criminal charges for
Slight Physical Injuries, docketed as Criminal Case No.
2040592 and Light Threats3 docketed as Criminal Case No.
204060, with Branch 49 of the Metropolitan Trial Court of
Caloocan City.
The complaint was subsequently referred4 to respondent by the
Office of the Court Administrator (OCA) for comment.
In his Comment dated May 31, 20015 respondent vehemently
denied the charges against him. He narrated that when he
arrived at the IBP Office where his wife was working, he saw
complainant through the glass window of the door slapping his
wife. Complainant further threw to the ground his wife's
personal belongings, some materials and books belonging to the
IBP.
Respondent attempted to open the door but it was locked.
Meanwhile, complainant continued throwing his wife's personal
effects to the floor while shouting invectives at the latter. Arlene
Santos, his wife's friend who was present at the time noticed
respondent and immediately opened the door. Upon entering
the room, respondent pushed complainant away from his wife
and asked complainant why she was acting thus. Instead of
explaining her acts, complainant berated respondent which
prompted the latter to demand that complainant get out of the
office or he would drag her out himself. Complainant complied
but she picked up a pair of scissors at the desk of respondent's
wife and gave him a 'dagger look' before getting out of the
office.
Respondent denied punching complainant or threatening her
because he only told her: "Lumabas ka rito, kung hindi ay
hihilahin kitang palabas."
Respondent likewise filed criminal complaints against
complainant for Slander by Deed, docketed as Criminal Case
No. 204626 and Malicious Mischief, docketed as Criminal Case
No. 204627.6 These cases were consolidated with the criminal
complaints for Slight Physical Injuries and Light Threats filed by
complainant against respondent.7
In a Resolution dated November 26, 2001,8 the case was
docketed as a regular administrative matter and referred to the
Executive Judge of the Regional Trial Court of Caloocan City for
investigation, report and recommendation.
Executive Judge Victoria Isabel A. Paredes submitted her Report
and Recommendation dated August 17, 20059 finding
respondent liable for Grave Misconduct with recommendation
that respondent be suspended for three months without pay
with a stern warning that a repetition of the same offense would
be dealt with more severely.10
In a Resolution dated September 19, 2005,11 the Court resolved
to require the parties to manifest within five days from notice
whether they are willing to submit the case for resolution based
on the pleadings filed.
On October 25, 2005, respondent filed a Manifestation with Ex
Parte Motion To Allow Filing of Memorandum12 with prayer that
he be given a period of 30 days within which to file the
memorandum which was granted.13
Thereafter, the instant administrative case was referred to the
OCA which sustained the findings and the penalty recommended
by the Investigating Judge.
The issue for resolution is whether or not the conduct of
respondent warrants the imposition of administrative sanctions.
Respondent insists that during the incident, he was acting in his
capacity as a private individual and not as an officer of the
court. Thus, if there is any liability on his part, he could only be
held liable in his private capacity but not as public officer and
employee. He cannot therefore be held liable for misconduct
because the incident is not in any way connected with the
discharge of his official duties as a process server.14
The argument is flawed. It also betrays respondent's cavalier
regard and deficient grasp of the burden and extent of his
duties and responsibilities as an employee of the Judiciary.
Respondent must always bear in mind that government service
is people-oriented.15 Belligerent behavior has no place in
government service16 where employees are bound by the rules
of proper and ethical behavior and are expected to act with self-
restraint and civility at all times, even when confronted with
rudeness and insolence.17
In Pablejan v. Calleja,18 the Court emphasized that employees
of the judiciary should be living examples of uprightness not
only in the performance of their official duties, but also in their
personal and private dealings with other people, so as to
preserve at all times the good name and standing of courts in
the community. Any scandalous behavior or any act that may
erode the people's high esteem for the judiciary unbecomes an
employee.
In the instant case, the incident transpired in the building where
the courts and the IBP Office were located. ςηαñrοblεš  Î½Î¹r† Ï…αl  lαω  lιbrαrà ¿
While the incident was not related to the functions of
respondent as a process server, however, the same happened
at around 4:30 p.m. or during office hours.19 The investigating
judge found respondent's denial of the charges unconvincing
but noted the possibility that he may have acted in defense of
his wife. However, she observed that respondent had no reason
to punch the complainant twice as he was being restrained by
Atty. Edwin Lagac, of the RTC-OCC, yet he still returned to the
IBP Office to hit the complainant again.ςηαñrοblεš  Î½Î¹r† Ï…αl  lαω  lιbrαrà ¿
Time and again we have held that court personnel must, at all
times, act with strict propriety and proper decorum so as to
earn the public's regard for the judiciary.20 While knightly
gallantry is not demanded of respondent, neither is he given a
license to act like a lout more so towards a woman.
Respondent's churlish conduct towards complainant certainly
cannot be countenanced. To be sure, boorishly striking a lady
not once but twice while hurling threats and epithets towards
her is behavior characterizing a cad, not a court employee.
Complainant's obstinacy and refusal to stop importuning
respondent's wife for the payment of the latter's debt is no
excuse for him to assault the complainant like a common street
thug. A court peopled by ruffians is an unflattering image the
judiciary can do without. Hooliganism has no place in the
judicial service. A process server being a judicial employee, is
expected to act with prudence, restraint, courtesy and dignity. A
deviation from these salutary standards of conduct undeniably
constitutes a malfeasance prejudicial to the best interest of the
service. It cannot be excused even by a strongly held conviction
of respondent that he was the one grievously wronged.21
WHEREFORE, in view of all the foregoing, Sherwin Baloloy,
Process Server of the Regional Trial Court of Caloocan City,
Branch 130 is hereby SUSPENDED for Six (6) Months without
pay and STERNLY WARNED that a repetition of the same or
similar offense will be dealt with more severely.
SO ORDERED.

Respondent must remember the oft-quoted reminder to all who

work and seek employment in the judiciary that the conduct
and behavior of everyone charged with the administration and
disposition of justice - from the presiding judge to the lowliest
clerk - should be circumscribed with the heavy burden of
responsibility, free from any suspicion that may taint the well-
guarded image of the judiciary. Being among those at the
grassroots of our judicial machinery, process servers are in
close contact with the litigants, hence, their conduct should all
the more maintain the prestige and the integrity of the Court.22

The image of a court of justice is necessarily mirrored in the

conduct, official or otherwise, of the men and women, from the
judge to the lowest employee. It then becomes the imperative
sacred duty of each and every one in the court to maintain its
good name and standing as a true temple of justice. Thus,
every employee of the court should be an exemplar of integrity,
uprightness and honesty.23 The Court will not tolerate or
condone any conduct of judicial agents or employees which tend
to or actually diminish the faith of the people in the Judiciary.

This is not the first time that the respondent has been
administratively charged. In Baloloy v. Flores,24 respondent was
fined for fighting with a co-worker employed in another branch
of the trial court. In addition to the instant case, respondent is
also involved in two other pending administrative cases of grave
misconduct.25 Respondent obviously has not learned how to
curb his bellicose predisposition. A more severe penalty is thus
in order.