Justice of the Peace Position During Abnormal Times

EN BANC
[G.R. No. L-2456. January 25, 1949.]
NICOLAS B. POTOT , petitioner, vs . JUAN L. BAGANO, the SECRETARY

OF JUSTICE and the JUDGE OF COURT OF FIRST INSTANCE OF
CEBU , respondents.
Ramon Deterte, Gaudioso P. Montecillo and Cecilio V. Gillamac for petitioner.

Solicitor General Felix Bautista Angelo and Solicitor Felix V. Makasiar for
respondent, Secretary of Justice, and Juan L. Bagano for himself.
SYLLABUS
1. PUBLIC OFFICERS; JUSTICE OF THE PEACE; ABANDONMENT OF

POSITION; ACCEPTANCE OF INCOMPATIBLE PUBLIC OFFICE. — Acceptance of other
public offices incompatible with judicial functions operate as an abandonment of the
position of a justice of the peace. (Floresca vs. Quetulio, supra and Maddumba vs.
Ozaeta, supra, p. 345).
DECISION
TUASON , J : p
This is a quo warranto proceeding instituted by a prewar justice of the peace

whose position was lled by the appointment and con rmation of the respondent after
liberation.
The facts bring this case within the authority of Luis Floresca vs. Amparo
Quetulio, supra, p. 128 and Domingo Maddumba vs. Roman Ozaeta, supra, p. 345.
Petitioner's acceptance of other public of ces incompatible with judicial functions
operate as an abandonment of the position to which he seeks reinstatement.
It results that petitioner was appointed justice of the peace for the municipality
of Pilar, Province of Cebu, in November, 1933. He held that of ce until April 24, 1944
(Exhibits 1 and 2), when he ceased to act for reasons not disclosed in the record. On
August 19, 1945, the jurisdiction of the justice of the peace of San Francisco, Poro and
Tudela, Vicente de Roda, was extended to comprise the municipality of Pilar (Exhibits 3,
4, and 5). Vicente de Roda was later succeeded by Felixberto R. Sosmeña, who was
justice of the peace until April 14, 1946. From the latter date to September 1, 1946, the
of ce of justice of the peace of Pilar was vacant. It was on the last mentioned date that
the respondent entered upon the performance of his duties in that office.
Petitioner joined the police force of the City of Cebu as lieutenant from June 11,
1947, to January 15, 1948. From January 16, 1948, to April 24 of the same year, he was
Assistant Provincial Warden (Exhibits A, B and C.)
CD Technologies Asia, Inc. 2016 cdasiaonline.com
That petitioner was forced to seek or accept these jobs in order to live would not
alter the case even if we assume, for the sake of argument, that economic necessity
was a valid plea. The government was not the only source of gainful employments that
could have tide him over while waiting, as he says, for reappointment to his old position.
The truth is that for almost two years after liberation, before he accepted other
government positions, he got along outside the government. All that time, when his old
position was without any permanent incumbent, he did not enter public service, and he
did not raise a nger to claim his judicial post. It would seem that he lost all interest in
the same until he changed his mind or found he had made a mistake.
The petition is dismissed with costs.
Moran, C.J., Paras, Feria, Pablo, Perfecto, Bengzon, Briones and Montemayor, JJ.,
concur.

EN BANC
[G.R. No. L-1793. November 9, 1948.]
JOSE ABAYA , petitioner, vs . ALEJANDRINO A. ALVEAR , respondent.
Eulalio Resurreccion for petitioner.

First Assistant Solicitor General Roberto A. Guianzon and Solicitor Martiniano P.
Vivo for respondent.
SYLLABUS
1. PUBLIC OFFICERS; ABANDONMENT OF OFFICE BY ACCEPTANCE OF

ANOTHER; RULE DURING ABNORMAL CONDITIONS. — Because of the abnormal
conditions obtaining in Ilocos Sur, particularly the towns of Cervantes and Angaki
during the war, there is reason to believe that the changing of the original circuit
occupied by petitioner A by eliminating therefrom the town of Angaki, was a mere
temporary expedient to meet the exigencies of the administration of justice in that area,
under abnormal conditions, and that his acceptance of the new post did not involve or
entail abandonment of his old position. The doctrine laid down in the case of Teves vs.
Sindiong (81 Phil., 658) applied and reiterated.
DECISION
MONTEMAYOR , J : p
There is no dispute as to the following facts: The petitioner Jose Abaya now
sixty-one years of age and a member of the Bar, was on October 9, 1920 appointed to
the post of justice of the peace of the towns of Cervantes, Angaki, Concepcion and San
Emilio, Province of Ilocos Sur and he quali ed for the position and discharged the
duties thereof. In 1923, the municipalities of Concepcion and San Emilio were excluded
from his territorial jurisdiction and he continued to discharge his judicial functions as
justice of the peace of Cervantes and Angaki up to December 31, 1941, a few days
before the Japanese occupation forces arrived in the town of Cervantes. On April 17,
1943, said petitioner was given an appointment as justice of the peace of Cervantes
only, by Jorge B. Vargas, chairman of the "Philippine Executive Commission." Then on
May 1, 1944, Jose P. Laurel as "President of the Republic of the Philippines" extended
to him another appointment as justice of the peace of the same town of Cervantes,
Ilocos Sur. Abaya evidently accepted these appointments made during the Japanese
occupation and continued to discharge his judicial functions as justice of the peace but
only for the town of Cervantes, until the month of November, 1944 when, because of the
threat of military clashes between Japanese forces on one side and the Filipino
guerrillas on the other, he left his post and fled to the mountains for safety.
After liberation and upon the establishment of what the parties term a military
government, in Ilocos Sur, Abaya was appointed by the military governor as justice of
the peace of the municipalities of Cervantes and Angaki, Ilocos Sur. Then, on August 1,
1945, Mauro Versoza, acting as delegate of the Department of the Interior, designated
the petitioner temporary justice of the peace of Cervantes and Angaki, the appointment
to "terminate as soon as your successor is appointed by the central o ce." Upon the
restoration of peace and order and upon normal functioning of the Commonwealth
government, petitioner was, on February 8, 1946, given an ad interim appointment by
President Sergio Osmeña to the post of justice of the peace for the towns of Cervantes
and Angaki. However, when this appointment was submitted to the Commission on
Appointments, it was turned down. Abaya was given another appointment as justice of
the peace by President Manuel Roxas for the same municipalities of Cervantes and
Angaki on December 5, 1946 but said appointment was left without being acted upon
by the Commission on Appointments.
On June 13, 1947 and presumably because of the failure of the Commission on
Appointments to approve the appointment of the petitioner, President Manuel Roxas
extended an ad interim appointment to the post of justice of the peace of Cervantes
and Angaki in favor of the respondent Alejandrino A. Alvear who accepted said
appointment and assumed o ce on July 5, 1947. Alvear's appointment was later
con rmed by the Commission on Appointments. In respondent's answer he claims that
when he assumed o ce the petitioner was nowhere to be found because he had gone
to the town of Candon, Ilocos Sur to reside. He also states that the petitioner has
already asked the Secretary of Justice to have his application for retirement approved.
The petitioner claims that shortly after the respondent had assumed o ce as
justice of the peace of Cervantes and Angaki, he, the petitioner wrote a letter to His
Excellency, the President of the Philippines protesting against his being deprived of his
old post, although, no copy of said letter could be found in the o ce of the Assistant
Executive Secretary of Malacañan. The petitioner further claims that when he failed to
receive any answer to his letter to the President, he conferred with Honorable Elpidio
Quirino, then Vice- President of the Philippines and Senator Prospero Sanidad regarding
his being restored to the position for justice of the peace of Cervantes and Angaki.
Failing to receive immediate relief, he commenced these quo warranto proceedings in
this Court for the purpose of having him declared the legal and lawful justice of the
peace for the towns already referred to and have the respondent ousted therefrom. His
complaint was received by this Court on November 14, 1947.
The theory of respondent is that petitioner had lost his right, title or valid claim to
the position of justice of the peace of Cervantes and Angaki by reason of abandonment,
consisting in his acceptance of the position of justice of the peace of Cervantes only,
during the Japanese occupation, said position being different and distinct from the
circuit of Cervantes and Angaki held by him before the war; his acceptance of the
position of temporary justice of the peace of Cervantes and Angaki under an
appointment extended by a Special Delegate of the Department of the Interior; his
departure from his circuit of Cervantes and Angaki, and his residence in Candon, Ilocos
Sur; lastly, his insistence on the approval of his retirement and, his inaction for several
months from June 30, 1947 to November 30, 1947, evidencing his intention to abandon
his office.
This Court has recently decided a case whose facts are very similar to the
present case. We refer to the case of Teves vs. Sindiong 1 , promulgated on October 21,
1948. In said case the facts are related in the statement which we quote:
On December 19, 1914, Pablo Teves was appointed justice of the peace of
Luzurriaga, Negros Oriental. He quali ed for and assumed said o ce on January
14, 1915, and had since discharged the duties of said o ce up to the outbreak of
the Paci c war in December, 1941. Negros Oriental, or part thereof, was
subsequently occupied by the Japanese army. The plaintiff followed and stayed
with the guerrillas in the free area and continued to discharge his duties as justice
of the peace of that part of Luzurriaga not occupied by the invaders. However,
sometime in October 1943, the plaintiff was arrested by a Japanese patrol and
was later taken down to Dumaguete, capital of Negros Oriental, and there kept a
virtual prisoner. Because of plaintiff's absence from the free area of Luzurriaga
where a free government had been organized and maintained by the guerrilla
forces, the Deputy Governor of said government appointed Atty. Mauro Edrial as
justice of the peace of said municipality of Luzurriaga. Edrial quali ed for the
position and performed the duties thereof from July 8, 1944 to January 4, 1945.
In October, 1944, Pablo Teves managed to escape from his con nement in
Dumaguete, went to the free area of Luzurriaga, and asked the Deputy Governor
under the guerrilla Government to restore to him his post of justice of the peace of
Luzurriaga. He was advised that before he could be reinstated he should secure a
clearance certi cate from the guerrilla military authorities to prove his loyalty to
the Filipino cause. Plaintiff secured the necessary clearance, and, on January 4,
1945, he was appointed justice of the peace of the municipalities of Luzurriaga
and Bacong, 6th Administrative District, by Deputy Governor Margarito Teves,
which appointment was approved by Alfredo Montelibano, Governor of the
Islands of Negros and Siquijor. Plaintiff Teves resumed, or rather quali ed for
said office and discharged the duties thereof.
On May 1, 1945, Teves was again appointed acting justice of the peace of
Luzurriaga, Bacong and Dauin, by special agent Jose M. Aldeguer of the
Department of the Interior, by virtue of the authority vested in that Department by
the President of the Commonwealth of the Philippines, said appointment bearing
the approval of the Commanding O cer of PCAU 24. On the same day, the
plaintiff quali ed for and assumed said o ce. Then, on December 26, 1945,
Teves was again appointed by President of the Philippines Sergio Osmeña, as ad
interim justice of the peace of Luzurriaga, Negros Oriental. Teves again quali ed
for and assumed said o ce. However, when his appointment was submitted to
the Commission on Appointments, it was not con rmed. Despite this non-
confirmation, plaintiff Teves continued in office.
In the meantime, and presumably because of his non-con rmation of
Teves' appointment, the President of the Philippines nominated the defendant
Perpetuo A. Sindiong justice of the peace of Luzurriaga and said nomination was
con rmed by the Commission on Appointments on September 3, 1946. Sindiong
took the corresponding oath on September 14, 1946, and then advised the
plaintiff of his appointment and demanded of him the surrender of the o ce.
Plaintiff refused to comply with this demand, insisting that he was the legitimate
justice of the peace of Luzurriaga. On being apprised of the situation, the Judge
of the Court of First Instance of Negros Oriental issued a summary order dated
September 23, 1946, directing plaintiff Pablo Teves to make delivery within ten
days of the o ce of justice of the peace of Luzurriaga, together with the
documents and records pertaining thereto to the defendant Perpetuo A. Sindiong,
under penalty of contempt. To avoid unpleasant consequences, Teves
surrendered the o ce and its records to Sindiong on October 7, 1946, and a week
later, or on October 14, he commenced the present action in the Court below."
In that case we held that because of the abnormal conditions obtaining in Negros
Oriental by reason of the war the formation of new judicial circuits including Luzurriaga
— rst, the grouping of Luzurriaga and Bacong, and later the merger of the three towns
of Luzurriaga, Bacong and Dauin, into a circuit — was a makeshift arrangement, a mere
temporary expedient, far from being permanent in nature, but merely designed to meet
and solve the exigencies of the administration of justice in those areas in the best
manner possible under said abnormal conditions; that the law and doctrines governing
abandonment of an office may not and should not be strictly applied to cases occurring
during the war, specially in those areas occupied partly or entirely by the enemy; and
that considering the surrounding circumstances, we ruled that in accepting the post of
justice of the peace of Luzurriaga and Bacong and later of the o ce of justice of the
peace of Luzurriaga, Bacong and Dauin, Teves did not abandon his post of justice of the
peace of Luzurriaga. We also held in said case that the acceptance by Teves of the ad
interim appointment in December, 1945, of his old post of justice of the peace of
Luzurriaga was not a waiver of his right and title to the old post; that he had the right to
hold the same, not under the new ad interim appointment in December, 1945, but by
virtue of his original appointment in 1914, for the reason that one cannot be properly
appointed to the same post that he is already holding under a valid appointment. In
addition, we observed in that case that a subsequent appointment to the post of justice
of the peace extended to one who already had a right to it because of a previous pre-
war appointment under which he had quali ed and discharged his duties, may be
regarded as a mere restitution or restoration of the position which belonged to him;
and that the new appointment can add nothing to or diminish his right to the o ce
conferred by his original appointment.
Applying the doctrine laid down in that case of Teves vs. Sindiong 2 including the
observations made therein, we nd and so hold that because of the abnormal
conditions obtaining in Ilocos Sur, particularly the towns of Cervantes and Angaki
during the war, there is reason to believe that the changing of the original circuit
occupied by petitioner Abaya by eliminating therefrom the town of Angaki, was a mere
temporary expedient to meet the exigencies of the administration of justice in that area,
under abnormal conditions, and that his acceptance of the new post did not involve or
entail abandonment of his old position. In proof of the temporary nature of the change
in the circuit is the fact that when conditions returned to normal, the old circuit
comprising the towns of Cervantes and Angaki was restored. And it is signi cant to
note that when said old circuit was restored, the petitioner was likewise restored to his
old post by appointments extended by two administrations, that of President Osmeña
and the administration of President Roxas.
We may add, as we have stated in the case of Teves vs. Sindiong that in those
days Abaya could not very well dictate his terms of acceptance of the positions
extended to him. He had to take them as they came, accepting the position of justice of
the peace of Cervantes alone during the occupation and accepting a new appointment
to his old circuit during the days following the liberation. He had no freedom of choice.
The important thing is that he never intended to abandon his old post and all along
during the Japanese occupation and even after liberation he continued in the judicial
service and exercised and discharged the functions of the o ce of justice of the peace
in the same place and area which he did before the war. And, we may also say that his
appointment by President Osmeña and later by President Roxas, to his old post of
justice of the peace of Cervantes and Angaki though not con rmed by the Commission
on Appointments, was unnecessary; that it did not and could not add anything to or
diminish his right to the o ce conferred by his original appointment, but that said
appointments may be regarded as a mere restitution of the o ce which belonged to
him but which he failed to hold because of, and during the war.
We nd no merit in the other grounds advanced by the respondent. When the
respondent assumed the o ce of justice of the peace of Cervantes and Angaki, there
was no reason nor obligation on the part of the petitioner to continue residing in
Cervantes. He was prompted to reside in Candon perhaps because it was his native
town. Furthermore, his asking the government to act upon his application for retirement
may not be regarded as evidence of intent to abandon his o ce. We understand that
such applications for retirement had, years ago, been led by many government
o cials in order to secure the bene ts of the retirement law. And his urging the
government to act upon such application was perhaps a mere precaution for purposes
of security in case that he lost his o ce against his will. His very letter to the Secretary
of Justice in this regard (Exhibit 7) states that his successor to the post of justice of
the peace of Cervantes and Angaki was appointed without his knowledge. And to
further demonstrate that he did not intend to lose said o ce without effort or ght, he
filed these proceedings not long after he was deprived thereof.
In view of the foregoing, we hold and decide that the petitioner Jose Abaya never
abandoned his o ce of justice of the peace of Cervantes and Angaki, Province of
Ilocos Sur, and that he is entitled to the same by virtue of his pre-war appointment; and
respondent Alejandrino A. Alvear is hereby ordered to deliver said o ce and all the
records appertaining thereto to said petitioner. No pronouncement as to costs. So
ordered.
Moran, C.J., Paras, Feria, Pablo, Perfecto, Bengzon, Briones and Tuason, JJ.,
concur.
Footnotes
1. 81 Phil., 658.
2. 81 Phil., 658.

EN BANC
[G.R. No. L-2050. October 21, 1948.]
PABLO TEVES , plaintiff-appellant, vs . PERPETUO A. SINDIONG ,

defendant-appellee.
Lamberto L. Macias for appellant.

Antonio Lacson for appellee.
SYLLABUS
1. PUBLIC OFFICERS; JUDICIAL OFFICERS, TENURE OF OFFICE; JUSTICE OF

THE PEACE; RIGHT TO REASSUME HIS OFFICE AFTER THE WAR. — "Members of the
Supreme Court and all judges of inferior courts shall hold o ce during good behavior,
until they reach the age of seventy years, or become incapacitated to discharge the
duties of their o ce," — a justice of the peace appointed and quali ed before the war,
but who ceased to discharge his duties as such at the outbreak thereof, may, after
liberation or after the war, resume and continue in his o ce until he either reaches the
age limit, becomes incapacitated, resigns from o ce, is properly removed therefrom,
or abandons the same.
2. ID.; ABANDONMENT OF OFFICE, BY ACCEPTANCE OF ANOTHER. —
Abandonment of an o ce by reason of the acceptance of another, in order to be
effective and binding, should spring from and be accompanied by deliberation and
freedom of choice, either to keep the old office or renounce it for another.
3. ID.; ID.; RULE DURING WAR. — The law and the doctrines governing
abandonment of an o ce may not and should not be too strictly applied to cases
occurring during war, especially in those areas occupied partly or entirely by the enemy.
4. ID.; ID.; RULE UNDER NORMAL CONDITIONS. — Under normal conditions,
failure to discharge the functions and resume the duties of an o ce may clearly be
regarded as an abandonment and vacation of his o ce, a voluntary relinquishment
through non-user (46 C. J., 980.)
5. ID.; SECOND APPOINTMENT TO THE SAME POST NOT PROPER. — One
cannot be properly appointed to the same post that he is already holding under a valid
appointment.
6. ID.; APPOINTMENT OF ONE TO THE POST OF JUSTICE OF THE PEACE
WHO HAD A PREVIOUS PRE-WAR APPOINTMENT, EFFECT THEREOF. — An
appointment to the post of justice of the peace extended to one who had a right to it
because of a previous pre-war appointment under which he had quali ed and
discharged his duties, may be regarded as a mere restitution or restoration of the
position which belonged to him; and that the new appointment can add nothing to or
diminish his right to the office conferred by his original appointment.
DECISION

MONTEMAYOR , J : p
Pablo Teves, — for the purpose of having himself declared legally entitled to the
o ce of justice of the peace of the municipality of Luzurriaga (now Valencia), Negros
Oriental, and placed in possession thereof, and at the same time of having the
defendant Perpetuo A. Sindiong, the incumbent, declared not entitled to the said o ce,
and so ousted therefrom, — instituted the present quo warranto proceedings in the
Court of First Instance of Oriental Negros. After due hearing, the trial court found and
held that the plaintiff, Pablo Teves, was not entitled to the said o ce of justice of the
peace of Luzurriaga, and that he had no cause of action against the defendant Perpetuo
A. Sindiong, and so it dismissed the case, with costs against the plaintiff. Teves has
now brought the case here on appeal.
The following facts are not disputed: On December 19, 1914, Pablo Teves was
appointed justice of the peace of Luzurriaga, Negros Oriental. He quali ed for and
assumed said o ce on January 14, 1915, and had since discharged the duties of said
o ce up to the outbreak of the Paci c war in December 1941. Negros Oriental, or part
thereof, was subsequently occupied by the Japanese army. The plaintiff followed and
stayed with the guerrillas in the free area and continued to discharge his duties as
justice of the peace of that part of Luzurriaga not occupied by the invaders. However,
sometime in October 1943, the plaintiff was arrested by a Japanese patrol and was
later taken down to Dumaguete, capital of Negros Oriental, and there kept a virtual
prisoner. Because of plaintiff's absence from the free area of Luzurriaga where a free
government had been organized and maintained by the guerrilla forces, the Deputy
Governor of said government appointed Atty. Mauro Edrial as justice of the peace of
said municipality of Luzurriaga. Edrial quali ed for the position and performed the
duties thereof from July 8, 1944 to January 4, 1945. In October 1944, Pablo Teves
managed to escape from his con nement in Dumaguete, went to the free area of
Luzurriaga, and asked the Deputy Governor under the guerrilla Government to restore
him to his post of justice of the peace of Luzurriaga. He was advised that before he
could be reinstated he should secure a clearance certi cate from the guerrilla military
authorities to prove his loyalty to the Filipino cause. Plaintiff secured the necessary
clearance, and, on January 4, 1945, he was appointed justice of the peace of the
municipalities of Luzurriaga and Bacong, 6th Administrative District, by Deputy
Governor Margarito Teves, which appointment was approved by Alfredo Montelibano,
Governor of the Islands of Negros and Siquijor. Plaintiff Teves resumed, or rather
qualified for said office and discharged the duties thereof.
On May 1, 1945, Teves was again appointed acting justice of the peace of
Luzurriaga, Bacong and Dauin, by special agent Jose M. Aldeguer of the Department of
the Interior, by virtue of the authority vested in that Department by the President of the
Commonwealth of the Philippines, said appointment bearing the approval of the
Commanding O cer of PCAU 24. On the same day, the plaintiff quali ed for and
assumed said o ce. Then, on December 26, 1945, Teves was again appointed by
President of the Philippines Sergio Osmeña, as ad interim justice of the peace of
Luzurriaga, Negros Oriental. Teves again quali ed for and assumed said o ce.
However, when his appointment was submitted to the Commission on Appointments, it
was not confirmed. Despite this non-confirmation, plaintiff Teves continued in office.
In the meantime, and presumably because of this non-con rmation of Teves'
appointment, the President of the Philippines nominated the defendant Perpetuo A.
Sindiong justice of the peace of Luzurriaga and said nomination was con rmed by the
Commission on Appointments on September 3, 1946. Sindiong took the corresponding
oath on September 14, 1946, and then advised the plaintiff of his appointment and
demanded of him the surrender of the o ce. Plaintiff refused to comply with this
demand, insisting that he was the legitimate justice of the peace of Luzurriaga. On
being apprised of the situation, the Judge of the Court of First Instance of Negros
Oriental issued a summary order dated September 23, 1946, directing plaintiff Pablo
Teves to make delivery within ten days of the o ce of justice of the peace of
Luzurriaga, together with the documents and records pertaining thereto to the
defendant Perpetuo A. Sindiong, under penalty of contempt. To avoid unpleasant
consequences, Teves surrendered the o ce and its records to Sindiong on October 7,
1946, and a week later, or on October 14, he commenced the present action in the court
below.
The trial court held that there is no parity between the present case and that of
Tavora vs. Gavina (79 Phil., 421), cited by the plaintiff in support of his contention, for
the reason that in the Tavora case the petitioner therein, who was appointed justice of
the peace of San Fernando, La Union, before the war and continued to act as such until
the outbreak of the last war, did not accept any new position, which acceptance may be
regarded as an abandonment of his old post. On the other hand, it applied and relied
upon the case of Zandueta vs. De la Costa et al. (66 Phil., 615), wherein this Court held
that when a judge of rst instance, presiding over a branch of a Court of First Instance
of a judicial district by virtue of a legal and valid appointment, accepts another
appointment to preside over the same branch of the same Court of First Instance in
addition to another court of the same category, both of which belong to a new judicial
district formed by the addition of another Court of First Instance to the old one, enters
into the discharge of the functions of his new o ce and draws the salary
corresponding thereto, he abandons his old position and cannot claim to have any right
to reoccupy it when his new appointment was turned down by the Commission on
Appointments. According to the lower court, in accepting rst the position of justice of
the peace of Luzurriaga and Bacong, and afterwards, the position of justice of the
peace of Luzurriaga, Bacong and Dauin, the plaintiff had abandoned his old o ce of
justice of the peace of Luzurriaga alone.
Considering the circumstances under which the appellant herein accepted the
two positions, — rst as justice of the peace of Luzurriaga and Bacong and later as
justice of the peace of Luzurriaga, Bacong and Dauin, — we disagree with the view or
conclusion of the trial court. There is no question that under the doctrine laid down in
the case of Tavora vs. Gavina et al., supra, by virtue of Article VIII, section 9, of the
Philippine Constitution, — which provides that "members of the Supreme Court and all
Judges of inferior courts shall hold o ce during good behavior, until they reach the age
of seventy years, or become incapacitated to discharge the duties of their o ce," — a
justice of the peace appointed and quali ed before the war, but who ceased to
discharge his duties as such at the outbreak thereof, may, after liberation or after the
war, resume and continue in his o ce until he either reaches the age limit, becomes
incapacitated, resigns from o ce, is properly removed therefrom, or abandons the
same. The appellant herein is still below the age of seventy, and none of the other
factors or elements justifying loss of, or separation from, his o ce as justice of the
peace of Luzurriaga, exists with the possible exception of that of abandonment.
If the acts of acceptance in this case, particularly plaintiff's acceptance of the
two new appointments to the position rst as justice of the peace of Luzurriaga and
Bacong and then of Luzurriaga, Bacong and Dauin, had taken place during normal
conditions, there might be force and reason in the position maintained by the lower
court regarding abandonment. If, during normal times, as a result of a judicial
reorganization pursuant to a provision of law, the position of justice of the peace of
Luzurriaga had been abolished, and in its place the o ce of justice of the peace of
Luzurriaga and Bacong had been established, and again under another legal
reorganization the second position was again abolished and in its place a new district
or circuit had been established comprising the municipalities of Luzurriaga, Bacong and
Dauin, and that the plaintiff, without pressure or necessity, or considerations of
Government expediency due to war, had successively accepted said two new positions
or districts, we might agree that he had lost right and title to the old post of justice of
the peace of Luzurriaga by abandonment. However, the conditions obtaining at the time
were far from normal. It seems that the town proper of Luzurriaga was occupied by the
Japanese forces. Instead of rendering service to, or cooperating with, these military
occupants and continuing to serve as justice of the peace of the town proper under
them, Teves joined the guerrillas in the mountains and continued to exercise his judicial
functions and administer justice in the free area of Luzurriaga under the aegis of the
government maintained by the Filipino forces, until he was arrested by the Japanese
soldiers and con ned in Dumaguete. He escaped from con nement and again joined
the guerrillas. Later, for some reason not known to us, at least not appearing in the
record, but possibly because of the limited area occupied by the guerrillas and for
purposes of expediency, the municipalities of Luzurriaga and Bacong were joined so as
to comprise one single judicial district or circuit; and this district was given to Teves
due to his desire and willingness to continue serving the guerrilla Government in his
judicial capacity. But it is extremely doubtful whether, in accepting this post, Teves
acted with complete freedom of choice. Normally, one would prefer to serve as Justice
of the peace of only one town like Luzurriaga, if under complete peace and order in the
poblacion, rather than for two towns with perhaps a bit more pay and a little wider
territorial jurisdiction, but in the mountains, under abnormal conditions and subject to
be continually harassed or even captured and summarily punished by the superior
Japanese occupation forces. Said fear was not imaginary or fanciful, as proven by the
fact that, while serving as justice of the peace in this area, Teves had previously been
captured by the Japanese forces and con ned in Dumaguete. Abandonment of an
o ce by reason of the acceptance of another, in order to be effective and binding,
should spring from and be accompanied by deliberation and freedom of choice, either
to keep the old o ce or renounce it for another. Teves, — and for it he could not well be
blamed, — did not wish to continue staying with, and performing his judicial duties
under the Japanese Government and administration. He preferred to be with the
resistance movement; but, in continuing to serve his people in a judicial capacity, in the
free area, he could not well dictate his terms or his wishes to the guerrilla authorities,
such as insisting that his judicial district comprising only one municipality, that of
Luzurriaga, be preserved. Conditions and reasons of expediency, possibly military,
perhaps called for the merging of the towns of Luzurriaga and Bacong into a new
judicial circuit or district. This district, Teves accepted, because he felt he could not
keep his old office under the Japanese.
Coming to the second appointment extended to him on May 1, 1945. The record
shows that the conditions in Negros Oriental at the time were not yet normal. True,
some areas, and perhaps the greater portion of Negros Oriental, were already occupied
by the American liberation forces. But there was still ghting between said forces and
Japanese troops entrenched in the mountains. For purposes of debt moratorium,
Proclamation No. 9 of President Osmeña (41 Off. Gaz., 205) declared Negros Oriental
free from enemy occupation as of May 30, 1945. The lower court in its decision said
that when Negros Oriental was liberated, plaintiff Teves was discharging his duties of
justice of the peace of the three municipalities of Luzurriaga, Bacong and Dauin. This
goes to show that when the plaintiff accepted his second appointment on May 1, 1945,
Negros Oriental where these three municipalities were located had not yet been
liberated. And to further show that at that time normalcy had not yet returned, the
appointment extended to plaintiff as justice of the peace of Luzurriaga, Bacong and
Dauin, was made not by the President of the Philippines but by an agent of the
Department of the Interior and under the approval of the PCAU (Philippine Civil Affairs
Unit), a body which was administering civil affairs for the Army. And it was not a
permanent appointment either, but merely as acting justice of the peace. And it is
significant that these two appointments, — the first by the guerrilla Government, and the
second, by the Department of the Interior, — were not ad interim appointments subject
to con rmation by the Commission on Appointments, as regular appointments should
have been.
All these circumstances and considerations forcibly bring out the fact that the
formation of a judicial circuit including Luzurriaga, — rst, the grouping of the
municipalities of Luzurriaga and Bacong, and later the merger of the three towns of
Luzurriaga, Bacong and Dauin, into a circuit, — was a makeshift arrangement, a mere
temporary expedient, far from being permanent in nature, but merely designed to meet
and solve the exigencies of the administration of justice in those areas in the best
manner possible under said abnormal conditions. And the best proof that all that
arrangement and setup was temporary in nature, is the fact that in December 1945,
when conditions were much better, and were fast becoming normal, the old judicial
arrangement or setup was restored, — namely, the o ce of justice of the peace of
Luzurriaga alone. And it is signi cant to note that the person who was appointed to this
post was none other than the original pre-war incumbent, the plaintiff herein.
The law and the doctrines governing abandonment of an o ce may not and
should not be too strictly applied to cases occurring during war, especially in those
areas occupied party or entirely by the enemy. How many public o cials, upon the
outbreak of or during the war, left their o ces in the cities, particularly Manila, and
returned to their native towns, but who were not held as having abandoned said o ces,
and were recalled to them after liberation? In that case of Tavora vs. Gavina et al.,
already cited, Tavora who had been appointed justice of the peace of San Fernando, La
Union, and had been discharging his judicial functions as such, ceased to perform his
duties at the outbreak of the war. True, he was later appointed to the same post by the
Chairman of the Philippine Executive Commission and he served under said
appointment, but, in July 1944 he ceased to act in said o ce and did not resume his
duties until April 1945. Under normal conditions, such act or conduct may clearly be
regarded as an abandonment and vacation of his o ce, a voluntary relinquishment thru
nonuser (46 C. J., 980-1). And yet, it was not even insinuated that Tavora had
abandoned his o ce for failure and for ceasing to discharge his functions and for
nonuser.
Considering all the circumstances surrounding this case, we believe and hold that
in accepting the post of justice of the peace of Luzurriaga and Bacong and later the
o ce of justice of the peace of Luzurriaga, Bacong and Dauin, the appellant herein did
not abandon his post of Justice of the peace of Luzurriaga.
But one might contend that plaintiff's acceptance of the ad interim appointment
by President Osmeña in December 1945, of his old post of justice of the peace of
Luzurriaga, was a waiver of his right and title to the old post and showed his willingness
to abide by the implications and consequences of that new ad interim appointment. In
the rst place, in view of our conclusion that the appellant did not abandon his old post,
we are of the opinion and so declare that he has the right to hold the same, not under
the new ad interim appointment in December 1945, but by virtue of his original
appointment in 1914. One cannot properly be appointed to the same post that he is
already holding under a valid appointment. Incidentally, it may even possibly be
maintained, and not without reason, that the last appointment for the post of justice of
the peace of Luzurriaga in December 1945, was invalid for the additional reason that
the President could not extend an appointment to one who, under a new appointment,
is not duly quali ed. Plaintiff herein is not a member of the Bar, although, having been
appointed before the approval of the Constitution of the Philippines and of
Commonwealth Act No. 101 which lastly amended section 207 of the Revised
Administrative Code on October 28, 1936, which require membership in the Bar as a
quali cation for the position of justice of the peace, he was not bound by this legal
requisite as far as his appointments in 1914 is concerned. However, a new appointment
like that appointment extended to him in December 1945 for the post of justice of the
peace would come under this requirement, — that is to say, that no person who is not a
lawyer may be appointed to the o ce of justice of the peace after the approval of the
Philippine Constitution and of Commonwealth Act No. 101 amending section 207 of
the Revised Administrative Code. In this connection, we might cite the ruling found in
Corpus Juris, which reads:
"Where a duly elected officer subsequently accepts an appointment to the
same office under an invalid statute, there is no abandonment, but rather an
attempted fortification of his possession of the office." (46 C. J., 981.)
One other consideration. It was held by this Court in the cases of Garces vs. Bello
et al. (80 Phil., 153), and Singson vs. Quintillan (80 Phil., 242), the facts of which are
similar to those in the present case, that an appointment to the post of justice of the
peace extended to one who had a right to it because of a previous pre-war appointment
under which he had quali ed and discharged his duties, may be regarded as a mere
restitution or restoration of the position which belonged to him; and that the new
appointment can add nothing to or diminish his right to the o ce conferred by his
original appointment. It may well be said that the appointment extended to the plaintiff
in December 1945 was a mere restitution of the office which belonged to him but which
he failed to hold because of, and during the war.
In conclusion, we nd and hold that the appellant here had not abandoned his
post of justice of the peace of Luzurriaga, Negros Oriental, because of his acceptance
and discharge of the position first of justice of the peace of Luzurriaga and Bacong, and
later, of justice of the peace of Luzurriaga, Bacong and Dauin, under abnormal
conditions due to the last war, which new positions successively occupied were
temporary in nature and intended as a mere temporary expedient; and that his last
appointment in December 1945, to his original o ce of justice of the peace of
Luzurriaga, was unnecessary if not invalid, and his acceptance of the same would not in
any way affect his right to hold said office under his original appointment in 1914.
Reserving the decision appealed from, the plaintiff-appellant Pablo Teves is
hereby declared to be legally entitled to the o ce of justice of the peace of Luzurriaga
(now Valencia), Negros Oriental, and the defendant-appellee Perpetuo A. Sindiong is
hereby ordered to deliver said o ce and all the records appertaining thereto to said
plaintiff-appellant. No pronouncement as to costs. So ordered.
Moran, C.J., Ozaeta, Paras, Perfecto, Pablo and Tuason, JJ., concur.
Feria and Briones, JJ., concur in the result.
EN BANC
[G.R. No. 39224. October 24, 1933.]
SIMPLICIO SERAFIN , plaintiff-appellee, vs . JUSTO C. CRUZ , defendant-

appellant.
Norberto Manikis and Rivera, Pascual & Alba, for appellant.

Nicanor P. Nicolas and Camus & Delgado, for appellee.
SYLLABUS
1. QUO WARRANTO; CHIEF OF POLICE. — The extraordinary legal remedy of

quo warranto does not lie against a duly and legally appointed chief of municipal police
who has duly quali ed for and has entered upon the performance of his duties, in order
to reinstate another who has been legally dismissed from the said office.
DECISION
VILLA-REAL , J : p
This is an appeal taken by the respondent Justo C. Cruz from the judgment
rendered by the Court of First Instance of Bulacan, the dispositive part of which reads
as follows:
"Wherefore, it is but just and equitable that judgment be rendered in this
case in favor of the plaintiff Simplicio Sera n, declaring that he is entitled to hold
the o ce of chief of police of the municipality of Quiñgua, and it is hereby
ordered that he be reinstated therein with all the privileges and emoluments
appurtenant thereto in conformity with the law, from the date of this decision.
"The defendant herein cannot be sentenced to pay the costs on the ground
that the municipal president who is liable therefor, was not included as a party
defendant herein. Neither can the defendant be deprived of the emoluments
already collected by him on the ground that he rendered services and collected
such emoluments on the strength of the appointment issued in his favor by the
municipal president himself."
In support of his appeal the appellant assigns the following alleged errors in the
decision of the trial court, to wit:
"I. The lower court erred in not declaring that the decision rendered by
the former provincial board of Bulacan, dated October 3, 1931, being nal and
conclusive, the plaintiff is not entitled to any other remedy except to invoke the
authority of intervention of the Governor-General of the Philippine Islands in case
of manifest abuse of discretion on the part of said provincial board.
"II. The lower court erred in not declaring that the actual provincial
board of the Province of Bulacan has no jurisdiction over the case.
"III. The lower court erred in not declaring that the decision of the
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actual provincial board of the Province of Bulacan, dated January 21, 1932,
decreeing the reinstatement of the plaintiff in the position of chief of police of the
municipality of Quiñgua, Bulacan, is null and void.
"IV. The lower court erred in not nding that by virtue of the nal
decision of the former provincial board of Bulacan, dated October 3, 1931, ousting
the herein plaintiff from the position of chief of police of the municipality of
Quiñgua, Bulacan, said municipality had, in accordance with law, the right to
declare said position vacant and to appoint another one in lieu of said plaintiff.
"V. The lower court erred in declaring that the former provincial board
of Bulacan had committed errors in decreeing the complete separation of the
plaintiff from the service as chief of police of the municipality of Quiñgua,
Bulacan.
"VI. The lower court erred in ordering the reinstatement of the plaintiff
Simplicio Sera n in the position of chief of police of the municipality of Quiñgua,
Bulacan, with all the privileges and emoluments from the date of the decision of
the court, December 20, 1932, and in not declaring that herein defendant Justo C.
Cruz is the rightfull chief of police of said municipality, entitled to all privileges
and emoluments corresponding to his position from his appointment until he be
legally ousted from said position."
The following pertinent facts are necessary for the solution of the questions
raised in this appeal, to wit:
On January 12, 1931, Father Victorino Lopez, Parish Priest of Quiñgua, Bulacan,
led with the provincial board of Bulacan, administrative charges against the appellee
herein, Simplicio Sera n, in his capacity as chief of police of the aforesaid municipality
of Quiñgua, Bulacan, for negligence in the performance of his duties. Inasmuch as said
charges were endorsed to the municipal council of Quiñgua for appropriate
investigation and decision, said municipal council, after conducting the necessary
investigation of the case, issued on February 13, 1931, resolution No. 9 (Exhibit 1)
exonerating the said complainant herein.
From this resolution, the complainant therein, Father Victorino Lopez, appealed to
the provincial board then composed of Jose Padilla, provincial governor, and Aniceto
Crisostomo and Teo lo Sauco, members, which after due hearing, rendered judgment
therein on October 3, 1931, the dispositive part of which reads as follows.
"Wherefore, the board is of the opinion that due to his ine ciency,
misconduct, and record, the therein respondent should be separated from the
service, particularly during this time when there are so many eligibles, and
government institutions are entitled to select the o cials who have a keen sense
of responsibility.
"Therefore, it is hereby ordered that the respondent chief of police of the
municipality of Quiñgua be dismissed.
"It is so resolved."
Teo lo Sauco, member of the aforesaid provincial board, dissented from the
resolution in question in the belief that dismissal was too severe a penalty therefor and
that suspension for six months would be sufficient.
In view of the foregoing, on October 14, 1931, the municipal president of
Quiñgua, Anselmo D. Garcia, issued executive order No. 1, series of 1931, dismissing
the said appellee chief of police of the municipality of Quiñgua, Simplicio Sera n, from
the service and appointed the herein respondent-appellant, Justo C. Cruz, permanent
chief of police of the municipality of Quiñgua (Exhibit F). After having been submitted to
the new council of Quiñgua for approval during its session of October 16, 1931, said
appointment was definitely confirmed by a vote of four to three.
The records do not show the exact date on which the herein plaintiff-appellee
received notice of the decision of the provincial board, dated October 3, 1931, and of
the order of his dismissal dated October 14, 1931, but the postmaster of the
municipality of Quiñgua certi ed (Exhibit 2) that a registered letter, No. 979, addressed
to the plaintiff-appellee was delivered to the latter on October 14, 1931.
The term of o ce of the members of the provincial board which issued order of
dismissal dated October 3, 1931, expired of October 15, 1931, and they were
substituted by Cirilo B. Santos, provincial governor, and Juan Suerte Felipe and Jose G.
de Jesus, members, who were elected on June 5, 1931.
Fifteen days after October 14, 1931, that is on October 29, 1931, the plaintiff-
appellee led with the new provincial board a motion for reconsideration of the
decision ordering his dismissal rendered by the former provincial board on October 3,
1931, and of which he was notified on October 14, 1931.
The new provincial board granted the said motion for reconsideration, and after
conducting a new hearing of the case, rendered judgment on January 21, 1931,
exonerating the plaintiff- appellee of the charge of "negligence in the performance of his
duties", and by an executive order dated May 3, 1932, addressed to the president of the
municipality of Quiñgua, ordered the immediate reinstatement of the said appellee in
the o ce of chief of police of the municipality of Quiñgua. In a communication dated
May 7, 1932, addressed to the aforesaid provincial board, the said municipal president
informed the latter that he had already permanently appointed another in place of the
dismissed chief of police.
The purpose of the present appeal is to have the respondent herein expelled
from the o ce of chief of police of the municipality of Quiñgua and the herein appellee
reinstated therein.
The principal question to decide in the present appeal is not whether or not a
provincial board may reconsider a decision rendered by a former board but whether or
not a duly appointed and quali ed chief of municipal police who has entered upon the
performance of his duties as such, may be dismissed therefrom in order to reinstate
another who had been dismissed from such o ce pursuant to a legal, valid and
conclusive decision.
Section 2272 of the Administrative Code, as amended by section 2 of Act No.
3206, provides the following:
"SEC. 2272. Suspension and removal of members of municipal police.
— Members of the municipal police shall not be removed and, except in cases of
resignation, shall not be discharged except for misconduct or incompetency,
dishonesty, disloyalty to the United States or Philippine Government, serious
irregularities in the performance of their duties, and violation of law or duty, and in
such cases charges shall be preferred under oath by the municipal president or by
any other person and investigated by the municipal council, or a committee of
three councilors designated for said purpose by a majority of the council, in public
hearing, and the accused shall be given opportunity to make their defense. . . ."
Mechem in "Law of Public Offices and Officers", page 294, paragraph 461, states:
". . .When the appointing power has once acted and the appointee has
accepted the o ce and done what is required of him upon its acceptance, his title
to the o ce becomes complete, and he can then be removed only in the regular
way." (Marbury vs. Madison, 1 Cranch [U.S.], 137.)
In the case at bar, the herein defendant-appellant, Justo C. Cruz, was permanently
appointed chief of police of Quiñgua by the president of the said municipality, to ll the
vacancy created by the dismissal from said o ce of the herein plaintiff-appellee, as
ordered by the provincial board of Bulacan after the necessary proceedings provided
by law. The appointment in question was confirmed by the municipal council of Quiñgua
after the appointee had quali ed and entered upon the performance of his duties as
chief of police. In accordance with the authority cited above, the defendant-appellant
has acquired a vested right in the o ce and cannot be removed nor dismissed
therefrom except for any of the causes designated and in accordance with the
proceedings established by law. The legal provision quoted above expressly states that
members of the municipal police shall not be removed and, except in cases of
resignation, shall not be discharged from the service, except for misconduct or
incompetency, dishonesty, disloyalty to the United States or Philippine Government,
serious irregularities in the performance of their duties, and violation of law or duty. The
reinstatement of the dismissed o cial is not one of the causes designated by the law
for the removal therefrom of one who has been permanently appointed to substitute
the former.
In view of the foregoing considerations, we are of the opinion and so hold that
the extraordinary legal remedy of quo warranto does not lie against a duly and legally
appointed chief of municipal police who has duly quali ed for and has entered upon the
performance of his duties, in order to reinstate another who has been legally dismissed
from the o ce in question. Wherefore, the judgment appealed from is hereby reversed
and the quo warranto proceedings dismissed, with the costs against the appellee. So
ordered.
Avanceña, C.J., Malcolm, Hull and Imperial, JJ., concur.

SECOND DIVISION
[G.R. No. L-3081. October 14, 1949.]
ANTONIO LACSON , petitioner, vs . HONORIO ROMERO ET AL. ,

respondents.
Cruz, Puno & Lacson for petitioner.

The respondent Provincial Fiscal in his own behalf.
Solicitor General Felix Bautista Angelo and Assistant Solicitor Inocencio Rosal for
respondent Judge.
Avena, Villaflores & Lopez for other respondents.
SYLLABUS
1. PUBLIC OFFICERS; PROVINCIAL FISCAL; APPOINTMENT OF; INVOLVES

SEVERAL STEPS. — The appointment of provincial scal to be complete involves
several steps. First, comes the nomination by the President. Then to make that
nomination valid and permanent, the Commission on Appointments of the Legislature
has to con rm said nomination. The last step is the acceptance thereof by the
appointee by his assumption of o ce. The rst two steps, nomination and
con rmation, constitute a mere offer of a post. They are acts of the Executive and
Legislative departments of the Government. But the last necessary step to make the
appointment complete and effective rests solely with the appointee himself. He may or
he may not accept the appointment or nomination as there is no power in this country
which can compel a man to accept an office.
2. ID.; ID.; APPOINTMENT AND TRANSFER TO ANOTHER PROVINCE IS
EQUIVALENT TO REMOVAL OR SEPARATION; ILLEGALITY. — The appointment and
transfer of a provincial scal from one province to another would mean his removal or
separation from the rst province. The reason is that a scal is appointed for each
province. Said removal is illegal and unlawful unless for cause as provided by law and
the Constitution, and the con rmation of the nomination by the Commission on
Appointments does not and cannot validate the removal, since the Constitution is
equally binding on the Legislature.
3. ID.; ID.; NATURE OF OFFICE. — A provincial scal who is nominated and
appointed by the President with the consent of the Commission on Appointments, is
under section 671 (b ) of the Revised Administrative Code included in the unclassi ed
service of the Civil Service.
4. ID.; ID.; CONSTITUTIONAL PROHIBITION; PRESIDENT WITH
CONCURRENCE OF COMMISSION ON APPOINTMENTS MAY NOT REMOVE FISCAL
WITHOUT CAUSE. — A provincial scal as a civil service o cial may not be removed
from o ce even by the President who appointed him, and even with the consent of the
Commission on Appointments, except for cause. Article XII, section 4 of the
Constitution provides that no o cer or employee in the Civil Service shall be removed
or suspended except for cause as provided by law. This constitutional prohibition is a
limitation to the inherent power of the Executive to remove those civil service o cials
whom he appoints.
5. ID.; ID.; TENURE OF OFFICE. — A provincial scal duly appointed, until he
reaches the age of 65 has the right to continue in o ce unless sooner removed for
cause. In other words, he enjoys tenure of o ce, which is duly protected by statute and
by the Constitution.
6. ID.; REMOVAL OR SUSPENSION OF A CIVIL SERVICE OFFICIAL OR
EMPLOYEE, REQUISITES OF. — By the mandate of sections 64 and 694 of the Revised
Administrative Code, before a civil service o cial or employee can be removed, there
must rst be an investigation at which he must be given a fair hearing and an
opportunity to defend himself.
7. ID.; REMOVAL WITHOUT LAWFUL CAUSE IN THE GUISE OF TRANSFER
FROM ONE OFFICE TO ANOTHER WITHOUT TRANSFEREE'S CONSENT, EFFECT OF. —
To permit circumvention of the constitutional prohibition (Art. XII, sec. 4) by allowing
removal from o ce without lawful cause, in the form or guise of transfers from one
o ce to another, or from one province to another, without the consent of the
transferee, would blast the hopes of those young civil service o cials and career men
and women, destroy their security and tenure of o ce and made for a subservient,
discontented and ine cient civil service force that sways with every political wind that
blows and plays up to whatever political party is in the saddle. That would be far from
what the framers of our Constitution contemplated and desired. Neither would that be
our concept of a free and e cient Government force, possessed of self-respect and
reasonable ambition.
DECISION
MONTEMAYOR , J : p
Involved in these quo warranto proceedings led directly with this Court is the
O ce of Provincial Fiscal of Negros Oriental, and the right to said position as between
the petitioner Antonio Lacson and the respondent Honorio Romero.
The facts necessary for the decision in this case may be stated as follows:
Petitioner Lacson was on July 25, 1946, appointed by the President of the Philippines,
provincial scal of Negros Oriental. The appointment was con rmed by the
Commission on Appointments on August 6, 1946. He took his oath of o ce on August
10, 1946, and thereafter performed the duties of that office.
Upon recommendation of the Secretary of Justice, on May 17, 1949, the
President nominated petitioner Lacson to the post of provincial scal of Tarlac. On the
same date, the President nominated for the position of provincial scal of Negros
Oriental respondent Romero. Both nominations were simultaneously con rmed by the
Commission on Appointments on May 19, 1949.
Lacson neither accepted the appointment nor assumed the o ce of scal of
Tarlac. But respondent Romero took his oath of o ce (the post of scal of Negros
Oriental) in Manila on June 16, 1949, noti ed the Solicitor General of the fact, and
thereafter proceeded to his station. Upon arrival at Dumaguete City, capital of Negros
Oriental, he noti ed Lacson of his intention to take over the o ce the following day, but
Lacson objected. On June 24, 1949, Romero appeared in criminal case No. 4433 before
Judge Gregorio S. Narvasa. In said appearance, petitioner Lacson led his objection
and asked that Romero's appearance be stricken from the record. After Romero had
exhibited his credentials as required by the court, Judge Narvasa on the same day
denied the petition of Lacson and recognized respondent Romero as the provincial
scal of Negros Oriental. On June 27, 1949, Romero appeared in Special Proceedings
No. 630 before Judge Felicisimo Ocampo. Lacson again objected to said appearance
but the court overruled his objection. This will explain why Judges Narvasa and Ocampo
were made respondents in these quo warranto proceedings.
When petitioner Lacson requested payment of his salary for the period from June
16 to June 23, 1949 as provincial scal of Negros Oriental, Angel Paguia, Provincial
Auditor and L. J. Alfabeto, Provincial Treasurer turned down his claim and instead paid
respondent Romero the salary for the position of provincial scal from June 16, 1949,
and continued paying it to him periodically up to the present time. Their action was
based on a reply given to their query, by the Secretary of Justice to the effect that
Romero was the provincial scal of Negros Oriental. This is the reason why the Auditor
and the Treasurer of Negros Oriental were likewise made respondents in these
proceedings.
The purpose of the present action is to establish the right of the petitioner to the
post of provincial scal of Negros Oriental and to oust the respondent Romero
therefrom. The petition and the memorandum in support thereof among other things
contain the following prayer:
"(1) Recognizing the right of petitioner Antonio Lacson to hold and
occupy the position of provincial fiscal of Negros Oriental;
"(2) Declaring the respondent Honorio Romero guilty of usurpation,
unlawful holding and exercise of the functions and duties of provincial scal of
Negros Oriental; ordering the exclusion of said respondent from said o ce; and
ordering him to surrender to herein petitioner all records and papers appertaining
to said office that may have come into his possession;
"(3) Ordering respondents provincial treasurer L. J. Alfabeto and
provincial auditor Angel Paguia, or their successors in o ce, to pay herein
petitioner his salary commencing June 16, 1949, up to the present time and until
herein petitioner shall have legally ceased to be the incumbent of said office; and
"(4) Ordering respondent Honorio Romero to pay the costs."
Incidentally, and to serve as background in the consideration of this case, it may
be stated that when the nominations of Lacson and Romero to the posts of Provincial
Fiscal of Tarlac and Negros Oriental, respectively, were made in May, 1949, Negros
Oriental was a second class province with a salary of P5,100 per annum for the post of
provincial scal, while Tarlac was rst class simple with a higher salary of P5,700 per
annum for its provincial scal. There is therefore reason to believe that the nomination
of Lacson to Tarlac or rather his attempted transfer from Negros Oriental to Tarlac was
intended and considered as a promotion. At least, there is nothing in the record to show
that he was being deliberately eased out of or removed from his post in Negros
Oriental. However, after the appointments and con rmations, the President raised the
province of Negros Oriental to the category of First Class A province with retroactive
effect as of January 1, 1949. It is alleged by respondent Romero that after the ling of
the present petition, Tarlac was likewise raised to the category of First Class B province
on July 15, 1949 so that thereafter the salary for provincial scal in both province is the
same, namely, P6,000 each. This might be one of the reasons why petitioner Lacson
declined to accept his nomination to the Province of Tarlac, preferring to remain at his
old post of provincial fiscal of Negros Oriental.
The determination as to who is entitled to the position of provincial scal of
Negros Oriental, depends upon the correct answers to several queries such as: (1) Did
the Commission on Appointments alone, without his acceptance nomination of Lacson
to Tarlac and its con rmation by the thereof create a vacancy in the post of provincial
scal of Negros Oriental so that Romero could be lawfully appointed to said vacancy?
(2) Does the nomination of Lacson to Tarlac and its con rmation by the Commission
on Appointments serve as and is equivalent to a removal of Lacson as scal of Negros
Oriental? If in the a rmative, was that removal valid and lawful? (3) Could the President
who appointed Lacson as provincial scal of Negros Oriental remove him at will and
without cause, or did the post of provincial scal in general have attached to it a tenure
of office during which the incumbent may not be removed except for cause?
The appointment to a government post like that of provincial scal to be
complete involves several steps. First, comes the nomination by the President. Then to
make that nomination valid and permanent, the Commission on Appointments of the
Legislature has to con rm said nomination. The last step is the acceptance thereof by
the appointee by his assumption of o ce. The rst two steps, nomination and
con rmation, constitute a mere offer of a post. They are acts of the Executive and
Legislative departments of the Government. But the last necessary step to make the
appointment complete and effective rests solely with the appointee himself. He may or
he may not accept the appointment or nomination. As held in the case of Borromeo vs.
Mariano, 41 Phil., 327, "there is no power in this country which can compel a man to
accept an o ce." Consequently, since Lacson has declined to accept his appointment
as provincial scal of Tarlac and no one can compel him to do so, then he continues as
provincial scal of Negros Oriental and no vacancy in said o ce was created, unless
Lacson had been lawfully removed as such fiscal of Negros Oriental.
As to the second question, it is obvious that the intended transfer of Lacson to
Tarlac on the basis of his nomination thereto, if carried out, would be equivalent to a
removal from his o ce in Negros Oriental. To appoint and transfer him from one
province to another would mean his removal or separation from the rst province. The
reason is that a scal is appointed for each province (sec. 1673, Rev. Adm. Code), and
Lacson could not well and legally hold and occupy the two posts of scal of Tarlac and
Negros Oriental simultaneously. To be scal for Tarlac must mean his removal from
Negros Oriental.
In the case of Nicolas vs. Alberto, 51 Phil., 370, this Court held that "a transfer of
a Justice of the Peace outside of the municipality of which he is appointed is in legal
effect a combined removal and appointment." (Decision in this case was reversed by
the U. S. Supreme Court [279 U. S., 141], but on other grounds, leaving the doctrine on
transfer and removal undisturbed.) When the transfer is consented to and accepted by
the transferees, then there would be no question; but where as in the present case, the
transfer is involuntary and objected to, then it is necessary to decide whether the
removal is lawful.
What is the nature of the o ce of provincial scal? Is it included in the Civil
Service? The answer is, undoubtedly, in the a rmative. Article XII, section 1 of our
Constitution provides that "a Civil Service embracing all branches and subdivisions of
the Government shall be provided by law." Section 668 of the Administrative Code as
amended by Com. Act No. 177, sec. 6, provides that "the Philippine Civil Service shall
embrace all branches and subdivisions of the Government;" and section 670 of the
same Code provides that "persons in the Philippine Civil Service pertain either to the
classi ed or unclassi ed service." Section 671 of the same code as amended by
Commonwealth Act No. 177, section 8 in part provides as follows:
"Sec. 671. Persons embraced in unclassi ed service . — The following
officers and employees constitute the unclassified service:
"(a) A secretary, a sergeant-at-arms, and such other o cers as may be
required and chosen by the National Assembly in accordance with the
constitution.
"(b) O cers, other than the provincial treasurers and Assistant
Directors of Bureaus or Offices, appointed by the President of the Philippines, with
the consent of the Commission on Appointments of the National Assembly, and
all other o cers of the Government whose appointments are by law vested in the
President of the Philippines alone.
"(c) Elective officers."
xxx xxx xxx
From the foregoing, we nd that the post of provincial scal in the Philippines is
included in subsection (b ) above-quoted particularly the underlined portion thereof. The
law regarding appointment to the post of provincial scal is contained in section 66 of
the Administrative Code which provides that "the Governor-General (now the President)
shall appoint among other o cials, Secretaries to Departments, Provincial Treasurers,
Provincial Fiscals, Register of Deeds, etc." And, Article VII, section 10(3) of the
Constitution provides that the President shall nominate and with the consent of the
Commission on Appointments shall appoint among other o cials, "all other o cers of
the Government whose appointments are not herein otherwise provided for" which
clearly includes the o ce of provincial scal. It is therefore clear that a provincial scal
who is nominated and appointed by the President with the consent of the Commission
on Appointments, as was petitioner Lacson, is, under section 671(b) above-quoted,
included in the unclassified service of the Civil Service.
The next question arises as to whether the President even with the concurrence
or consent of the Commission on Appointments may remove a provincial scal without
cause. The Constitution itself denies said right. Article XII, section 4 of said instrument
provides that "no o cer or employee in the civil service shall be removed or suspended
except for cause as provided by law." This constitutional provision is reproduced word
for word in the rst paragraph of sec. 694 of the Rev. Adm. Code, as amended by
Commonwealth Act No. 177, section 22.
In order to better appreciate the meaning of this constitutional provision as well
as the purpose behind it, it is necessary to delve, though ever so lightly into the framing
of this basic instrument. The Committee on Civil Service of the Constitutional
Convention which drafted the Constitution in its report and in advocating the merit
system in connection with a civil Service system among other things stated the
following:
"The adoption of the 'merit system' in government service has secured
efficiency and social justice. It eliminates the political factor in the selection of
civil employees which is the first essential to an efficient personnel system. It
insures equality of opportunity to all deserving applicants desirous of a career in
the public service. It advocates a new concept of the public office as a career
open to all and not the exclusive patrimony of any party or faction to be doled out
as a reward for party service." (Aruego's Framing of the Constitution, Vol. II, p.
886.)
"The 'merit system' was adopted only after the nations of the world took
cognizance of its merits. Political patronage in the government service was
sanctioned in 1789 by the constitutional right of the President of the United
States to act alone in the matter of removals. From the time of Andrew Jackson,
the principle of the 'To the victor belong the spoils' dominated the Federal
Government. The system undermined moral values and destroyed administrative
efficiency." . . . (Ibid. p. 886.)
"Since the establishment of the American Regime in the Philippines we
have enjoyed the bene ts of the 'merit system.' The Schurman Commission
advocated in its report that 'the greatest care should be taken in the selection of
o cials for administration. They should be men of the highest character and
tness, and partisan politics should be entirely separated from the government.'
The fth act passed by the Philippine Commission created a Board of Civil
Service. It instituted a system here that was far more radical and thorough than
that in the United States. The Governors-General after William Taft adopted the
policy of appointing Filipinos in the government regardless of their party
a liation. As the result of these 'the personnel of the Civil Service had gradually
come to be one of which the people of the United States could feel justly proud.'
"Necessity for Constitutional Provisions. — The inclusion in the constitution
of provisions regarding the 'merit system' is a necessity of modern times. As its
establishment secures good government, the citizens have a right to expect its
guarantee as a permanent institution. . . . (Ibid. p. 887.)
"Separations, Suspensions, Demotions, and Transfers . — The 'merit
system' will be ineffective if no safeguards are placed around the separation and
removal of public employees. The Committee's report requires that removals shall
be made only for 'causes and in the manner provided by law.' This means that
there should be bona de reasons and action may be taken only after the
employee shall have been given a fair hearing. This affords to public employees
reasonable security of tenure." (Ibid. p. 890.)
It is contended on behalf of the respondent that the power of removal is inherent
in the power to appoint and that consequently, the President had the right to remove
the petitioner as provincial scal of Negros Oriental and transfer him to Tarlac.
Ordinarily, where there is no constitutional limitation the contention of the respondent
would be tenable; but where as in the Philippines and as already stated the Constitution
forbids the removal of a civil service o cial or employee like the petitioner except for
cause as provided by law, said right of the Chief Executive is quali ed and limited. That
constitutional prohibition is a limitation to the inherent power of the Executive to
remove those civil service o cials whom he appoints. This is the reason why we nd
the American cases cited in support of respondent's theory to be inapplicable. The
prohibition against removal except for cause contained in our Constitution has no
counterpart in the Federal Constitution of the United States.
Again, it is contended that the provincial scal is not appointed for a xed term
and that there is no tenure of o ce attached to the post. This contention is without
merit. As we have already stated, a provincial scal as a civil service o cial may not be
removed from o ce even by the President who appointed him, and even with the
consent of the Commission on Appointments, except for cause. Considering this
security and protection accorded a provincial scal from arbitrary and illegal removal
from o ce, and considering the provisions of section 1673 of the Administrative Code
which among other things provides that "after December 31, 1932 any city scal or
assistant city scal of Manila, provincial scal or deputy provincial scal over 65 years
of age shall vacate his o ce, the logical inference is that a provincial scal duly
appointed, until he reaches the age of 65 has the right to continue in o ce unless
sooner removed for cause. In other words, he enjoys tenure of o ce, which is duly
protected by statute and by the Constitution.
The last part of the report of the Committee on Civil Service of the Constitutional
Convention which we have reproduced mentions this tenure of o ce in its last
sentence, — "This affords public employees reasonable security or tenure." Speaking of
tenure of o ce of members of the civil service in the Philippines, Professor Sinco in his
book on Philippine Political Law has the following to say:
"Security of Tenure.
"Nothing can be more demoralizing to a group of civil servants than the
fear that they might be removed from their posts any time at the pleasure of their
superiors. It goes without saying that a demoralized force is an ine cient force.
Security of tenure is necessary in order to obtain e ciency in the civil service. For
this purpose the Constitution provides that 'no o cer or employee in the Civil
Service shall be removed or suspended except for cause as provided by law.'
(Philippine Political Law by Sinco, p. 350.)
"In our discussion of the functions of the President, it was there shown that
the President's power of removal, which is implied from his power of
appointment, is very comprehensive and almost unlimited when it affects o cers
holding purely executive positions. This class of o cers, under the rule laid down
in the Meyers case, may be removed by the President at practically any time and
for any cause. No statutory check, such as a requirement that his order of removal
should be subject to the previous consent of the senate or the Commission on
Appointments before it could be effective, may be validly placed upon his right to
exercise this power. But the provision of the Constitution of the Philippines, which
has no counterpart in the Constitution of the United States, makes the tenure of
o cers and employees in the Civil Service secure even against the President's
power of removal and even if the o cers should hold purely executive o ces.
The result is that the scope of the rule established in the Meyers case is
considerably modi ed and reduced when applied in this jurisdiction. It may only
apply in case of executive o cers appointed by the President and not belonging
to the Civil Service as established by the Constitution." (Ibid. pp. 350-351.)
It is also contended by the respondent that neither the Constitution nor the laws
passed by the Legislature mention or enumerate the cause or causes for which a civil
service o cial may be removed from o ce. We nd this claim untenable. Section 686
of the Revised Administrative Code, as amended by Commonwealth Act No. 177,
section 18 provides that falsi cation by a civil service o cial of his daily time record
shall render him liable to summary removal and subject him to prosecution as provided
by law. A like provision for removal and prosecution is found in section 687 of the same
Code, as amended by Commonwealth Act 177, section 19 which deals with political
activity and contribution to political fund by civil service employees. Then we have Rule
XIII, section 6 of the Civil Service Rules providing thus:
"6. Discourtesy to private individuals or to Government o cers or
employees, drunkenness, gambling, dishonesty, repeated or agrant violation or
neglect of duty, notoriously disgraceful or immoral conduct, physical incapacity
due to immoral or vicious habits, incompetency, ine ciency, borrowing money by
superior o cers from subordinates or lending money by subordinate to superior
o cers, lending money at exhorbitant rates of interest, willful failure to pay just
debts, contracting loans of money or other property from merchants or other
persons with whom the bureau of the borrower is in business relations, pecuniary
embarrassment arising from reprehensible conduct, the pursuits of private
business, vocation, or profession without permission in writing from the chief of
the bureau or o ce in which employed and of the Governor-General (now the
President) or proper head of Department, disreputable or dishonest conduct
committed prior to entering the service, insubordination, pernicious political
activity, offensive political partisanship or conduct prejudicial to the best interest
of the service, or the willful violation by any person in the Philippine civil service
of any of the provisions of the Revised Civil Service Act or rules, may be
considered reasons demanding proceedings to remove for cause, to reduce in
class or grade, or to in ict other punishment as provided by law in the discretion
of the Governor-General (now the President) or proper head of Department. No
chief of a bureau or o ce shall knowingly continue in the public service any
subordinate o cer or employee who is ine cient or who is guilty of any of the
above-named derelictions, without submitting the facts through the Director to the
Governor-General (now the President) or proper head of Department."
The law and civil service rules above referred to clearly provide the causes or
some of the causes for removal of civil service officials; and they answer the contention
of the respondent on this point.
Section 64 of the Revised Administrative Code, providing for the particular
powers and duties of the Governor-General, now the President of the Republic, in part
reads as follows:
xxx xxx xxx
"(b) To remove o cials from o ce conformably to law and to declare
vacant the o ces held by such removed o cials. For disloyalty to the United
States (now the Philippines), the Governor-General (now the President) may at
any time remove a person from any position of trust or authority under the
Government of the Philippine Islands.
"(c) To order, when in his opinion the good of the public service so
requires, an investigation or any action or the conduct of any person in the
Government service, and in connection therewith to designate the o cial,
committee, or person by whom such investigation shall be conducted."
xxx xxx xxx
Section 694 of the Administrative Code as amended by Commonwealth Act No.
177, section 22, reads as follows:
"Sec. 694. Removal or suspension. — No officer or employee in the civil
service shall be removed or suspended except for cause as provided by law.
"The President of the Philippines may suspend any chief or assistant chief
of a bureau or o ce, and in the absence of special provision, any other o cer
appointed by him, pending an investigation of charges against such o cer or
pending an investigation of his bureau or o ce. With the approval of the proper
head of department, the chief of a bureau or o ce may likewise suspend any
subordinate or employee in his bureau or under his authority pending an
investigation, if the charge against such subordinate or employee involves
dishonesty, oppression, or grave misconduct or neglect in the performance of
duty."
From the sections above-quoted, the inference is inevitable that before a civil
service o cial or employee can be removed, there must rst be an investigation at
which he must be given a fair hearing and an opportunity to defend himself. In the case
of petitioner Lacson, the record fails to show, neither is there any claim that he has been
charged with any violation of law or civil service regulation, much less investigated and
thereafter found guilty so as to authorize or warrant removal from office.
In view of the foregoing, we are constrained to nd and to hold that the transfer
of Lacson to Tarlac by his nomination to the post of provincial scal of that province
was equivalent to and meant his removal as provincial scal of Negros Oriental; that
said removal was illegal and unlawful for lack of valid cause as provided by law and the
Constitution; that the con rmation of the nomination by the Commission on
Appointments did not and could not validate the removal, since the Constitution is
equally binding on the Legislature; that a provincial scal is a civil service o cial or
employee whose tenure of o ce is protected by the Constitution; and that Antonio
Lacson could not be compelled to accept his appointment as provincial scal of Tarlac;
that having declined said appointment, he continued as provincial scal of Negros
Oriental; that inasmuch as he neither left, abandoned nor resigned from his post as
provincial scal of Negros Oriental, there was no vacancy in said post to which the
respondent could be legally appointed; and that consequently, the appointment of the
respondent was invalid.
In this connection we may point out that the Constitution having clearly limited
and quali ed the Presidential power of removal in order to protect civil service o cials
and employees, secure to them a reasonable tenure of o ce and thus give the country
the benefit of an efficient civil service based on the merit system, this Court could do no
less than give effect to the plain intent and spirit of the basic law, specially when it is
supplemented and given due course by statutes, rules and regulations. To hold that civil
service o cials hold their o ce at the will of the appointing power subject to removal
or forced transfer at any time, would demoralize and undermine and eventually destroy
the whole Civil Service System and structure. The country would then go back to the
days of the old Jacksonian Spoils System under which a victorious Chief Executive,
after the elections could if so minded, sweep out of o ce, civil service employees
differing in political color or a liation from him, and sweep in his political followers and
adherents, especially those who have given him help, political or otherwise. A Chief
Executive running for re-election may even do this before election time not only to
embarrass and eliminate his political enemies from o ce but also to put his followers
in power so that with their o cial in uence they could the better help him and his party
in the elections. As may be gathered from the report of the Committee of the
Constitutional Convention which we have reproduced at the beginning of this opinion,
the framers of our Constitution, at least the Civil Service Committee thereof,
condemned said spoils system and purposely and deliberately inserted the
constitutional prohibition against removal except for cause, which now forms the basis
of this decision.
There are hundreds, yea, thousands of young, ambitious people who enter the
Civil Service not temporarily or as a makeshift, but to make a career out of it. They give
the best years of their lives to the service in the hope and expectation that with faithful
service, loyalty and some talent, they may eventually attain the upper reaches and levels
of official hierarchy.
To permit circumvention of the constitutional prohibition in question by allowing
removal from o ce without lawful cause, in the form or guise of transfers from one
o ce to another, or from one province to another, without the consent of the
transferee, would blast the hopes of these young civil service o cials and career men
and women, destroy their security and tenure of o ce and make for a subservient,
discontented and ine cient civil service force that sways with every political wind that
blows and plays up to whatever political party is in the saddle. That would be far from
what the framers of our Constitution contemplated and desired. Neither would that be
our concept of a free and e cient Government force, possessed of self-respect and
reasonable ambition.
Incidentally, it happens that the petitioner is one of those we had in mind as
making a career of the Government service. He claims and it is not denied by the
respondent, that twenty years ago he entered the service of the Government as register
of deeds of Negros Oriental, then was promoted to the post of scal, rst of the
Province of Palawan, then of Surigao, later of Antique and lastly of Negros Oriental in
1946. He does not want to accept the transfer to the Province of Tarlac. His only
alternative would be to resign, sacri ce his twenty years of continuous, faithful service
and his career, and perchance his hope that some day, he might yet be promoted to the
judiciary. Not a very bright prospect or picture, not only to him but to other civil service
officials in like circumstances.
But in justice to the President and the Commission on Appointments, let it be
stated once again that it would seem that the transfer of the petitioner to Tarlac was
not meant and intended as a punishment, a disciplinary measure or demotion. It was
really a promotion, at least at the time the appointment was made. Only, that later, due
to a change in the category of Oriental Negros as a province, the transfer was no longer
a promotion in salary. And yet the respondent and the Solicitor General insisted in the
transfer despite the refusal of the petitioner to accept his new appointment.
In conclusion, we nd and declare the petitioner to be the provincial scal of
Negros Oriental, and the respondent not being entitled to said post, is hereby ordered
to surrender to the petitioner all the records or papers appertaining to said o ce that
may have come into his possession. The respondent provincial auditor and provincial
treasurer are hereby ordered to pay to the herein petitioner his salary from June 16,
1949, and as long as said petitioner continues to be the legal incumbent to the o ce in
question. Considering that the respondent appears to have acted in good faith and
relied upon his nomination by the President and the con rmation thereof by the
Commission on Appointments, as well as the position taken by the Solicitor General,
who sustained his appointment, we make no pronouncement as to costs.
Ozaeta, Paras, Feria, Bengzon, Tuason and Torres, JJ., concur.
REYES , J.:
I concur in the result.

EN BANC
[G.R. No. 2122. September 13, 1905.]
PEDRO T. ACOSTA , plaintiff-appellant, vs . DAVID FLOR , defendant-

appellee.
W.A. Kincaid, for appellant.

Hartigan, Marple, Solignac & Gutierrez, for appellee.
SYLLABUS
1. ACTION TO REMOVE A PUBLIC OFFICER. — A private person can not

maintain an action for the removal of a public officer unless he alleges that he is
entitled to the same office. (Secs. 197 to 216, Code of Civil Procedure.)
2. ID — When such an allegation is made but not proven, the court is justified
in dismissing the case without inquiring into the right of the defendant to retain the
office.
DECISION
MAPA , J : p
It is alleged in the complaint that at the municipal elections held on the 1st day of
December, 1903, in the town of Laoag, Province of Ilocos Norte, the plaintiff and the
defendant were candidates for the o ce of municipal president of the said town; that
as a result of the said election the plaintiff was elected to the said o ce by a majority
of 100 votes, and that notwithstanding this fact the defendant has usurped said o ce
and unlawfully held the same since the plaintiff was the person entitled to the exercise
of said o ce. The complaint further sets out other acts in regard to illigalities alleged
to have been committed during the election. The prayer of the complaint is to the effect
that judgment be entered against the defendant, excluding him from the exercise of
such o ce and that the plaintiff be declared to be entitled to the same and that he be
given possession thereof, and for such other and further relief as the facts in the case
would warrant in favor of the plaintiff.
The case having proceeded to trial, the plaintiff introduced various witnesses, all
and each of whom testi ed to facts which, if true, would more or less gravely affect the
legality of the election. Not a single witness, however, con rmed the allegations
contained in the complaint, to the effect that the plaintiff had obtained a majority of 100
votes at the said election, nor can it be inferred from the evidence introduced by the
plaintiff that he, as a result of the said election, or for any other reason, was entitled to
the office of municipal president of Laoag, now held by the defendant.
In view of the evidence introduced at the trial by the plaintiff, and before the
defendant had presented his, the court, on the latter's motion, acquitted the defendant,
imposing the costs upon the plaintiff. The court based its action upon the following
grounds: (1) That the plaintiff could not maintain the action brought by him because he
had failed to establish his alleged right to the exercise of the o ce in question; and (2)
that there was no necessity to inquire into the right of the defendant to hold the said
o ce for the reason that this question had already been determined by the provincial
board after a consideration of the various protests presented to it in regard to
irregularities committed during the last election held at Laoag for the o ce of
municipal president and other municipal o cials, and for the further reason that the
presumption is that a person holding a public o ce was duly appointed of elected
thereto.
The plaintiff excepted to this ruling of the court, moved for a new trial, and
thereafter brought the case to this court for review. An examination of the evidence of
record supports the nding of the court below to the effect that the plaintiff has failed
to prove in any way, shape, or form that he was entitled to the o ce in question, as
alleged by him in his complaint. There is no dispute upon this question. The appellant,
himself, when the motion of the defendant to dismiss was argued, and from the
decision of which he appealed to this court, clearly admitted that he had failed to
establish his right to the exercise of the o ce in question. (Page 17 of the bill of
exceptions.) And on page 52 of his brief, he also assumes that he had been unable to
establish his alleged right to the office in question.
The question that we have to decide, therefore, is whether, notwithstanding what
has already been said, and notwithstanding the fact that the plaintiff has failed to show
that he had any right to the o ce of municipal president of Laoag, he can maintain an
action such as this for the purpose of excluding the defendant from the exercise of said
office on account of illegalities alleged to have been committed in the elections.
The right to maintain such an action is especially and expressly governed by the
provisions of sections 197 to 216 of the Code of Civil Procedure.
The code, after enumerating in sections 197 and 198 the cases in which such an
action may be brought and the persons against whom they may be brought, goes on to
determine with careful distinction those who have the right to maintain such action.
Section 199 provides that "the Attorney-General of the Islands, or the scal of
any province, when directed by the Chief Executive of the Islands, must commence any
such action; and when upon complaint or otherwise he has good reason to believe that
any case speci ed in the two preceding sections can be established by proof, he must
commence such action."
Section 200 provides that "the Attorney-General of the Islands or the scal for a
province, may, at his own instance, bring such an action, or he may, on leave of the court
in which the action is to be commenced, or a judge thereof in vacation, bring the action
upon the relation of and at the request of another person; but, if the action is brought at
the request of and upon the relation of another person, the o cer bringing it may
require an indemnity for expenses and costs of the action, to be given to him by the
party at whose request and upon whose relation the same is brought, before
commencing it."
Finally, section 201, under the heading "An individual may commence such
action," provides as follows: "A person claiming to be entitled to a public o ce,
unlawfully held and exercised by another, may bring an action therefor."
If the legislator had intended to give to all citizens alike the right to maintain an
action for usurpation of public o ce, he would have plainly said so in order to avoid
doubt on a subject of such far-reaching importance. A simple provision would have
su ced for this purpose. Far from it, the legislator has on the contrary especially and
speci cally provided in sections 199, 200, and 201 who must and who may bring such
actions; and it is very clear that it was his intention to give such right to those expressly
mentioned in the above-cited sections and to no other, following the well- known rule of
law "inclusio unius est exclusio alterius." It has been noticed that the above referred to
three sections only mention the Attorney- General, the provincial scal, and the
individual claiming to be entitled to the o ce unlawfully held and exercised by another.
It is to be inferred from this last provision that the individual who does not claim to
have such a right can not bring an action for usurpation of public office.
This inference is supported by the provisions of section 202 which says that
when the action is against a person for usurping an o ce, the complaint shall set fort
the name of the person who claims to be entitled thereto, with an averment of his right
to the same. Why should this be required as an essential requisite if it were not
necessary that the individual bringing the action should claim the right to exercise the
office in question?
Our opinion is that the law has reserved to the Attorney-General and to the
provincial scals, as the case may be, the right to bring such action, and in but one case
does the law authorize an individual to bring such an action, to wit, when that person
claims to have the right to the exercise of the o ce unlawfully held and exercised by
another. Aside from this case an individual can not maintain such action. The law, in our
opinion, does not allow of any other construction. If an individual, whether or not he has
the right to the o ce alleged to have been usurped by another were to be permitted to
maintain such an action, it would serve no purpose and section 201 would be evidently
superfluous. It would be a useless and redundant provision of the code.
As a consequence of what has been said no individual can bring a civil action
relating to the usurpation of a public o ce without averring that he has a right to the
same; and at any stage of the proceedings, if it be shown that such individual has no
such right, the action may be dismissed because there is no legal ground upon which it
may proceed when the fundamental basis of such action is destroyed as is the case
here. This is what actually happened in this case. After all of the evidence presented by
the plaintiff had been introduced, it was found, and he himself so admitted that he had
failed to establish in any way, shape, or form that he had any right to the o ce of
municipal president of the town of Laoag as he had alleged in his complaint without
foundation for such allegation. Consequently the judge very properly acquitted the
defendant of the complaint.
The appellant contends that the court below should have rst inquired into the
right of the defendant to the o ce in question and that no other question can be raised
or investigated until this point has been determined, and alleges that the question of the
right of the plaintiff to the said o ce does not arise until it has been determined that
the defendant is not entitled to the exercise of such o ce. In support of his contention
he relies upon the provisions of section 202 of the Code of Civil Procedure.
This section provides as follows: "When the action is against a person for
usurping an o ce, the complaint shall set forth the name of the person who claims to
be entitled thereto, with an averment of his right to the same; and that the defendant is
unlawfully in possession of the same; and judgment may be rendered upon the right of
the defendant, and also upon the right of the person so averred to be entitled, or only
upon the right of the defendant, as justice requires."
From the words above italicized the appellant infers that the court below should
have rst passed upon the right of the defendant and afterwards upon the right of the
plaintiff. In our opinion this should be done at the same time and in the same judgment.
It is immaterial what method the court may follow in the statement and determination
of the questions in the rendition of his judgment because even though the court may
pass upon the right of the plaintiff rst, and the right of the defendant afterwards, or
vice versa, this procedure would not vitiate the judgment, provided the court does not
fail to state therein what the rights of the contending parties to the o ce are. But all of
this, of course, presupposes that the action has been properly brought and duly
prosecuted to a judgment. This, at the same time, presupposes that the plaintiff had a
right to maintain his action upon the evidence submitted by him at the trial. It is
impossible to prosecute a suit without a cause of action. Therefore, whenever before
judgment it is conclusively proven that the plaintiff has no right to maintain the action
since he has not the essential conditions required by law in order to bring and maintain
such action, his complaint should be dismissed and it becomes unnecessary to pass
upon the right of the defendant who has a perfect right to the undisturbed possession
of his o ce, unless the action is brought by a person having a right to maintain the
same under the law.
It may be said that under section 202 the court may only pass upon the right of
the defendant when the justice of the case so demands. This is true, but this only refers
to cases where the action is brought by the Attorney- General o* by the provincial scal,
as the case may be. In such cases it is not necessary that there be a person claiming to
be entitled to the o ce alleged to have been usurped, because although be no such
person, as in the case of a vacant o ce, for instance, the scal could and even should
bring such action against the person usurping the o ce in accordance with the
provisions of sections 200 and 199, respectively, as the case may be. The manner in
which judgment should be rendered according to section 202 perfectly meets the
various cases provided for in the three preceding sections; and it becomes the duty of
the court to pass upon the rights of the defendant only whenever it is not an essential
requisite for the due prosecution of the action that there be a person claiming to be
entitled to the o ce thus usurped, something which only happens where the Attorney-
General or the fiscal of any province brings the action against the usurper.
As a result of the foregoing, we can not here pass upon the validity or nullity of
the election of the defendant, for the reason, among others which it is not necessary to
state here, that the defendant has no right to maintain such an action as this.
The order of the court below appealed from, is hereby a rmed. After the
expiration of twenty days let judgment be entered in accordance herewith and let the
case be remanded to the court from whence it came for further proceedings in
accordance with the law. So ordered.
Arellano, C .J ., Torres, Johnson, and Carson, JJ ., concur.
Willard, J ., did not sit in this case.

FIRST DIVISION
[G.R. No. L-28184. September 11, 1980.]
PURIFICACION V. GARCIA , petitioner-appellant, vs. ANGELO PEREZ ,

respondent-appellee.
DECISION
DE CASTRO , J : p
Puri cacion V. Garcia appeals on pure questions of law, 1 from a decision dated
29 June 1967 of the Court of First Instance of Manila, Branch XXII, in Civil Case No.
67679 entitled "Puri cacion V. Garcia, Petitioner, versus Angelo Perez, Respondent",
which dismissed the petition for quo warranto instituted by petitioner-appellant
questioning the authority of respondent-appellee to occupy and discharge the duties of
the position of Senior Clerk in the Fiscal Management and Budget Division, Court of
Appeals, identi ed as Item No. 104, Page No, 2473, Republic Act No, 4164 for FY 1964-
65.
The antecedent facts which led to this suit are set forth in the decision of the
court a quo, 2 thus: cdphil
"In September 1964, the position of Senior Clerk in the Fiscal Management
and Budget Division of the Court of Appeals with an authorized salary of P4,800
per annum, became vacant. The petitioner, Puri cacion V. Garcia, who was then
occupying another position of Senior Clerk in the same division but with
compensation at the rate of P3,400 per annum, led with the Presiding Justice of
the Court of Appeals a written application for the vacant position stating therein
her qualifications.
"On September 12, 1964, upon the recommendation of the Clerk of Court of
Appeals, the Presiding Justice of said Court, appointed respondent Angelo Perez
to the vacant position, with compensation at the rate of P4,200 per annum,
effective on September 14, 1964. At that time, the respondent was holding the
position of Cash and Payroll Clerk in the same division, with compensation at the
rate of P3,960 per annum.
"On September 21, 1964, the petitioner led with the Civil Service
Commission, a protest against the appointment of the respondent on the ground
that she was next in rank, better quali ed and entitled to preferential appointment
to the position. The Commissioner of Civil Service indorsed the petitioner's protest
to the Court of Appeals for comment. In a second endorsement, the Presiding
Justice of the Court of Appeals, recommended approval of the appointment of the
respondent. In a separate communication to the Commissioner of Civil Service,
the Chief of the Fiscal Management and Budget Division of the Court of Appeals
stated that the recommendation for the approval of the appointment of the
respondent was made "after carefully studying the records and e ciency ratings
of the ranking employees in said division where the vacancy exists" and that
while the herein petitioner occupies an item in his division, she never worked
therein and "has no knowledge or experience about the nature or kind of work
being performed" in said division. The rst Deputy Clerk of Court and
Administrative O cer of the Court of Appeals also informed the Commissioner of
Civil Service that the position of Cash and Payroll Clerk, was considered next in
rank to the position of Senior Clerk to which the respondent was appointed and
this ranking was based in the "hierarchical organization of the Fiscal Department
and Budget Division to which the two above-mentioned positions belong, the
degree of relationship between these two positions and the similarity in the nature
of the duties inherent in them".
"On August 8, 1966, the Commissioner of Civil Service approved the

appointment of the respondent as Senior Clerk with compensation at the rate of
P4,200 per annum.
"Upon being informed of the approval of respondent's appointment, the
petitioner led a motion for the reconsideration of the decision of the
Commissioner of Civil Service denying her protest. On October 7, 1966, the
petitioner's motion for reconsideration was denied by the Commissioner of Civil
Service.
"To the position of Cash and Payroll Clerk vacated by the respondent, the
Presiding Justice of the Court of Appeals appointed Virginia Soriano thereto. On
November 23, 1966, the petitioner sent to the Commissioner of Civil Service her
protest against said appointment on the ground that it violated the Civil Service
Rules on Promotion, with the statement that the formal protest would be sent
later.
"On November 25, 1966, the petitioner commenced the present action but
three days later, or on November 28, 1966, she went her formal protest against the
appointment of Mrs. Soriano, with a prayer that it be disapproved and to cause
the appointment of the petitioner to said position."
The court a quo dismissed the complaint on the ground that: "A careful reading
of the plaintiff's complaint and the stipulation of facts submitted by the parties
disclose that the petitioner does not claim to be entitled to the position but she merely
asserted a `preferential right' to be appointed thereto. Considering that she has not
been appointed to the position in question, she cannot, therefore, be placed and made
to occupy it. Under the situation, the petitioner has no cause of action against the
respondent." 3 The court a quo further noted that: "Another circumstance which
militates against the present action is that it was commenced beyond the period of one
year from the time the alleged right of the petitioner to hold the o ce in question
arose. The respondent was appointed Senior Clerk effective September 14, 1964, and
since then, he immediately discharged the duties of the position. Considering that the
petitioner contends that the appointment of the respondent to said position and his
exercise of its functions was unlawful and prejudicial to petitioner's rights, she should
have commenced her action (assuming that she has the right to do so) within a period
of one year from said appointment, as she was in effect deprived of a right to occupy
the position. The complaint in this case was led only on November 25, 1966 and
accordingly, it is already barred." 4
Hence, this appeal wherein petitioner-appellant has assigned four (4) errors of
the court a quo, 5 thus:
I
"THE LOWER COURT ERRED IN DENYING APPELLANTS' RIGHT TO
INSTITUTE THE INSTANT QUO WARRANTO PETITION.
II
"THE LOWER COURT ERRED IN HOLDING THAT APPELLANT
SHOULD HAVE COMMENCED THIS ACTION WITHIN ONE (1) YEAR FROM
THE APPOINTMENT OF APPELLEE.
III
"THE LOWER COURT ERRED IN NOT DECLARING NULL AND VOID
APPELLEE'S APPOINTMENT TO THE CONTESTED POSITION AND IN NOT
DECLARING APPELLANT AS THE EMPLOYEE NEXT IN RANK TO SAID
POSITION AND ELIGIBLE AND QUALIFIED FOR APPOINTMENT THERETO.
IV
"THE LOWER COURT ERRED IN DISMISSING APPELLANT'S
PETITION, INSTEAD OF GRANTING APPELLANT'S PRAYER THEREIN."
The pivotal question thus presented, to which all others are subordinated is
whether the petitioner-appellant has the right to bring a quo warranto proceeding
questioning the legality of the appointment of the respondent.
Nothing is better settled than that a petitioner, in a quo warranto proceeding to
try title to a public o ce, must be able to show that he is entitled to said o ce. Absent
such an element, the petition must be dismissed. This is a principle that goes back to
Acosta v. Flor, 6 a 1905 decision. There, the doctrine has been laid down that: "No
individual can bring a civil action relating to usurpation of a public o ce without
averring that he has a right to the same; and at any stage of the proceedings, if it be
shown that such individual has no right, the action may be dismissed because there is
no legal ground upon which it may proceed when the fundamental basis of such action
is destroyed." This has been the exacting rule, since then, 7 followed with stricter
rmness in Cuyegkeng v. Cruz, 8 where this Court held that one who does not claim to
be entitled to the o ce allegedly usurped or unlawfully held or exercised by another,
but who "merely asserts a right to be appointed" thereto, cannot question the latter's
title to the same by quo warranto. In other words, one whose claim is predicated solely
upon a more or less remoted possibility, that he may be the recipient of the
appointment, has no cause of action against the o ce holder. This is precisely the
situation in the case at hand, and there is no cogent reason to change the rule. Perforce,
the instant appeal may be dismissed, even on this ground alone. LLjur
Should greater liberality be accorded to appellant by considering her action as

one for mandamus whereby she would seek the appointing power to be compelled to
withdraw the appointment of appellee and issue in its place one for appellant, a
procedural obstacle stands on the way, the appointing power, the Presiding Justice of
the Court of Appeals, not having been impleaded as a party. This on the assumption
that appellant has a clear legal right to the contested position, which she has not.
The observation just made nds relevance to the issue raised in appellant's
second assignment of error, relative to the fatal consequence of her failure to institute
the present quo warranto proceedings within the reglementary period of one year from
the accrual of the cause of action (Sec. 16, Rule 66, Rules of Court). In said assignment
of error, 9 petitioner-appellant maintains that the lower court erred in holding that this
action should have been commenced within one (1) year from the appointment of
appellee and argues that her cause of action arose only after notice of the denial of her
motion for reconsideration of the decision of the Commissioner of Civil Service on her
protest against the appointment of respondent appellee. Moreover, she insists that the
pendency of the protest in the Civil Service Commission suspended the running of the
one-year period, citing the Supreme Court's ruling on the nality of appointment in the
case of Grospe v. Sec. of Public Works and Communication, L-11090, January 31, 1959,
1 0 the dissenting opinion of Justice Perfecto in the case of Tumulak v. Egay, 82 Phil.
828 concerning the one-year period, 1 1 and the ruling in the case of Agcaoile v.
Saguitan, 48 Phil. 676. 1 2
The authorities relied upon by appellant are, however, not in point and do not
apply in this case. The rst case is one of mandamus — and the case at bar cannot be
considered as one, as already shown — asking for the reinstatement of an employee
who was ordered dismissed for cause by the Commission on Civil Service. The second
is a dissenting opinion which is not binding, as it is a mere expression of the individual
view of the dissenting justice from the conclusion held by the majority of the court. The
last was expressly abandoned in Torres v. Quintos, 88 Phil, 436, 439 (1951), in the
following tenor:
". . . We denied said supplemental action in a minute resolution, the effect
of which is of course to reject the theory that the pendency of an administrative
remedy suspends the period within which a petition for quo warranto should be
filed.
"The reason is obvious. While it may be desirable that administrative
remedies be rst resorted to, no one is compelled or bound to do so; and as said
remedies neither are prerequisite to nor bar the institution of quo warranto
proceedings, it follows that he who claims the right to hold a public o ce
allegedly usurped by another and who desires to seek redress in the courts,
should le the proper judicial action within the reglementary period. Public
interest requires that the right of public o ce should be determined as speedily
as practicable. . . ."
This ruling has been reiterated with consistent strictness in a long line of cases,
including Sison v. Pangramoyen, L-40295, 31 July 1978. 1 3
As applied to the instant case, the admitted facts show that the appointment in
controversy was made on 12 September 1964, effective 14 September 1964;
respondent-appellee assumed o ce on the strength thereof, and received the salary
corresponding to said position. The petition herein was led only on 25 November
1966, clearly more than one year after the pretended right of petitioner-appellant to
hold the o ce in question arose. This circumstance has closed the door for any judicial
remedy in her favor.
This makes it unnecessary to take up in detail the other assignment of errors
advanced by petitioner-appellant. Su ce it to state that petitioner-appellant has not
overcome the presumption of regularity and legality in o cial actions anent the
extension of the appointment in question by the Presiding Justice of the Court of
Appeals and the approval thereof, by the Commissioner of Civil Service. Even if viewed
only as a matter of equity, we cannot disregard, as if they were totally irrelevant, the
facts that appellee was at the time of the issuance of the disputed appointment,
receiving a higher salary than appellant; and that he, as cash and payroll clerk, had
always worked in the division to which the contested position pertains, while appellant
has never worked therein, although her item is that of a senior clerk of the same
division, thereby giving appellee higher potentiality for, if not actually greater,
competence for the duties and responsibilities of the position in question. cdphil
Likewise, three days after ling the instant petition, appellant protested with the
Commissioner of Civil Service the appointment of one Mrs. Virginia Soriano to the
position of cash and payroll clerk. the position vacated by appellee, praying that she
(appellant) be appointed to said position. This theory of abandonment, as advanced by
appellee 1 4 and raised in appellee's Motion to Dismiss, 1 5 was not refuted by appellant,
as she could have done by ling a reply brief which she did not. Undeniably, there is
obvious validity in this contention, at least insofar as it tends to show appellant's own
conviction in the weakness of her claim to be entitled to the position on dispute, which
constitutes the real and actual foundation of the action of quo warranto which she has
instituted.
ACCORDINGLY, the instant petition for quo warranto is hereby DISMISSED. No
costs.
SO ORDERED.
Teehankee (Chairman), Makasiar, Fernandez, Guerrero and Melencio-Herrera, JJ.,
concur.
Footnotes
1. p. 2, rollo.
2. pp. 2-5 CFI decision, p. 20, rollo.
3. p. 6, Ibid.
4. pp. 7-8, Ibid.

5. pp. 9-10, Appellant's Brief, p. 15, rollo.
6. 5 Phil. 18, 22.

7. Lino Luna v. Rodriguez, 36 Phil. 401 (1907); Nuevo v. Angeles, 76 Phil. 12 (1946); Adante
v. Dagpin, 96 Phil. 789 (1955); Batario v. Parentela, 9 SCRA 601 (1963); Caraan-Medina
v. Quizon, 18 SCRA 562 (1966); Bongbong v. Parado, 57 SCRA 623 (1974).
8. 108 Phil. 1147.
9. pp. 15-20, Appellant's Brief, p. 15, rollo.

10. pp. 15-16, Ibid.
11. pp. 18-19, Ibid.

12. pp. 17-18, Ibid.
13. 84 SCRA 364.

14. p. 35, Appellee's Brief.
15. p. 25, Record of the Case.

EN BANC
[G.R. No. L-3059. August 2, 1949.]
VICENTE G. CRUZ, AMADO V. HERNANDEZ, JOSEFINA R. PHODACA,

SALVADOR MARIÑO, ISAURO M. SANTIAGO, and SEGUNDO
AGUSTIN , petitioners, vs . PLACIDO RAMOS, FERNANDO MONLEON,
and LUIS VILLACERAN , respondents.
Nicolas V. Villaruz for petitioners.

Placido C. Ramos in his own behalf and, for the other respondents.
City Fiscal Eugenio Angeles and Hermenegildo Atienza as amici curiæ.
SYLLABUS
1. QUO WARRANTO; WHEN PETITIONERS DO NOT CLAIM TO BE ENTITLED

TO THE PUBLIC OFFICE. — Pursuant to section 6 of Rule 68 of the Rules of Court the
present petition for quo warranto is not authorized because the petitioners do not
claim to be entitled to the public o ce alleged to be unlawfully held or exercised by the
respondents.
2. ID.; PUBLIC OFFICE OR A FRANCHISE, USURPATION OF; GOVERNMENT AS
THE PROPER PARTY; EXCEPTION. — A public o ce or a franchise is created or granted
by law, and its usurpation or unlawful exercise is the concern primarily of the
Government. Hence the latter as s rule is the party called upon to bring the action for
such usurpation or unlawful exercise of an o ce or franchise. The only exception in
which the law permits an individual to bring the action in his own name is when he
claims to be entitled to the public o ce alleged to be usurped or unlawfully held or
exercised by another.
DECISION
OZAETA , J : p
This is an original petition of Quo Warranto (1) to declare "that the respondents
are illegally usurping, intruding into, and/or exercising or holding the o ce of Members
of the Manila Municipal Board," and (2) to oust them from that office.
The six petitioners allege that they are members of the Municipal Board of the
City of Manila, they having been elected in the general elections of 1947 together with
Gregorio Garcia, Andres Santamaria, Pedro Arenas, and Eustaquio Balagtas (who are
not parties in this case) to compose the ten members of the Board, for a term of four
years expiring on December 31, 1951, and that as such elected members they have the
absolute and exclusive right to exercise the prerogatives and privileges of the o ce of
members of said board; that only one vacancy in the board was created by the
appointment of Eustaquio Balagtas in March, 1949, as Director of Prisons; that on June
22, 1949, the President of the Philippines appointed the respondents Placido Ramos,
Fernando Monleon and Luis Villaceran members of the municipal board to ll the
vacancy caused by the appointment of Eustaquio Balagtas as Director of Prisons and
two new additional positions created by Republic Act No. 409, known as the Revised
Charter of the City of Manila; that said Republic Act No. 409, which increases the
congressional districts of the City of Manila from two to four and the membership of
the municipal board from ten to twelve, is unconstitutional because section 5 of Article
VI of the Constitution authorizes the Congress to apportion legislative districts
throughout the Philippines by a general law and not by piecemeal legislation; that at
least any two of the respondents are illegally usurping, intruding into, and/or holding or
exercising the rights and privileges and discharging the duties exclusively pertaining to
the petitioners and other members of the municipal board elected in the general
elections of 1947 because the creation of the o ce and the appointment of at least
any two of the respondents are contrary to section 5, Article VI of the Constitution; and
that the unconstitutional appointment and quali cation of at least any two of the
respondents increases the number of a majority to constitute a quorum to do business
in the deliberation of the municipal board, thereby depriving any six of the elective
members of the board to do business, inasmuch as the minimum number to constitute
a quorum of a 12-member board under Republic Act No. 409 is seven, instead of six.
The respondents in their answer contend (1) that the petitioners have no legal
capacity to bring the present action for usurpation of public o ce, inasmuch as the
petitioners do not claim to be entitled to occupy the o ce now held by the
respondents, and that an action for usurpation of o ce may be brought only by the
Solicitor General or by a fiscal in the name of the Republic of the Philippines; (2) that the
respondents are lawfully holding the o ce in question, they having been duly appointed
thereto by the President of the Philippines; and (3) that Republic Act No. 409 is
constitutional.
The exercise of the prerogative writ of Quo Warranto is governed by Rule 68 of
the Rules of Court. Section 1 of said rule provides that an action for the usurpation of
o ce may be brought in the name of the Republic of the Philippines against any person
who usurps, intrudes into, or unlawfully holds or exercises a public o ce. Section 3
provides that the Solicitor General or a scal, when directed by the President of the
Philippines, or when upon complaint or otherwise he has good reason to believe that
any case speci ed in sections 1 and 2 [the latter referring to actions against
corporations] can be established by proof, must commence the action. Section 4
provides that the Solicitor General or scal 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 o cer bringing it may rst require an
indemnity for the expenses and costs of the action to be given to him by the person at
whose request and upon whose relation it is brought. And section 6 provides that "a
person claiming to be entitled to a public o ce usurped or unlawfully held or exercised
by another may bring an action therefor in his own name."
The present petition is not authorized by section 6 because the petitioners do
not claim to be entitled to the public o ce alleged to be unlawfully held or exercised by
the respondents. As a matter of fact the petitioners allege that they are elected
members of the municipal board and that their term of o ce will not expire until
December 31, 1951. They do not and cannot claim that the respondents have
supplanted them. Their contention that they and the other elected members of the
board who are not parties in this case "have the absolute and exclusive right to exercise
the prerogatives and privileges and discharge the duties of the o ce of members of
said board," does not bring their case within the purview of section 6. Moreover, such
contention is untenable because if the elected councilors had "the absolute and
exclusive right" to the membership of the board, then no other person could become a
member of the board even if vacancies should be created therein by law or by the death
or resignation of an elected member during the four-year term of o ce of the
petitioners; and that is untenable because the councilors are elected individually, each
to fill one seat in the board, and not collectively as a body to constitute the board. And if
the petitioners should admit as they must that vacancies may be lled by other
persons, because an elected councilor cannot ll more than one seat in the board, they
must necessarily admit also that their right to membership therein is not exclusive.
The mere fact that the membership of the board was increased from ten to
twelve and the quorum from six to seven does not in any way diminish the rights and
prerogatives of the individual petitioners as members of the board. Such increase does
not result in the diminution of the emolument or in the curtailment of the participation in
the deliberations and of the vote of each of the petitioners as a member of the board.
The petitioners are bringing this action as individuals and not as a group or juridical
entity recognized by law as having a corporate or collective right to assert. As
members of the municipal board the six petitioners are not bound to vote solidly to a
man on any measure or motion that may come up before the board. Indeed, they are
supposed to express their individual opinions and cast their individual votes. Therefore,
the increase of the membership of the board and of the quorum necessary to do
business does not constitute any invasion of petitioners' right which would entitle them
to bring this action.
If, as petitioners contend, Republic Act No. 409 increasing the membership of the
board is unconstitutional — a question which we cannot inquire into unless a proper
action is brought before us — the remedy available to them as well as to any other
citizen is that provided for in section 4 of Rule 68; namely, to relate the matter to the
Solicitor General and request him to bring the action in the name of the Republic of the
Philippines. The reason of the law is that a public o ce or a franchise is created or
granted by law, and its usurpation or unlawful exercise is the concern primarily of the
Government. Hence the latter as a rule is the party called upon to bring the action for
such usurpation or unlawful exercise of an o ce or franchise. The only exception in
which the law permits an individual to bring the action in his own name is when he
claims to be entitled to the public o ce alleged to be usurped or unlawfully held or
exercised by another. That, however, is not the present case, as we have hereinabove
demonstrated.
It resulting from the foregoing that the petitioners have no cause of action, it is
neither necessary nor proper for the Court to pass upon the constitutionality of
Republic Act No. 409.
The petition is dismissed, with costs.
Moran, C.J., Paras, Feria, Bengzon, Padilla, Tuason, Montemayor and Reyes, JJ.,
concur.

FIRST DIVISION
[G.R. No. 168696. February 28, 2006.]
MA. LUTGARDA P. CALLEJA, JOAQUIN M. CALLEJA, JR., JADELSON

PETER P. CALLEJA, MA. JESSICA T. FLORES, MERCIE C. TIPONES
and PERFECTO NIXON C. TABORA , petitioners, vs . JOSE PIERRE A.
PANDAY, AUGUSTO R. PANDAY and MA. THELNA P. MALLARI ,
respondents.
DECISION
AUSTRIA-MARTINEZ , J : p
This resolves the petition for review on certiorari assailing the Order 1 of the
Regional Trial Court of San Jose, Camarines Sur, Branch 58 (RTC-Br. 58) issued on July
13, 2005.
The antecedent facts are as follows.
On May 16, 2005, respondents led a petition with the Regional Trial Court of San
Jose, Camarines Sur for quo warranto with Damages and Prayer for Mandatory and
Prohibitory Injunction, Damages and Issuance of Temporary Restraining Order against
herein petitioners. Respondents alleged that from 1985 up to the ling of the petition
with the trial court, they had been members of the board of directors and o cers of St.
John Hospital, Incorporated, but sometime in May 2005, petitioners, who are also
among the incorporators and stockholders of said corporation, forcibly and with the
aid of armed men usurped the powers which supposedly belonged to respondents.
On May 24, 2005, RTC-Br. 58 issued an Order transferring the case to the
Regional Trial Court in Naga City. According to RTC-Br. 58, since the veri ed petition
showed petitioners therein (herein respondents) to be residents of Naga City, then
pursuant to Section 7, Rule 66 of the 1997 Rules of Civil Procedure, the action for quo
warranto should be brought in the Regional Trial Court exercising jurisdiction over the
territorial area where the respondents or any of the respondents resides. However, the
Executive Judge of RTC, Naga City refused to receive the case folder of the subject
case for quo warranto, stating that improper venue is not a ground for transferring a
quo warranto case to another administrative jurisdiction.
The RTC-Br. 58 then proceeded to issue and serve summons on herein
petitioners (respondents below). Petitioner Tabora filed his Answer dated June 8, 2005,
raising therein the a rmative defenses of (1) improper venue, (2) lack of jurisdiction,
and (3) wrong remedy of quo warranto. Thereafter, the other petitioners also led their
Answer, also raising the same a rmative defenses. All the parties were then required
to submit their respective memoranda. caIEAD
On July 13, 2005, RTC-Br. 58 issued the assailed Order, the pertinent portions of
which read as follows:
It is undisputed that the plaintiffs' cause of action involves controversies
arising out of intra-corporate relations, between and among stockholders,
members or associates of the St. John Hospital Inc. which originally under PD
902-A approved on March 11, 1976 is within the original and exclusive
jurisdiction of the Securities and Exchange Commission to try and decide in
addition to its regulatory and adjudicated functions (Section 5, PD 902-A). Upon
the advent of RA 8799 approved on July 19, 2000, otherwise known as the
Securities and Regulation Code, the Commission's jurisdiction over all cases
enumerated in Section 5, Presidential Decree 902-A were transferred ["]to the Court
of general jurisdiction or the appropriate Regional Trial Court with a proviso that
the "Supreme Court in the exercise of its authority may designate the Regional
Trial Court branches that shall exercise jurisdiction over these cases." Pursuant to
this mandate of RA 8799, the Supreme Court in the exercise of said mandated
authority, promulgated on November 21, 2000, A.M. No. 00-11-03-SC which took
effect 15 December 2000 designated certain branches of the Regional Trial Court
to try and decide Securities and Exchange Commission Cases arising within their
respective territorial jurisdiction with respect to the National Capital Region and
within the respective provinces in the First to Twelve Judicial Region. Accordingly,
in the Province of Camarines Sur, (Naga City) RTC Branch 23 presided by the Hon.
Pablo M. Paqueo, Jr. was designated as "special court" (Section 1, A.M. No. 00-11-
03-SC).
Subsequently, on January 23, 2001, supplemental Administrative Circular
No. 8-01 which took effect on March 1, 2001 was issued by the Supreme Court
which directed that "all SEC cases originally assigned or transmitted to the regular
Regional Trial Court shall be transferred to branches of the Regional Trial Court
specially designated to hear such cases in accordance with A.M. No. 00-11-03-SC.
On March 13, 2001, A.M. No. 01-2-04 SC was promulgated and took effect
on April 1, 2001.
From the foregoing discussion and historical background relative to the

venue and jurisdiction to try and decide cases originally enumerated in Section 5
of PD 902-A and later under Section 5.2 of RA 8799, it is evident that the clear
intent of the circular is to bestow the jurisdiction "to try and decide these cases to
the "special courts" created under A.M. No. 00-11-03-SC. . . .
Under Section 8, of the Interim Rules, [a] Motion to Dismiss is among the
prohibited pleadings. On the otherhand, the Supreme Court under Administrative
Order 8-01 has directed the transfer from the regular courts to the branches of the
Regional Trial Courts specially designated to try and decide intra-corporate
dispute.
In the light of the above-noted observations and discussion, the Motion to

Dismiss is DENIED pursuant to the Interim Rules of Procedure for Intra-Corporate
Controversies (A.M. No. 01-2-04-SC) which mandates that motion to dismiss is a
prohibited pleading (Section 8) and in consonance with Administrative Order 8-01
of the Supreme Court dated March 1, 2001, this case is hereby ordered remanded
to the Regional Trial Court Branch 23, Naga City which under A.M. No. 00-11-03-
SC has been designated as special court to try and decide intra-corporate
controversies under R.A. 8799.
The scheduled hearing on the prayer for temporary restraining order and
preliminary injunction set on July 18, 2005 is hereby cancelled.
For reasons of comity the issue of whether Quo Warranto is the proper
remedy is better left to the court of competent jurisdiction to rule upon.CcHDaA
SO ORDERED. 2
Petitioners no longer moved for reconsideration of the foregoing Order and,
instead, immediately elevated the case to this Court via a petition for review on
certiorari under Rule 45 of the 1997 Rules of Civil Procedure.
The petition raises the following issues:
I
WHETHER A BRANCH OF THE REGIONAL TRIAL COURT WHICH HAS NO

JURISDICTION TO TRY AND DECIDE A CASE HAS AUTHORITY TO REMAND THE
SAME TO ANOTHER CO-EQUAL COURT IN ORDER TO CURE THE DEFECTS ON
VENUE AND JURISDICTION
II
WHETHER OR NOT ADMINISTRATIVE CIRCULAR NO. 8-01 DATED JANUARY 23,

2001 WHICH TOOK EFFECT ON MARCH 1, 2001 MAY BE APPLIED IN THE
PRESENT CASE WHICH WAS FILED ON MAY 16, 2005. 3
In their Comment, respondents argue that the present petition should be denied
due course and dismissed on the grounds that (1) an appeal under Rule 45 is
inappropriate in this case because the Order dated July 13, 2005 is merely an
interlocutory order and not a nal order as contemplated under Rule 45 of the 1997
Rules of Civil Procedure; (2) a petition for review on certiorari under Rule 45 is the
wrong remedy under A.M. No. 04-9-07-SC, which provides that "all decisions and nal
orders in cases falling under the Interim Rules of Corporate Rehabilitation and the
Interim Rules of Procedure Governing Intra-Corporate Controversies under Republic Act
No. 8799 shall be appealable to the Court of Appeals through a petition for review
under Rule 43 of the Rules of Court;" and (3) the petition was intended merely to delay
the proceedings in the trial court because when the case was transferred to Branch 21
of the Regional Trial Court, said court granted petitioners' motion to hold the
proceedings in view of the present petition pending before this Court.
Subsequently, petitioners also filed an Urgent Motion to Restore Status Quo Ante,
alleging that on January 12, 2006, respondent Jose Pierre Panday, with the aid of 14
armed men, assaulted the premises of St. John Hospital in Naga City, taking away the
daily hospital collections estimated at P400,000.00.
The Court notes that, indeed, petitioners chose the wrong remedy to assail the
Order of July 13, 2005. It is hornbook principle that Rule 45 of the 1997 Rules of Civil
Procedure governs appeals from judgments or nal orders. 4 The Order dated July 13,
2005 is basically a denial of herein petitioners' prayer in their Answer for the dismissal
of respondents' case against them. As a consequence of the trial court's refusal to
dismiss the case, it then directed the transfer of the case to another branch of the
Regional Trial Court that had been designated as a special court to hear cases formerly
cognizable by the SEC. Verily, the order was merely interlocutory as it does not dispose
of the case completely, but leaves something more to be done on its merits. Such being
the case, the assailed Order cannot ordinarily be reviewed through a petition under Rule
45. As we held in Tolentino v. Natanauan, 5 to wit:
In the case of Bangko Silangan Development Bank vs. Court of Appeals,
the Court reiterated the well-settled rule that:
. . . an order denying a motion to dismiss is merely interlocutory and

therefore not appealable, nor can it be the subject of a petition for review on
certiorari. Such order may only be reviewed in the ordinary course of law by an
appeal from the judgment after trial. The ordinary procedure to be followed in that
event is to le an answer, go to trial, and if the decision is adverse, reiterate the
issue on appeal from the final judgment. 6
It appears, however, that the longer this case remains unresolved, the greater
chance there is for more violence between the parties to erupt. In Philippine Airlines v.
Spouses Kurangking, 7 the Court proceeded to give due course to a case despite the
wrong remedy resorted to by the petitioner therein, stating thus:
While a petition for review on certiorari under Rule 45 would ordinarily be
inappropriate to assail an interlocutory order, in the interest, however, of arresting
the perpetuation of an apparent error committed below that could only serve to
unnecessarily burden the parties, the Court has resolved to ignore the technical
aw and, also, to treat the petition, there being no other plain, speedy and
adequate remedy, as a special civil action for certiorari. Not much, after all, can be
gained if the Court were to refrain from now making a pronouncement on an
issue so basic as that submitted by the parties. 8
In this case, the basic issue of which court has jurisdiction over cases previously
cognizable by the SEC under Section 5, Presidential Decree No. 902-A (P.D. No. 902-A),
and the propensity of the parties to resort to violence behoove the Court to look
beyond petitioners' technical lapse of ling a petition for review on certiorari instead of
ling a petition for certiorari under Rule 65 with the proper court. Thus, the Court shall
proceed to resolve the case on its merits. ESTaHC
It should be noted that allegations in a complaint for quo warranto that certain
persons usurped the o ces, powers and functions of duly elected members of the
board, trustees and/or o cers make out a case for an intra-corporate controversy. 9
Prior to the enactment of R.A. No. 8799, the Court, adopting Justice Jose Y. Feria's
view, declared in Unilongo v. Court of Appeals 1 0 that Section 1, Rule 66 of the 1997
Rules of Civil Procedure is "limited to actions of quo warranto against persons who
usurp a public o ce, position or franchise; public o cers who forfeit their o ce; and
associations which act as corporations without being legally incorporated," while "
[a]ctions of quo warranto against corporations, or against persons who usurp an o ce
in a corporation, fall under the jurisdiction of the Securities and Exchange Commission
and are governed by its rules. (P.D. No. 902-A as amended)." 1 1
However, R.A. No. 8799 was passed and Section 5.2 thereof provides as follows:
5.2. The Commission's jurisdiction over all cases enumerated under
Section 5 of Presidential Decree No. 902-A is hereby transferred to the Courts of
general jurisdiction or the appropriate Regional Trial Court: Provided, That the
Supreme Court in the exercise of its authority may designate the Regional Trial
Court branches that shall exercise jurisdiction over these cases. . . .
Therefore, actions of quo warranto against persons who usurp an o ce in a

corporation, which were formerly cognizable by the Securities and Exchange
Commission under PD 902-A, have been transferred to the courts of general
jurisdiction. But, this does not change the fact that Rule 66 of the 1997 Rules of Civil
Procedure does not apply to quo warranto cases against persons who usurp an o ce
in a private corporation. Presently, Section 1(a) of Rule 66 reads thus:
Section 1. Action by Government against individuals. — An action for
the usurpation of a public o ce, 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;
xxx xxx xxx
As explained in the Unilongo 1 2 case, Section 1(a) of Rule 66 of the present Rules no
longer contains the phrase "or an o ce in a corporation created by authority of law"
which was found in the old Rules. Clearly, the present Rule 66 only applies to actions of
quo warranto against persons who usurp a public o ce, position or franchise; public
o cers who forfeit their o ce; and associations which act as corporations without
being legally incorporated despite the passage of R.A. No. 8799. It is, therefore, The
Interim Rules of Procedure Governing Intra-Corporate Controversies Under R.A. No.
8799 (hereinafter the Interim Rules) which applies to the petition for quo warranto led
by respondents before the trial court since what is being questioned is the authority of
herein petitioners to assume the o ce and act as the board of directors and o cers of
St. John Hospital, Incorporated.
The Interim Rules provide thus:
Section 1. ( a ) Cases covered. — These Rules shall govern the
procedure to be observed in civil cases involving the following:
xxx xxx xxx
(2) Controversies arising out of intra-corporate, partnership, or
association relations, between and among stockholders, members, or
associates , and between, any or all of them and the corporation, partnership, or
association of which they are stockholders, members, or associates, respectively;
(3) Controversies in the election or appointment of directors,
trustees, o cers, or managers of corporations, partnerships, or
associations ;
xxx xxx xxx
SEC. 5. Venue. — All actions covered by these Rules shall be

commenced and tried in the Regional Trial Court which has jurisdiction over the
principal o ce of the corporation, partnership, or association concerned. . . .
(Emphasis ours) DHEaTS
Pursuant to Section 5.2 of R.A. No. 8799, the Supreme Court promulgated A.M.
No. 00-11-03-SC (effective December 15, 2000) designating certain branches of the
Regional Trial Courts to try and decide cases formerly cognizable by the Securities and
Exchange Commission. For the Fifth Judicial Region, this Court designated the
following branches of the Regional Trial Court, to wit:
Camarines Sur (Naga City) Branch 23, Judge Pablo M. Paqueo, Jr.
Albay (Legaspi City) Branch 4, Judge Gregorio A. Consulta

Sorsogon (Sorsogon) Branch 52, Judge Honesto A. Villamor
Subsequently, the Court promulgated A.M. No. 03-03-03-SC, effective July 1, 2003,
which provides that:
1. The Regional Courts previously designated as SEC Courts through
the: (a) Resolutions of this Court dated 21 November 2000, 4 July 2001, 12
November 2002, and 9 July 2002, all issued in A.M. No. 00-11-03-SC, (b)
Resolution dated 27 August 2001 in A.M. No. 01-5-298-RTC; and (c)
Resolution dated 8 July 2002 in A.M. No. 01-12-656-RTC are hereby
DESIGNATED and shall be CALLED as Special Commercial Courts to
try and decide cases involving violations of Intellectual Property Rights
which fall within their jurisdiction and those cases formerly cognizable
by the Securities and Exchange Commission ;
xxx xxx xxx

4. The Special Commercial Courts shall have jurisdiction over cases
arising within their respective territorial jurisdiction with respect to
the National Capital Judicial Region and within the respective provinces
with respect to the First to Twelfth Judicial Regions. Thus, cases shall
be led in the O ce of the Clerk of Court in the o cial station of
the designated Special Commercial Court ; (Emphasis ours)
The next question then is, which branch of the Regional Trial Court has
jurisdiction over the present action for quo warrato? Section 5 of the Interim Rules
provides that the petition should be commenced and tried in the Regional Trial Court
that has jurisdiction over the principal o ce of the corporation. It is undisputed that the
principal office of the corporation is situated at Goa, Camarines Sur . Thus, pursuant to
A.M. No. 00-11-03-SC and A.M. No. 03-03-03-SC, it is the Regional Trial Court
designated as Special Commercial Courts in Camarines Sur which shall have
jurisdiction over the petition for quo warranto filed by herein respondents.
Evidently, the RTC-Br. 58 in San Jose, Camarines Sur is bereft of jurisdiction over
respondents' petition for quo warranto. Based on the allegations in the petition, the
case was clearly one involving an intra-corporate dispute. The trial court should have
been aware that under R.A. No. 8799 and the aforementioned administrative issuances
of this Court, RTC-Br. 58 was never designated as a Special Commercial Court; hence, it
was never vested with jurisdiction over cases previously cognizable by the SEC.
Such being the case, RTC-Br. 58 did not have the requisite authority or power to
order the transfer of the case to another branch of the Regional Trial Court. The only
action that RTC-Br. 58 could take on the matter was to dismiss the petition for lack of
jurisdiction. In HLC Construction and Development Corp. v. Emily Homes Subdivision
Homeowners' Association, 1 3 the Court held that the trial court, having no jurisdiction
over the subject matter of the complaint, should dismiss the same so the issues therein
could be expeditiously heard and resolved by the tribunal which was clothed with
jurisdiction.
Note, further, that respondents' petition for quo warranto was led as late as
2005. A.M. No. 03-03-03-SC took effect as early as July 1, 2003 and it was clearly
provided therein that such petitions shall be led in the O ce of the Clerk of
Court in the official station of the designated Special Commercial Court . Since
the official station of the designated Special Commercial Court for Camarines Sur is the
Regional Trial Court in Naga City, respondents should have led their petition with said
court. A.M. No. 00-11-03-SC having been in effect for four years and A.M. No. 03-03-03-
SC having been in effect for almost two years by the time respondents led their
petition, there is no cogent reason why respondents were not aware of the appropriate
court where their petition should be filed. THIECD
The ratiocination of RTC-Br. 58 that Administrative Circular No. 08-2001

authorized said trial court to order the transfer of respondents' petition to the Regional
Trial Court of Naga City is specious because as of the time of ling of the petition, A.M.
No. 03-03-03-SC, which clearly stated that cases formerly cognizable by the SEC should
be led with the O ce of the Clerk of Court in the o cial station of the
designated Special Commercial Court , had been in effect for almost two years.
Thus, the ling of the petition with the Regional Trial Court of San Jose, Camarines Sur,
which had no jurisdiction over those kinds of actions, was clearly erroneous.
WHEREFORE, the petition is GIVEN DUE COURSE and GRANTED. The Order of the
Regional Trial Court of San Jose, Camarines Sur dated July 13, 2005 is SET ASIDE for
being NULL and VOID. The petition for quo warranto in Civil Case No. T-1007 (now re-
docketed as SEC Case No. RTC 2005-0001), entitled " Jose Pierre A. Panday, et al. v.
Sps. Joaquin M. Calleja, Jr., et al." is ordered DISMISSED.
SO ORDERED.
Panganiban, C.J., Ynares-Santiago, Callejo, Sr. and Chico-Nazario, JJ., concur.
Footnotes
1. Penned by Presiding Judge Eufronio K. Maristela.
2. Rollo, pp. 32-34.
3. Id., pp. 12, 16.
4. See Gallardo v. People, G.R. No. 142030, April 21, 2005, 456 SCRA 494, 502.
5. G.R. No. 135441, November 20, 2003, 416 SCRA 273.
6. Id. at 280
7. 438 Phil. 375 (2002).
8. Id. at 379-380.
9. Unilongo v. Court of Appeals, 365 Phil. 105 (1999).
10. Id.
11. Id. at 120, citing Jose Y. Feria, 1997 Rules of Civil Procedure.
12. Supra, at 119.
13. G.R. No. 139360. September 23, 2003, 411 SCRA 504.

EN BANC
[G.R. No. 174929. June 27, 2008.]
ENGR. RANULFO C. FELICIANO , petitioner, vs . NESTOR P. VILLASIN ,

respondent.
DECISION
CHICO-NAZARIO , J : p
This is a Petition for Certiorari under Rule 65 of the Revised Rules of Court
assailing the following: (1) the Order 1 dated 28 July 2006 of Branch 6 of the Regional
Trial Court (RTC) of Tacloban City, Leyte, dismissing petitioner Ranulfo C. Feliciano's
Petition for Quo Warranto against respondent Nestor P. Villasin in Civil Case No. 2006-
03-29; and (2) the Order 2 dated 8 September 2006 of the same court denying
petitioner's Motion for Reconsideration. CTSHDI
The following are the antecedent facts of this case:

Petitioner Feliciano was appointed General Manager (GM) of Leyte Metropolitan
Water District (LMWD) on 11 June 1975 by the LMWD Board of Directors through
Resolution No. 14, Series of 1975. 3
On 6 March 1990, the Local Water Utilities Administration (LWUA) took over the
management and policy-making functions of LMWD owing to LMWD's default on the
payment of its obligations to LWUA. Said move was made pursuant to Presidential
Decree No. 198, otherwise known as THE PROVINCIAL WATER UTILITIES ACT OF 1973,
4 issued on 25 May 1973. The LWUA appointed an Interim General Manager and
Chairman of the Board of Directors, as well as its members.
After the LWUA took over the management and policy-making functions of the
LMWD in March 1990, Engineer (Engr.) Cayo U. Emnas was appointed as take-over
General Manager. Emnas thereafter led administrative charges against Feliciano for
Grave Misconduct, Dishonesty and Conduct Unbecoming an LMWD O cial, docketed
as Administrative Case No. LMWD-OGCC-01-01. 5 Feliciano was accused of authorizing
payment of his backwages amounting to P134,721.64, for the period 6 March 1990 up
to 23 October 1990, although he did not report for work during said period. TIaCHA
The O ce of the Government Corporate Counsel (OGCC) handled the

investigation of the charges against Feliciano. In a Resolution dated 16 September
1991, the OGCC found Feliciano guilty as charged and recommended the penalty of
dismissal. Pertinent portions of the OGCC Resolution reads:
The action of respondent in authorizing, causing and receiving the
aforesaid disbursement of P134,721.64 in payment obstensibly of his
backwages for the period starting 6 March 1990 up to and until 23 October
1990, knowing that during the said period he did not report for work nor
rendered service to LMWD as testi ed to by complainants witnesses, is not only
irregular but unlawful. Worse, respondent being the General Manager,
necessarily had taken advantage of his position and abused the con dence
reposed in his o ce in the perpetration of the said rank dishonesty. As a
consequence thereof, LMWD was defrauded and suffered damage in the sum of
P134,721.64.
Accordingly, undersigned nds respondent Ranulfo C. Feliciano guilty, as
charged, of GRAVE MISCONDUCT, DISHONESTY, AND CONDUCT UNBECOMING
OF AN LMWD OFFICIAL. EIAHcC
In view of the grave nature of the offense committed by respondent, the

large sum which LMWD has been defrauded of, and the existence of
aggravating circumstances occasioned by respondent's taking undue
advantage of his position and abusing the con dence of his o ce, undersigned
recommends the imposition of the penalty of DISMISSAL on respondent. 6
On 11 November 1991, the Interim LMWD Board of Directors approved in toto
the findings of the OGCC including its recommendation to dismiss Feliciano. 7
On 1 October 1993, the Civil Service Commission (CSC) issued Memorandum
Circular No. 41, Series of 1993, directing Board Chairpersons and GMs of water
districts to submit personnel appointments for approval by the CSC.
On 20 July 1998, the take-over of the management and operations of the LMWD
by the LWUA was lifted by the LWUA Board of Trustees in its Resolution No. 138, Series
of 1998. 8 TEIHDa
On 25 September 1998, the new regular LMWD Board of Directors unanimously

approved Resolution No. 98-002 ordering Feliciano to re-assume 9 the post he had
vacated as GM of LMWD. The position was accepted by Feliciano on 27 September
1998. 1 0
As GM, Feliciano appointed Edgar R. Nedruda, Milagros A. Majadillas and Edgar
B. Ortega as Division Manager, Quality Control Assurance O cer and Plant Equipment
Operator E, respectively, at the LMWD. 1 1 In compliance with CSC Memorandum
Circular No. 41, Series of 1993, Feliciano submitted the same to the CSC Regional
O ce (CSCRO) for approval. The CSCRO, however, disapproved Feliciano's LMWD
personnel appointments in its Order issued on 8 June 1999 since GM Feliciano did not
possess the required CSC-approved appointment pursuant to CSC Memorandum
Circular No. 41, S. 1993. 1 2 Feliciano appealed the Order to the CSC.
On 8 September 2000, the CSC through its Chairperson Corazon Alma G. de
Leon, issued CSC Resolution No. 002107 denying Feliciano's appeal of his
disapproved LMWD personnel appointments on the ground that he was only a de facto
o cer. 1 3 It found that Feliciano had no authority to make appointments since he
himself lacked the required CSC-approved appointment pursuant to CSC Memorandum
Circular No. 40, Series of 1998, and Memorandum Circular No. 41, Series of 1993. 1 4
The CSC thus resolved: TCIEcH
WHEREFORE, the Order issued by the Civil Service Commission (CSCRO)

Regional O ce No. VIII, Palo, Leyte, disapproving the appointments of Nedruda,
Majadillas and Ortega on the ground that Ranulfo Feliciano lacks the authority
to appoint, is hereby affirmed.
Accordingly, the Human Resource Management Officer/Personnel Officer
of the Leyte Metro Water District (LMWD) may re-submit the appointment of
Ranulfo Feliciano to the position of General Manager of the LMWD, to the
CSC Leyte Field Office for attestation.
Feliciano may likewise re-appoint Nedruda, Majadillas and Ortega
to the same positions. (Emphases ours).
Feliciano led a Motion for Reconsideration citing as main argument the fact that
the LMWD was not a government-owned and controlled corporation, but a special type
of non-stock, non-pro t private corporation imbued with public interest, and therefore,
not covered by the civil service rules.
The CSC denied Feliciano's Motion for Reconsideration in its Resolution No.
010218 , issued on 22 January 2001, which reiterated that Feliciano's argument on the
private character of water districts had long been put to rest in Davao City Water
District v. Civil Service Commission, which declared water districts to be government-
owned or controlled corporations with original charter, falling under the jurisdiction of
the CSC and Commission on Audit (COA). TaCDcE
Not satis ed, Feliciano appealed CSC Resolutions No. 002107 and 010218 to
the Court of Appeals via Petition for Certiorari. The case was docketed as CA-G.R. No.
63325. On 1 September 2005, the Court of Appeals in Cebu City, through Associate
Justice Ramon M. Bato, Jr., denied the petition. 1 5 Feliciano led a Motion for
Reconsideration but the same was denied per Resolution dated 15 August 2006. 1 6
Feliciano thereafter appealed to this Court on 15 August 2006 via petition for review on
certiorari in G.R. No. 174178. In an en banc Decision issued on 17 October 2006, this
Court denied the petition for its failure to su ciently show that the CSC committed any
reversible error in issuing the challenged decision and resolution. Feliciano's Motion for
Reconsideration thereof was denied on 23 January 2007.
On 12 January 2005, the CSC issued a Memorandum directing its Regional
Director (for Region 8) Rodolfo Encajonado (RD Encajonado) to submit an update on
the status of Feliciano's appointment as GM of LMWD.
In his Memorandum submitted to the CSC on 14 January 2005, RD Encajonado
reported that the LMWD Board of Directors had not yet submitted the required
appointment of Feliciano as GM of LMWD for attestation, as required by CSC
Resolutions No. 002107 and No. 010218. On account thereof, the CSC, through its
Chairperson Karina Constantino-David, issued on 28 February 2005 CSC Resolution
No. 050307 , declaring Feliciano to be a mere de facto o cer of LMWD and ordering
him to vacate the position of GM, to wit: aATEDS
With the promulgation on September 13, 1991 of the above-mentioned

Supreme Court decision, 1 7 the issuance on October 1, 1993 of the aforestated
CSC Memorandum Circular, and the adoption on January 22, 2001 of CSC
Resolution No. 01-2018 denying Feliciano's motion for reconsideration,
Feliciano is under legal obligation to comply by submitting his appointment to
the Commission for attestation/approval. This, he did not do. He instead
stubbornly maintained his personal stand that water districts are private
corporations, not government-owned or controlled corporations with original
charter. For all legal intents and purposes, effective upon his receipt on February
6, 2001 of CSC Resolution No. 01-0218 denying his motion for reconsideration,
Feliciano is a mere usurper or intruder who has no right or title whatsoever to the
position/o ce of General Manager. His further occupancy of the position after
said date holds him criminally liable for usurpation of authority.
xxx xxx xxx

WHEREFORE, the Commission resolves as follows:
1. Between June 8, 1999 (the date when the Civil Service Commission
Regional O ce No. VIII issued an Order disapproving the appointments of
Edgar R. Nedruda, Milagros A. Majadillas and Edgar B. Ortega on the
ground that Ranulfo C. Feliciano does not possess a CSC-approved
appointment) and February 6, 2001 (the date when Feliciano received a
copy of CSC Resolution No. 01-0218 denying his motion for
reconsideration and affirming CSC Resolution No. 00-2107), Feliciano shall
be treated as a de facto o cer whose acts are valid and binding only as
regards innocent third persons. Insofar as Feliciano himself is concerned,
his acts are void, hence, he is not entitled to the emoluments of the o ce.
Regarding the three (3) issued appointments, the same are all void, since
Feliciano has no authority to issue the same.EaHDcS
2. Starting February 6, 2001, Feliciano is a mere usurper or intruder without

any right or title to the o ce/position of General Manager of the Leyte
Metropolitan Water District (LMWD). His further occupancy of the position
of General Manager after February 6, 2001 holds him criminally liable for
usurpation of authority. Effective upon receipt of this Resolution, he is
ordered to vacate the position of LMWD General Manager. 1 8
On 22 March 2005, Feliciano again sought recourse at the Court of Appeals

where he led a Petition for Certiorari and Prohibition with application for Temporary
Restraining Order (TRO) and Writ of Injunction, seeking to enjoin the implementation of
CSC Resolution No. 050307, Series of 2005. The case was docketed as CA-G.R. SP
No. 00489 . 1 9
On 30 March 2005, while CA-G.R. SP No. 00489 was still pending with the Court
of Appeals, with no injunction having been issued by the appellate court, the LMWD
Board of Directors declared the GM position occupied by Feliciano vacant by virtue of
LMWD Resolution No. 050307. 2 0 AaIDCS
The Court of Appeals subsequently issued on 12 April 2005 a Resolution in CA-

G.R. SP No. 00489 granting a TRO effective for sixty days. After the lapse of the TRO,
the LMWD Board of Directors appointed Villasin as the new GM of LMWD on 14 June
2005. On 16 September 2005, the Court of Appeals dismissed CA-G.R. SP No. 00489
which reached this Court via petition for review in G.R. No. 172141. This was eventually
denied by this Court and entry of judgment was made on 14 November 2006. On 28
December 2005, the LMWD Board of Directors unanimously approved LMWD
Resolution No. 05-145 certifying that Villasin was the GM of LMWD pursuant to the
provisions of Presidential Decree No. 198 and the CSC Rules and Regulations.
On 28 March 2006, Feliciano thus led with the RTC a Petition for Quo Warranto
against Villasin under Rule 66 of the 1997 Rules of Civil Procedure, docketed as Civil
Case No. 2006-03-29 .
Feliciano asked the RTC to restore him to his position as GM of LMWD, and to
remove Villasin therefrom. In particular, he prayed for the following in his Petition for
Quo Warranto: AaEcHC
1. To order [Villasin] to vacate the O ce of General Manager of LMWD and

for [Feliciano] to be seated to such office;
2. To mandate [Villasin] to pay the salaries and other emoluments of
[Feliciano] which as of this date amounts to more than One Million Two
Hundred Thousand Pesos (P1,200,000.00);
3. To direct [Villasin] to pay [Feliciano] attorney's fees comprised of Two

Hundred Thousand Pesos (P200,000.00) as acceptance fees and Five
Thousand Pesos (P5,000.00) appearance per hearing;
4. To command [Villasin] to pay the cost of herein Petition for Quo Warranto.
[Feliciano] also prays for such other reliefs as may be necessary under
the circumstances. 2 1
Citing the Court's ruling in Villaluz v. Zaldivar, 2 2 Feliciano argued that since the
LWUA had no power to remove a GM appointed by a regular Board of Directors, it
should follow then that an interim Board of Directors neither had the power to discipline
or remove a regular GM of LMWD. aETDIc
Villasin countered by ling a Comment/Answer with Motion to Dismiss the

Petition for Quo Warranto, on the following grounds:
(a) Forum shopping;
(b) Feliciano is disquali ed from government service due to his dismissal

from office on 11 November 1991;
(c) Petitioner's claim that LMWD is a private entity defeats his petition since
quo warranto is a remedy of a person claiming a public office;
(d) Quo warranto case was led more than a year from the time the cause of
action arose or beyond the reglementary period;
(e) The Court of Appeals had already denied his petition for Review on
Certiorari on CSC Resolution No. 050307.
A hearing with notice to the parties was set for 2 June 2006 but Feliciano failed
to attend the same. 2 3 The RTC then ordered Civil Case No. 2006-03-29 submitted for
Resolution. acIASE
On 28 July 2006, the RTC issued an Order dismissing Feliciano's Petition for Quo
Warranto, finding that:
The scope of the remedy of quo warranto instituted by an individual is
that he, the petitioner, has prior right to the position or o ce held by the
respondent. Where there is no legal ground or where the fundamental basis of
the petition is none or destroyed, it becomes unnecessary to pass upon the right
of the respondent.
xxx xxx xxx
WHEREFORE, in view of the aforegoing (sic), for lack of cause of action

amounting to want of jurisdiction, this petition shall be, as it is hereby ordered,
dismissed. 2 4
Feliciano led his Motion for Reconsideration alleging that the Order issued by
the RTC was conjectural, presumptuous and specious. However, the Motion for
Reconsideration was denied by the RTC in an Order dated 8 September 2006.
According to the RTC, the Quo Warranto Petition was prematurely led considering that
Feliciano's Petition for Review on Certiorari with the Court of Appeals, involving CSC
Resolutions No. 002107 and No. 010218, was still pending with the Court of Appeals.
Hence, the issue of whether Feliciano is holding the GM position in a de facto or a de
jure capacity is yet to be resolved. The RTC therefore decreed: HDTSIE
WHEREFORE, with prematurity in the institution of the present petition as

duly admitted by herein petitioner-movant coupled with the fact that the rest of
the arguments raised in the motion have already been considered and rejected
by this court in the order dated, July 28, 2006, the motion for reconsideration is
hereby denied. 2 5
On 14 October 2006, Feliciano went directly to this Court via the instant Petition
for Certiorari under Rule 65 of the Revised Rules of Court, raising the following
arguments:
I.
RESPONDENT COURT HAS COMMITTED GRAVE ABUSE OF DISCRETION

AMOUNTING TO LACK OR EXCESS OF JURISDICTION AS ITS DISMISSAL OF
THE PETITION IS SO WHIMSICAL, CAPRICIOUS AND ARBITRARY AMOUNTING
THEREFORE TO A PATENT AND GROSS EVASION OF A POSITIVE DUTY OR
VIRTUAL REFUSAL TO PERFORM JUDICIAL DUTY. TAHIED
II.
RESPONDENT COURT HAS COMMITTED GRAVE ABUSE OF DISCRETION AS

ITS DISMISSAL OF THE PETITION, BASED ON GROUNDS NOT SOUGHT AND
PRAYED FOR IN THE MOTION TO DISMISS, CONSTITUTES A DENIAL OF DUE
PROCESS.
As hereinbefore stated, CA-G.R. SP No. 00489 , Feliciano's Petition for
Certiorari and Prohibition seeking to enjoin the implementation of CSC Resolution No.
050307, was dismissed by the Court of Appeals in a Decision dated 16 September
2005. Feliciano appealed said Court of Appeals Decision before this Court through a
Petition for Review on Certiorari, docketed as G.R. No. 172141 . This Court, however,
in an En Banc Resolution dated 6 June 2006, ruled to:
b) DENY the petition for failure thereof to su ciently show that the
Court of Appeals committed any reversible error in issuing the challenged
decision and resolution as to warrant the exercise by this Court of its
discretionary appellate jurisdiction. 2 6
TEHDIA
The Court En Banc denied with nality Feliciano's Motion for Reconsideration on
22 August 2006, and entry of judgment was made in G.R. No. 172141 on 14 November
2006.
In the instant Petition, which actually arose from the appointment by the LMWD
Board of Directors of Villasin as the new GM of LMWD after the CSC ordered Feliciano
to vacate the same in its Resolution No. 050307, Feliciano prays that this Court set
aside and declare null and void the Orders dated 28 July 2006 and 8 September 2006
of the RTC dismissing his Petition for Quo Warranto in Civil Case No. 2006-03-29.
Petitioner raises several issues in this Petition, which all boil down to the sole
question of whether the RTC committed grave abuse of discretion amounting to lack or
excess of jurisdiction in dismissing Feliciano's Petition for Quo Warranto.
Worthy to note is the failure of Feliciano to implead herein the RTC, the tribunal
that rendered the assailed Orders, as a nominal party (public respondent) in the instant
Petition for Certiorari. One of the requisites of an independent civil action for Certiorari
is that it must be directed against a tribunal, a board, or an o cer exercising
judicial or quasi-judicial functions . Feliciano failed to comply with said requirement
and this failure is sufficient to dismiss this Petition. TaDIHc
Under Rule 65 of the Rules of Court, failure to comply with any of the aforesaid
requirements for ling an independent civil action for Certiorari is su cient ground for
the dismissal of the petition. This rule accords su cient discretion to the court hearing
the special civil action whether or not to dismiss the petition outright for failure to
comply with said requirement.
Evidently, the function of this Court is merely to check whether the RTC
committed grave abuse of discretion amounting to lack or excess of jurisdiction in
dismissing Feliciano's Petition for Quo Warranto before it.
In a petition for certiorari under Section 1, Rule 65 of the Rules of Court, the
following essential requisites must be present, to wit: (1) the writ is directed against a
tribunal, a board, or an o cer exercising judicial or quasi-judicial functions; (2) such
tribunal, board, or o cer has acted without or in excess of jurisdiction, or with grave
abuse of discretion amounting to lack or excess of jurisdiction; and (3) there is no
appeal or any plain, speedy, and adequate remedy in the ordinary course of law. 2 7
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,
2 8 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. 2 9
CSIHDA
A petition for certiorari under Rule 65 of the Rules of Court will prosper only if
there is a showing of grave abuse of discretion or an act without or in excess of
jurisdiction on the part of respondent tribunal. In the absence of such a showing, there
is no reason for this Court to annul the decision of the respondent tribunal or to
substitute it with its own judgment, for the simple reason that it is not the o ce of a
petition for Certiorari to inquire into the correctness of the assailed decision.
Nonetheless, even as this Court delves into the merits of the present Petition, it
still must fail.
Feliciano's Petition for Quo Warranto centers on his alleged right as the one
legally entitled to occupy the position of GM of LMWD. He presented two main issues
therein:
(1) Whether or not the LMWD Board of Directors, through Resolution No. 05-
037, legally and validly ousted him; and
(2) Whether or not the LMWD Board of Directors legally and validly appointed
Villasin.
ASTIED
Contending that his appointment as GM on 11 June 1975 by the LMWD Board of

Directors and subsequent assumption of o ce bestowed on him a legal right to the
said position, Feliciano argues that Republic Act No. 9286, 3 0 which further amended
Presidential Decree No. 198, and was approved on 2 April 2004, vested him with
security of tenure. Feliciano adds that the Interim LMWD Board of Directors, in fact, had
no power to dismiss him when he was dismissed on 11 November 1991.
It is well-established that Quo Warranto proceedings determine the right of a
person to the use or exercise of a franchise or an o ce and to oust the holder from its
enjoyment, if the latter's claim is not well-founded, or if he has forfeited his right to
enjoy the privilege. According to the Rules of Procedure:
The action may be commenced for the Government by the Solicitor
General or the scal against a person who usurps, intrudes into, or
unlawfully holds or exercises a public o ce, position or franchise ; a
public o cer whose acts constitute a ground for the forfeiture of his o ce; or
against an association which acts as a corporation without being legally
incorporated or without lawful authority to so act. 3 1 TDcAIH
The action may also be instituted by an individual in his own name

who claims to be entitled to the public o ce or position usurped or unlawfully
held or exercised by another. 3 2 (Emphasis supplied).
The possible outcome of a Petition for Quo Warranto can be any of the following:
If the court nds for the respondent, the judgment should simply state
that the respondent is entitled to the o ce. If, however, the court nds for the
petitioner and declares the respondent guilty of usurping, intruding into, or
unlawfully holding or exercising the o ce, judgment may be rendered as
follows:
"Sec. 10. Judgment where usurpation found. — When the
defendant is found guilty of usurping, intruding into, or unlawfully holding
or exercising an office, position, right, privilege, or franchise, judgment shall
be rendered that such defendant be ousted and altogether excluded
therefrom, and that the plaintiff or relator, as the case may be, recover his
costs. Such further judgment may be rendered determining the respective
rights in and to the o ce, position, right, privilege, or franchise of all the
parties to the action as justice requires."EcHTDI
If it is found that the respondent or defendant is usurping or intruding

into the office, or unlawfully holding the same, the court may order:
(1) The ouster and exclusion of the defendant from office;
(2) The recovery of costs by plaintiff or relator;
(3) The determination of the respective rights in and to the

o ce, position, right, privilege or franchise of all the parties to the action
as justice requires. 3 3
In the instance in which the Petition for Quo Warranto is led by an individual in
his own name, he must be able to prove that he is entitled to the controverted public
o ce, 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 o ce, the complaint, to be su cient in form, must show that the plaintiff is
entitled to the o ce. 3 4 In Garcia v. Perez, 3 5 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 o ce in dispute. Without
such averment or evidence of such right, the action may be dismissed at any
stage . 3 6 DSacAE
Due to the recent turn of events, Feliciano lost any legal standing to pursue via
Quo Warranto proceedings his claim to the position of GM of LMWD considering this
Court's En Banc Resolutions dated 6 June 2006 and 22 August 2006 in G.R. No.
172141 which denied with nality his Petition for Review on Certiorari of the Court of
Appeals Decision dated 16 September 2005 and Resolution dated 31 March 2006 in
CA-G.R. SP No. 00489 upholding the legality of CSC Resolution No. 050307. To recall,
CSC Resolution No. 050307 treated Feliciano as a de facto o cer with regard to his
acts as GM of LMWD; and declared him to be a usurper of or an intruder to the said
position beginning 6 February 2001, and thus ordered him to vacate the same.
Considering that entry of judgment was already made in G.R. No. 172141 as of
14 November 2006, there is therefore no more obstacle to the appointment by the
LMWD Board of Directors of Villasin as the new GM of LMWD.
Feliciano imputes grave abuse of discretion on the part of the RTC for allegedly
failing to afford him due process, since his Petition for Quo Warranto was dismissed
based on its face and without having been heard. In granting Villasin's Motion to
Dismiss the Petition for Quo Warranto, the RTC ratiocinated: caHASI
Inferred, in the year 1999, petitioner herein already knew that his
appointment as General Manager of LMWD was placed in doubt and declared
ineffective. So his acts as such since then were void. Petitioner, in fact was
ordered by the Civil Service Commission to vacate the position of LMWD
General Manager since he assumed the position without completed
appointment (General Manager, Philippine Ports Authority, et al. vs. Julieta
Monserat, 381 SCRA 200.)
. . . As of the moment, without the CSC approved appointment, he is, the
law points, a de facto officer. He held the position of General Manager of LMWD
without the completed appointment. Over this, but for the creed petitioner
avows, the court believes that while the necessary intent is there, the sporting
idea of fair play, is not su cient for the petition to succeed. Petitioner surely is
a de facto officer. 3 7
The Court emphasizes that an action for Quo Warranto may be dismissed at any
stage when it becomes apparent that the plaintiff is not entitled to the disputed public
o ce, position or franchise. 3 8 Hence, the RTC is not compelled to still proceed with
the trial when it is already apparent on the face of the Petition for Quo Warranto that it
is insufficient. The RTC may already dismiss said petition at this point. aSTcCE
Feliciano presents as an alternative argument the fact that as GM of LMWD, he is

not part of the personnel of the water district, arguing that his appointment does not
need CSC attestation. He explains that:
[E]ven granting that the CSC can declare him a de facto o cer and
usurper, the same has already prescribed, since as early as September 8, 2000
in its Resolution No. 002107 or four (4) years before its Resolution No. 050307,
it has already known about petitioner being a de facto o cer, that being the GM
of LMWD, he is not part of the personnel of LMWD, thus, his appointment is not
subject to attestation under CSC Resolution No. 41, S. 1993 . . . . 3 9
We find his argument untenable.
To determine whether personnel of the LMWD, particularly the GM, are subject to
CSC Rules and Regulations, we must delve into the pertinent laws affecting the
management and policy-making functions of the LMWD.
The provisions of Presidential Decree No. 198 read: HaTISE
Chapter VI
Officers and Employees
Section 23 . Additional Officers. — At the rst meeting of the board, or
as soon thereafter as practicable, the board shall appoint, by a majority vote, a
general manager, an auditor, and an attorney, and shall de ne their duties and x
their compensation. Said officers shall service at the pleasure of the board.
xxx xxx xxx
Section 25 . Exemption from Civil Service . — The district and its
employees, being engaged in a proprietary function, are hereby exempt from the
provisions of the Civil Service Law. . . . .
On 15 August 1975, Presidential Decree No. 768 amended Section 23 of
Presidential Decree No. 198 to read:
SEC. 23. The General Manager. — At the rst meeting of the board, or
as soon thereafter as practicable, the board shall appoint, by a majority vote, a
general manager and shall de ne his duties and x his compensation. Said
officer shall serve at the pleasure of the board.
STcEaI
On 11 June 1978, Presidential Decree No. 1479 4 0 amended Presidential Decree

No. 198, as amended by Presidential Decree No. 768, removing Section 25 of the latter,
which had exempted the district and its employees from the coverage of the Civil
Service. Thus, with such amendment, o cers and employees of water districts were
put under the mantle of Civil Service Rules and Regulations.
On 2 April 2004, Republic Act No. 9286 further amended Section 23 of
Presidential Decree No. 198, to read:
Sec. 23. The General Manager. — At the rst meeting of the Board, or
as soon thereafter as practicable, the Board shall appoint, by a majority vote, a
general manager and shall de ne his duties and x his compensation. Said
o cer shall not be removed from o ce, except for cause and after
due process .
From the foregoing, as early as the issuance of Presidential Decree No. 1479 on
11 June 1978, it is clear that the LMWD GM is covered by Civil Service Rules and
Regulations. DEAaIS
As we have held in Tanjay Water District v. Gabaton, 4 1 Davao City Water District
v. Civil Service Commission, 4 2 and Hagonoy Water District v. National Labor Relations
Commission, 4 3 water districts are government instrumentalities 4 4 whose o cers and
employees belong to the civil service. These rulings are in consonance with the
provisions of Article IX-B, Section 2 of the Constitution, whose provisions read:
The civil service embraces all branches, subdivisions, instrumentalities,
and agencies of the Government, including government-owned or controlled
corporations with original charters.
The position of General Manager being unequivocally part of the personnel of the
water district whose o cers and employees are covered under the civil service, an
appointment thereto requires the attestation of the CSC for it to be valid.
Moreover, this Court cannot ignore the fact that petitioner Feliciano violated the
rule on forum shopping 4 5 in his quest for a favorable opinion on his cause of action.
IHCSET
Forum shopping exists when a party repetitively avails himself of several judicial
remedies in different courts, simultaneously or successively, all substantially founded
on the same transactions and the same essential facts and circumstances, and all
raising substantially the same issues either pending in, or already resolved adversely by,
some other court. 4 6
The following elements of forum shopping have been established:
(a) identity of parties, or at least such parties as represent the same
interests in both actions;
(b) identity of rights asserted and relief prayed for, the relief being
founded on the same set of facts; and

(c) the identity of the two preceding particulars, such that any
judgment rendered in the other action will, regardless of which party is
successful, amount to res judicata in the action under consideration. 4 7
The prohibition on forum shopping is embodied in Rule 7 of the Rules of Court,
which provides, viz.: aASDTE
Sec. 5. Certi cation against forum shopping . — The plaintiff or

principal party shall certify under oath in the complaint or other initiatory
pleading asserting a claim for relief, or in a sworn certi cation annexed thereto
and simultaneously led therewith: (a) that he has not theretofore commenced
any action or led any claim involving the same issues in any court, tribunal or
quasi-judicial agency and, to the best of his knowledge, no such other action or
claim is pending therein; (b) if there is such other pending action or claim, a
complete statement of the present status thereof; and (c) if he should thereafter
learn that the same or similar action or claim has been led or is pending, he
shall report that fact within ve (5) days therefrom to the court wherein his
aforesaid complaint or initiatory pleading has been filed.
Failure to comply with the foregoing requirements shall not be curable by
mere amendment of the complaint or other initiatory pleading but shall be
cause for the dismissal of the case without prejudice, unless otherwise provided,
upon motion and after hearing. The submission of a false certi cation or non-
compliance with any of the undertakings therein shall constitute indirect
contempt of court, without prejudice to the corresponding administrative and
criminal actions. If the acts of the party or his counsel clearly constitute willful
and deliberate forum shopping, the same shall be ground for summary
dismissal with prejudice and shall constitute direct contempt, as well as a cause
for administrative sanctions. cTCEIS
What is pivotal to consider in determining whether forum shopping exists or not

is the vexation caused to courts and the parties-litigants by a party who asks appellate
courts and/or administrative entities to rule on the same or related causes and/or to
grant the same or substantially the same reliefs, in the process creating the possibility
of conflicting decisions being rendered by the different courts upon the same issues. 4 8
Feliciano has evidently tri ed with the courts and abused their processes in
improperly instituting several cases and ling multiple petitions, cases or proceedings,
and splitting causes of action — all of which focused on the legality of his termination
as LMWD GM. While a party may avail himself of the remedies prescribed by the Rules
of Court for the myriad reliefs from the court, such party is not free to resort to them
simultaneously or at his pleasure or caprice.
It is pertinent to note that at the time Feliciano led G.R. No. 174929 on 14
October 2006, the legality of his termination as LMWD GM has, in fact, been resolved
with nality with the entry of judgment in G.R. No. 172141. To recall, this Court En Banc
denied G.R. No. 172141 and a rmed CA-G.R. SP No. 00489 which upheld CSC
Resolution No. 050307. With the denial of G.R. No. 172141, the validity of CSC
Resolution No. 050307 declaring Feliciano to be a de facto o cer from 8 June 1999 to
6 February 2001, and a mere usurper thereafter, has been laid to rest. TcSAaH
Feliciano, however, insisted on pursuing this petition for certiorari, being fully
aware of the finality of G.R. No. 172141 and the consequences resulting therefrom.
This Court reiterates the raison d'etre for the proscription against forum
shopping. The grave evil sought to be avoided by the rule against forum shopping is the
rendition by two competent tribunals of two separate and contradictory decisions —
unscrupulous party litigants, taking advantage of a variety of competent tribunals, may
repeatedly try their luck in several fora until a favorable result is reached. 4 9
IN ALL, we nd that the RTC committed no grave abuse of discretion in
dismissing Feliciano's Petition for Quo Warranto.
WHEREFORE, premises considered, this Petition for Certiorari is DISMISSED, and
the Orders dated 8 July 2006 and 8 September 2006 issued by Branch 6 of the
Regional Trial Court in Tacloban, Leyte, in Civil Case No. 2006-03-29, dismissing
petitioner Ranulfo C. Feliciano's Petition for Quo Warranto, are hereby AFFIRMED. caCTHI
Feliciano and his counsel are hereby REPRIMANDED for FORUM SHOPPING, with
a WARNING that a repetition of the same or similar act will be dealt with more severely.
Costs against petitioner.
SO ORDERED.
Puno, C.J., Quisumbing, Ynares-Santiago, Carpio, Austria-Martinez, Corona,
Carpio-Morales, Azcuna, Tinga, Velasco, Jr., Reyes, Leonardo-de Castro and Brion JJ.,
concur.
Nachura, J., took no part.
Footnotes
1. Penned by Presiding Judge Santos T. Gil; rollo, pp. 24-28.
2. Rollo, pp. 29-31.

3. Wherefore, be it resolved, as it is hereby resolved, to appoint Engr. Ranulfo C. Feliciano as
General Manager of the Leyte Metropolitan Water District as the rate of One Thousand
Six Hundred Thirty-One Pesos (P1,631.00) per month effective June 11, 1975; TCIDSa
xxx xxx xxx
Approved this 11th day of June 1975, 1975 at Tacloban City. (Rollo, p. 50.)
4. The full title of which is: DECLARING A NATIONAL POLICY FAVORING LOCAL
OPERATION AND CONTROL OF WATER SYSTEMS; AUTHORIZING THE FORMATION OF
LOCAL WATER DISTRICTS AND PROVIDING FOR THE GOVERNMENT AND
ADMINISTRATION OF SUCH DISTRICTS; CHARTERING A NATIONAL ADMINISTRATION
TO FACILITATE IMPROVEMENT OF LOCAL WATER UTILITIES; GRANTING SAID
ADMINISTRATION SUCH POWERS AS ARE NECESSARY TO OPTIMIZE PUBLIC SERVICE
FROM WATER UTILITY OPERATIONS, AND FOR OTHER PURPOSES.
5. Rollo, p. 84.
6. Id. at 58.
7. LMWD Resolution No. 18, Series of 1991.
8. Rollo, p. 51.
9. Id. at 51.
10. Id. at 51-52.
11. Id. at 53.
12. Id. at 53.
13. Id. at 53-56.
14. Id. at 53-56. ACcHIa
15. Penned by Associate Justice Ramon M. Bato, Jr. with Associate Justices Arsenio J.
Magpale and Pampio A. Abarientos, concurring; CA rollo, pp. 547-556.
16. Penned by Associate Justice Pampio A. Abarientos with Executive Justice Arsenio J.
Magpale and Associate Justice Romeo F. Barza, concurring; CA rollo, p. 574.
17. Davao City Water District v. Civil Service Commission, G.R. Nos. 95237-38, 13
September 1991, 201 SCRA 593.
18. CSC Resolution No. 05037; rollo, pp. 57-64.
19. CA rollo, pp. 2-34.

20. Two board members were present out of the 3 working board members at that time; the
board is composed of five directors. (Rollo, pp. 70-71.)
21. Complaint for Quo Warranto; rollo, pp. 32-49.

22. 122 Phil. 1091 (1965). cAHITS
23. Feliciano received the notice on the day of the scheduled hearing.
24. Rollo, pp. 24-28.

25. Rollo, p. 31.
26. En Banc Resolution of this Court; Entry of Judgment dated 14 November 2006; rollo of
G.R. No. 172141, p. 374.
27. Metro Drug Distribution, Inc. v. Metro Drug Corporation Employees Association-
Federation of Free Workers, G.R. No. 142666, 26 September 2005, 471 SCRA 45, 56;
Suntay v. Cojuangco-Suntay, 360 Phil. 932, 939 (1998); Cuison v. Court of Appeals, 351
Phil. 1089, 1102 (1998); Sanchez. v. Court of Appeals, 345 Phil. 155, 179 (1997);
Cochingyan, Jr. v. Cloribel, 167 Phil. 106, 131 (1977).
28. Coca-Cola Bottlers, Philippines, Inc. v. Daniel, G.R. No. 156893, 21 June 2005, 460 SCRA
494, 504, citing Vda. de Daffon v. Court of Appeals, 436 Phil. 233, 242 (2002); Duero v.
Court of Appeals, 424 Phil. 12, 20 (2002); De Baron v. Court of Appeals, 420 Phil. 474,
482 (2001).
29. Cuison v. Court of Appeals, supra note 27. TCDcSE
30. AN ACT FURTHER AMENDING PRESIDENTIAL DECREE NO. 198, OTHERWISE KNOWN
AS THE "PROVINCIAL WATER UTILITIES ACT OF 1973", AS AMENDED.
31. RULES OF COURT, Rule 66, Section 1.

32. Id., Section 5.
33. Mendoza v. Allas, 362 Phil. 238, 244-245 (1999).
34. Luna v. Rodriguez, 36 Phil. 401, 403 (1917).
35. G.R. No. L-28184, 11 September 1980, 99 SCRA 628.
36. Id.
37. Rollo, pp. 26-27. ADaECI
38. Garcia v. Perez, supra note 35.

39. Rollo, p. 13.
40. FURTHER AMENDING PRESIDENTIAL DECREE NO. 198, OTHERWISE KNOWN AS "THE
PROVINCIAL WATER UTILITIES ACT OF 1973", AS AMENDED.
41. G.R. No. 63742, 17 April 1989, 172 SCRA 253.
42. Supra note 17.

43. G.R. No. L-81490, 31 August 1988, 165 SCRA 272.
44. With original charter.
45. RULES OF COURT, Rule 7.

46. Chemphil Export & Import Corporation v. Court of Appeals, G.R. Nos. 112438-39, 12
December 1995, 251 SCRA 257, 291-292; Hongkong and Shanghai Banking Corporation
Limited v. Catalan, G.R. Nos. 159590-91, 18 October 2004, 440 SCRA 498, 513; Garcia v.
Sandiganbayan, G.R. No. 165835, 22 June 2005, 460 SCRA 600, 637-638; Guaranteed
Hotels, Inc. v. Baltao, G.R. No. 164338, 17 January 2005, 448 SCRA 738, 744; San Juan
v. Arambulo, Sr., G.R. No. 143217, 14 December 2005, 477 SCRA 725, 728; Navarro Vda.
de Taroma v. Taroma, G.R. No. 160214, 16 December 2005, 478 SCRA 336, 345-346;
Maricalum Mining Corporation v. Brion, G.R. Nos. 157696-97, 9 February 2006, 482
SCRA 87, 105-106; Philippine Airlines Employees Savings and Loan Association, Inc. v.
Philippine Airlines, Inc., G.R. No. 161110, 30 March 2006, 485 SCRA 632, 646; Lim v.
Vianzon, G.R. No. 137187, 3 August 2006, 497 SCRA 482, 494; Huibonhoa v. Concepcion,
G.R. No. 153785, 3 August 2006, 497 SCRA 562, 569; Santos v. Parañaque Kings
Enterprises, Inc., G.R. No. 153562, 23 October 2006, 505 SCRA 48, 53.
TAECSD
47. Mondragon Leisure and Resorts Corporation v. United Coconut Planters Bank, G.R. No.
154187, 14 April 2004, 427 SCRA 585, 590; Ao-As v. Court of Appeals, G.R. No. 128464,
20 June 2006, 491 SCRA 339, 353.
48. Tagaro v. Garcia, G.R. No. 158568, 17 November 2004, 442 SCRA 562, 571-572;
Municipality of Taguig v. Court of Appeals, G.R. No. 142619, 13 September 2005, 469
SCRA 588, 595.
49. Guevara v. BPI Securities Corporation, G.R. No. 159786, 15 August 2006, 498 SCRA 613,
637-638; Guaranteed Hotels, Inc. v. Baltao, supra note 46; San Juan v. Arambulo, Sr.,
supra note 46. CDHAcI

SECOND DIVISION
[G.R. No. 162272. April 7, 2009.]
SANTIAGO C. DIVINAGRACIA , petitioner, vs . CONSOLIDATED BROADCASTING SYSTEM, INC.

and PEOPLE'S BROADCASTING SERVICE, INC. , respondents.
DECISION
TINGA , J : p
Does the National Telecommunications Commission (NTC) have jurisdiction over complaints seeking the
cancellation of certi cates of public convenience (CPCs) and other licenses it had issued to the holders of duly-
issued legislative franchises on the ground that the franchisees had violated the terms of their franchises? The
Court, in resolving that question, takes the opportunity to elaborate on the dynamic behind the regulation of
broadcast media in the Philippines, particularly the interrelationship between the twin franchise and licensing
requirements. cCSTHA
I.
Respondents Consolidated Broadcasting System, Inc. (CBS) and People's Broadcasting Service, Inc. (PBS)
were incorporated in 1961 and 1965, respectively. Both are involved in the operation of radio broadcasting
services in the Philippines, they being the grantees of legislative franchises by virtue of two laws, Republic Act
(R.A.) No. 7477 and R.A. No. 7582. R.A. No. 7477, enacted on 5 May 1992, granted PBS a legislative franchise to
construct, install, maintain and operate radio and television stations within the Philippines for a period of 25 years.
R.A. No. 7582, enacted on 27 May 1992, extended CBS's previous legislative franchise 1 to operate radio stations
for another 25 years. The CBS and PBS radio networks are two of the three networks that comprise the well-
known "Bombo Radyo Philippines". 2
Section 9 of R.A. No. 7477 and Section 3 of R.A. No. 7582 contain a common provision predicated on the
"constitutional mandate to democratize ownership of public utilities." 3 The common provision states:
SEC. 9. Democratization of ownership. — In compliance with the constitutional mandate to
democratize ownership of public utilities, the herein grantee shall make public offering through the stock
exchanges of at least thirty percent (30%) of its common stocks within a period of three (3) years from the
date of effectivity of this Act: Provided, That no single person or entity shall be allowed to own more than ve
percent (5%) of the stock offerings. 4
It further appears that following the enactment of these franchise laws, the NTC issued four (4) Provisional
Authorities to PBS and six (6) Provisional Authorities to CBS, allowing them to install, operate and maintain various
AM and FM broadcast stations in various locations throughout the nation. 5 These Provisional Authorities were
issued between 1993 to 1998, or after the enactment of R.A. No. 7477 and R.A. No. 7582. cSICHD
Petitioner Santiago C. Divinagracia 6 led two complaints both dated 1 March 1999 with the NTC,
respectively lodged against PBS 7 and CBS. 8 He alleged that he was "the actual and bene cial owner of Twelve
percent (12%) of the shares of stock" of PBS and CBS separately, 9 and that despite the provisions in R.A. No.
7477 and R.A. No. 7582 mandating the public offering of at least 30% of the common stocks of PBS and CBS,
both entities had failed to make such offering. Thus, Divinagracia commonly argued in his complaints that the
failure on the part of PBS and CBS "to comply with the mandate of their legislative franchise is a misuse of the
franchise conferred upon it by law and it continues to exercise its franchise in contravention of the law to the
detriment of the general public and of complainant who are unable to enjoy the bene ts being offered by a publicly
listed company." 1 0 He thus prayed for the cancellation of all the Provisional Authorities or CPCs of PBS and CBS
on account of the alleged violation of the conditions set therein, as well as in its legislative franchises. 1 1
On 1 August 2000, the NTC issued a consolidated decision dismissing both complaints. 1 2 While the NTC
posited that it had full jurisdiction to revoke or cancel a Provisional Authority or CPC for violations or infractions of
the terms and conditions embodied therein, 1 3 it held that the complaints actually constituted collateral attacks on
the legislative franchises of PBS and CBS since the sole issue for determination was whether the franchisees had
violated the mandate to democratize ownership in their respective legislative franchises. The NTC ruled that it was
not competent to render a ruling on that issue, the same being more properly the subject of an action for quo
warranto to be commenced by the Solicitor General in the name of the Republic of the Philippines, pursuant to Rule
66 of the Rules of Court. 1 4
After the NTC had denied Divinagracia's motion for reconsideration, 1 5 he led a petition for review under
Rule 43 of the Rules of Court with the Court of Appeals. 1 6 On 18 February 2004, the Court of Appeals rendered a
decision 1 7 upholding the NTC. The appellate court agreed with the earlier conclusion that the complaints were
indeed a collateral attack on the legislative franchises of CBS and PBS and that a quo warranto action was the
proper mode to thresh out the issues raised in the complaints.
Hence this petition, which submits as the principal issue, whether the NTC, with its retinue of regulatory
powers, is powerless to cancel Provisional Authorities and Certi cates of Public Convenience it issued to
legislative franchise-holders. That central issue devolves into several narrower arguments, some of which hinge on
the authority of the NTC to cancel the very Provisional Authorities and CPCs which it is empowered to issue, as
distinguished from the legislative franchise itself, the cancellation of which Divinagracia points out was not the
relief he had sought from the NTC. Questions are raised as to whether the complaints did actually constitute a
collateral attack on the legislative franchises. AacCIT
Yet this case ultimately rests to a large degree on fundamentals. Divinagracia's case rotates on the singular
thesis that the NTC has the power to cancel Provisional Authorities and CPCs, or in effect, the power to cancel the
licenses that allow broadcast stations to operate. The NTC, in its assailed Decision, expressly admits that it has
such power even as it refrained from exercising the same. 1 8 The Court has yet to engage in a deep inquiry into the
question of whether the NTC has the power to cancel the operating licenses of entities to whom Congress has
issued franchises to operate broadcast stations, especially on account of an alleged violation of the terms of their
franchises. This is the opportune time to examine the issue.
II.
To fully understand the scope and dimensions of the regulatory realm of the NTC, it is essential to review
the legal background of the regulation process. As operative fact, any person or enterprise which wishes to
operate a broadcast radio or television station in the Philippines has to secure a legislative franchise in the form of
a law passed by Congress, and thereafter a license to operate from the NTC.
The franchise requirement traces its genesis to Act No. 3846, otherwise known as the Radio Control Act,
enacted in 1931. 1 9 Section 1 thereof provided that "[n]o person, rm, company, association or corporation shall
construct, install, establish, or operate . . . a radio broadcasting station, without having rst obtained a franchise
therefor from the National Assembly . . ." 2 0 Section 2 of the law prohibited the construction or installation of any
station without a permit granted by the Secretary of Public Works and Communication, and the operation of such
station without a license issued by the same Department Secretary. 2 1 The law likewise empowered the Secretary
of Public Works and Communication "to regulate the establishment, use, and operation of all radio stations and of
all forms of radio communications and transmissions within the Philippine Islands and to issue such rules and
regulations as may be necessary." 2 2 SITCEA
Noticeably, our Radio Control Act was enacted a few years after the United States Congress had passed the
Radio Act of 1927. American broadcasters themselves had asked their Congress to step in and regulate the radio
industry, which was then in its infancy. The absence of government regulation in that market had led to the
emergence of hundreds of radio broadcasting stations, each using frequencies of their choice and changing
frequencies at will, leading to literal chaos on the airwaves. It was the Radio Act of 1927 which introduced a
licensing requirement for American broadcast stations, to be overseen eventually by the Federal Communications
Commission (FCC). 2 3
This pre-regulation history of radio broadcast stations illustrates the continuing necessity of a government
role in overseeing the broadcast media industry, as opposed to other industries such as print media and the
Internet. 2 4 Without regulation, the result would be a free-for-all market with rival broadcasters able with impunity
to sabotage the use by others of the airwaves. 2 5 Moreover, the airwaves themselves, the very medium utilized by
broadcast — are by their very nature not susceptible to appropriation, much less be the object of any claim of
private or exclusive ownership. No private individual or enterprise has the physical means, acting alone to actualize
exclusive ownership and use of a particular frequency. That end, desirable as it is among broadcasters, can only be
accomplished if the industry itself is subjected to a regime of government regulation whereby broadcasters
receive entitlement to exclusive use of their respective or particular frequencies, with the State correspondingly
able by force of law to confine all broadcasters to the use of the frequencies assigned to them.
Still, the dominant jurisprudential rationale for state regulation of broadcast media is more sophisticated
than a mere recognition of a need for the orderly administration of the airwaves. After all, a united broadcast
industry can theoretically achieve that goal through determined self-regulation. The key basis for regulation is
rooted in empiricism — "that broadcast frequencies are a scarce resource whose use could be regulated and
rationalized only by the Government." This concept was rst introduced in jurisprudence in the U.S. case of Red
Lion v. Federal Communications Commission. 2 6
Red Lion enunciated the most comprehensive statement of the necessity of government oversight over
broadcast media. The U.S. Supreme Court observed that within years from the introduction of radio broadcasting
in the United States, "it became apparent that broadcast frequencies constituted a scarce resource whose use
could be regulated and rationalized only by the Government. . . without government control, the medium would be
of little use because of the cacophony of competing voices, none of which could be clearly and predictably heard."
The difficulties posed by spectrum scarcity was concretized by the U.S. High Court in this manner: EaIDAT
Scarcity is not entirely a thing of the past. Advances in technology, such as microwave transmission,
have led to more e cient utilization of the frequency spectrum, but uses for that spectrum have also grown
apace. Portions of the spectrum must be reserved for vital uses unconnected with human communication,
such as radio-navigational aids used by aircraft and vessels. Con icts have even emerged between such vital
functions as defense preparedness and experimentation in methods of averting midair collisions through radio
warning devices. "Land mobile services" such as police, ambulance, re department, public utility, and other
communications systems have been occupying an increasingly crowded portion of the frequency spectrum
and there are, apart from licensed amateur radio operators' equipment, 5,000,000 transmitters operated on the
"citizens' band" which is also increasingly congested. Among the various uses for radio frequency space,
including marine, aviation, amateur, military, and common carrier users, there are easily enough claimants to
permit use of the whole with an even smaller allocation to broadcast radio and television uses than now exists.
(citations omitted) 2 7
After interrelating the premise of scarcity of resources with the First Amendment rights of broadcasters,
Red Lion concluded that government regulation of broadcast media was a necessity:
Where there are substantially more individuals who want to broadcast than there are frequencies to
allocate, it is idle to posit an unabridgeable First Amendment right to broadcast comparable to the right of
every individual to speak, write, or publish. If 100 persons want broadcast [395 U.S. 367, 389] licenses but there
are only 10 frequencies to allocate, all of them may have the same "right" to a license; but if there is to be any
effective communication by radio, only a few can be licensed and the rest must be barred from the airwaves. It
would be strange if the First Amendment, aimed at protecting and furthering communications, prevented the
Government from making radio communication possible by requiring licenses to broadcast and by limiting the
number of licenses so as not to overcrowd the spectrum. cDCaTH
This has been the consistent view of the Court. Congress unquestionably has the power to grant and
deny licenses and to eliminate existing stations. No one has a First Amendment right to a license or to
monopolize a radio frequency; to deny a station license because "the public interest" requires it "is not a denial
of free speech".
By the same token, as far as the First Amendment is concerned those who are licensed stand no better
than those to whom licenses are refused. A license permits broadcasting, but the licensee has no
constitutional right to be the one who holds the license or to monopolize a radio frequency to the exclusion of
his fellow citizens. There is nothing in the First Amendment which prevents the Government from requiring a
licensee to share his frequency with others and to conduct himself as a proxy or duciary with obligations to
present those views and voices which are representative of his community and which would otherwise, by
necessity, be barred from the airwaves. 2 8
xxx xxx xxx
Rather than confer frequency monopolies on a relatively small number of licensees, in a Nation of
200,000,000, the Government could surely have decreed that each frequency should be shared among all or
some of those who wish to use it, each being assigned a portion of the broadcast day or the broadcast week.
The ruling and regulations at issue here do not go quite so far. They assert that under speci ed circumstances,
a licensee must offer to make available a reasonable amount of broadcast time to those who have a view
different from that which has already been expressed on his station. The expression of a political
endorsement, or of a personal attack while dealing with a controversial public issue, simply triggers this time
sharing. As we have said, the First Amendment confers no right on licensees to prevent others from
broadcasting on "their" frequencies and no right to an unconditional monopoly of a scarce resource which the
Government has denied others the right to use.
In terms of constitutional principle, and as enforced sharing of a scarce resource, the personal attack
and political editorial rules are indistinguishable from the equal-time provision of §315, a speci c enactment
of Congress requiring stations to set aside reply time under speci ed circumstances and to which the fairness
doctrine and these constituent regulations are important complements. That provision, which has been part of
the law since 1927, Radio Act of 1927, §18, 44 Stat. 1170, has been held valid by this Court as an obligation of
the licensee relieving him of any power in any way to prevent or censor the broadcast, and thus insulating him
from liability for defamation. The constitutionality of the statute under the First Amendment was
unquestioned. (citations omitted) 2 9CTSHDI
As made clear in Red Lion, the scarcity of radio frequencies made it necessary for the government to step in
and allocate frequencies to competing broadcasters. In undertaking that function, the government is impelled to
adjudge which of the competing applicants are worthy of frequency allocation. It is through that role that it
becomes legally viable for the government to impose its own values and goals through a regulatory regime that
extends beyond the assignation of frequencies, notwithstanding the free expression guarantees enjoyed by
broadcasters. As the government is put in a position to determine who should be worthy to be accorded the
privilege to broadcast from a nite and limited spectrum, it may impose regulations to see to it that broadcasters
promote the public good deemed important by the State, and to withdraw that privilege from those who fall short
of the standards set in favor of other worthy applicants.
Such conditions are peculiar to broadcast media because of the scarcity of the airwaves. Indeed, any
attempt to impose such a regulatory regime on a medium that is not belabored under similar physical conditions,
such as print media, will be clearly antithetical to democratic values and the free expression clause. This Court,
which has adopted the "scarcity of resources" doctrine in cases such as Telecom & Broadcast Attys. of the Phils.,
Inc. v. COMELEC, 3 0 emphasized the distinction citing Red Lion:
Petitioners complain that B.P. Blg. 881, §92 singles out radio and television stations to provide free air
time. They contend that newspapers and magazines are not similarly required as, in fact, in Philippine Press
Institute v. COMELEC we upheld their right to the payment of just compensation for the print space they may
provide under §90.
The argument will not bear analysis. It rests on the fallacy that broadcast media are entitled to the same
treatment under the free speech guarantee of the Constitution as the print media. There are important
differences in the characteristics of the two media, however, which justify their differential treatment for free
speech purposes. Because of the physical limitations of the broadcast spectrum, the government must, of
necessity, allocate broadcast frequencies to those wishing to use them. There is no similar justi cation for
government allocation and regulation of the print media. TIDaCE
In the allocation of limited resources, relevant conditions may validly be imposed on the grantees or
licensees. The reason for this is that, as already noted, the government spends public funds for the allocation
and regulation of the broadcast industry, which it does not do in the case of the print media. To require the
radio and television broadcast industry to provide free air time for the COMELEC Time is a fair exchange for
what the industry gets. 3 1
Other rationales may have emerged as well validating state regulation of broadcast media, 3 2 but the reality
of scarce airwaves remains the primary, indisputable and indispensable justi cation for the government regulatory
role. The integration of the scarcity doctrine into the jurisprudence on broadcast media illustrates how the
libertarian ideal of the free expression clause may be tempered and balanced by actualities in the real world while
preserving the core essence of the constitutional guarantee. Indeed, without government regulation of the
broadcast spectrum, the ability of broadcasters to clearly express their views would be inhibited by the anarchy of
competition. Since the airwaves themselves are not susceptible to physical appropriation and private ownership, it
is but indispensable that the government step in as the guardian of the spectrum.
Reference to the scarcity doctrine is necessary to gain a full understanding of the paradigm that governs the
state regulation of broadcast media. That paradigm, as it exists in the United States, is contextually similar to our
own, except in one very crucial regard — the dual franchise/license requirements we impose.
III.
Recall that the Radio Control Act speci cally required the obtention of a legislative franchise for the
operation of a radio station in the Philippines. When the Public Service Act was enacted in 1936, the Public Service
Commission (PSC) was vested with jurisdiction over "public services", including over "wire or wireless
broadcasting stations." 3 3 However, among those speci cally exempted from the regulatory reach of the PSC
were "radio companies, except with respect to the xing of rates." 3 4 Thus, following the Radio Control Act, the
administrative regulation of "radio companies" remained with the Secretary of Public Works and Communications.
It appears that despite the advent of commercial television in the 1950s, no corresponding amendment to either
the Radio Control Act or the Public Service Act was passed to reflect that new technology then. aTEACS
Shortly after the 1972 declaration of martial law, President Marcos issued Presidential Decree (P.D.) No. 1,
which allocated to the Board of Communications the authority to issue CPCs for the operation of radio and
television broadcasting systems and to grant permits for the use of radio frequencies for such broadcasting
systems. In 1974, President Marcos promulgated Presidential Decree No. 576-A, entitled "Regulating the
Ownership and Operation of Radio and Television Stations and for other Purposes." Section 6 of that law reads:
SEC. 6. All franchises, grants, licenses, permits, certi cates or other forms of authority to operate
radio or television broadcasting systems shall terminate on December 31, 1981. Thereafter, irrespective of any
franchise, grant, license, permit, certi cate or other forms of authority to operate granted by any o ce, agency
or person, no radio or television station shall be authorized to operated without the authority of the Board of
Communications and the Secretary of Public Works and Communications or their successors who have the
right and authority to assign to quali ed parties frequencies, channels or other means of identifying
broadcasting systems; Provided, however, that any con ict over, or disagreement with a decision of the
aforementioned authorities may be appealed nally to the O ce of the President within fteen days from the
date the decision is received by the party in interest.
A few years later, President Marcos promulgated Executive Order (E.O.) No. 546, establishing among others
the National Telecommunications Commission. Section 15 thereof enumerates the various functions of the NTC.
SEC. 15. Functions of the Commission. — The Commission shall exercise the following functions:
a. Issue Certi cate of Public Convenience for the operation of communications utilities and
services, radio communications systems, wire or wireless telephone or telegraph systems, radio
and television broadcasting system and other similar public utilities;
b. Establish, prescribe and regulate areas of operation of particular operators of public service
communications; and determine and prescribe charges or rates pertinent to the operation of such
public utility facilities and services except in cases where charges or rates are established by
international bodies or associations of which the Philippines is a participating member or by
bodies recognized by the Philippine Government as the proper arbiter of such charges or rates;
c. Grant permits for the use of radio frequencies for wireless telephone and telegraph systems and
radio communication systems including amateur radio stations and radio and television
broadcasting systems;
d. Sub-allocate series of frequencies of bands allocated by the International Telecommunications
Union to the specific services;
e. Establish and prescribe rules, regulations, standards, speci cations in all cases related to the
issued Certificate of Public Convenience and administer and enforce the same;
f. Coordinate and cooperate with government agencies and other entities concerned with any
aspect involving communications with a view to continuously improve the communications
service in the country;
THAECc
g. Promulgate such rules and regulations, as public safety and interest may require, to encourage a
larger and more effective use of communications, radio and television broadcasting facilities,
and to maintain effective competition among private entities in these activities whenever the
Commission finds it reasonably feasible;
h. Supervise and inspect the operation of radio stations and telecommunications facilities;
i. Undertake the examination and licensing of radio operators;
j. Undertake, whenever necessary, the registration of radio transmitters and transceivers; and
k. Perform such other functions as may be prescribed by law.
These enactments were considered when in 2003 the Court de nitively resolved that the operation of a
radio or television station does require a congressional franchise. In Associated Communications & Wireless
Services v. NTC, 3 5 the Court took note of the confusion then within the broadcast industry as to whether the
franchise requirement rst ordained in the 1931 Radio Control Act remained extant given the enactment of P.D.
No. 576-A in 1974 and E.O. No. 546 in 1979. Notably, neither law had speci cally required legislative franchises for
the operation of broadcast stations. Nonetheless, the Court noted that Section 1 of P.D. No. 576-A had expressly
referred to the franchise requirement in stating that "[n]o radio station or television channel may obtain a franchise
unless it has su cient capital on the basis of equity for its operation for at least one year. . . ." 3 6 Section 6 of that
law made a similar reference to the franchise requirement. 3 7 From those references, the Court concluded that the
franchise requirement under the Radio Control Act was not repealed by P.D. No. 576-A. 3 8 DTESIA
Turning to E.O. No. 546, the Court arrived at a similar conclusion, despite a Department of Justice Opinion
stating that the 1979 enactment had dispensed with the congressional franchise requirement. The Court clari ed
that the 1989 ruling in Albano v. Reyes, to the effect that "franchises issued by Congress are not required before
each and every public utility may operate" did not dispense with the franchise requirement insofar as broadcast
stations are concerned.
Our ruling in Albano that a congressional franchise is not required before "each and every public utility
may operate" should be viewed in its proper light. Where there is a law such as P.D. No. 576-A which requires a
franchise for the operation of radio and television stations, that law must be followed until subsequently
repealed. As we have earlier shown, however, there is nothing in the subsequent E.O. No. 546 which evinces an
intent to dispense with the franchise requirement. In contradistinction with the case at bar, the law applicable
in Albano, i.e., E.O. No. 30, did not require a franchise for the Philippine Ports Authority to take over, manage
and operate the Manila International Port Complex and undertake the providing of cargo handling and port
related services thereat. Similarly, in Philippine Airlines, Inc. v. Civil Aeronautics Board, et al. , we ruled that a
legislative franchise is not necessary for the operation of domestic air transport because "there is nothing in
the law nor in the Constitution which indicates that a legislative franchise is an indispensable requirement for
an entity to operate as a domestic air transport operator." Thus, while it is correct to say that speci ed
agencies in the Executive Branch have the power to issue authorization for certain classes of public utilities,
this does not mean that the authorization or CPC issued by the NTC dispenses with the requirement of a
franchise as this is clearly required under P.D. No. 576-A. 3 9
The Court further observed that Congress itself had accepted it as a given that a legislative franchise is still
required to operate a broadcasting station in the Philippines.
That the legislative intent is to continue requiring a franchise for the operation of radio and television
broadcasting stations is clear from the franchises granted by Congress after the effectivity of E.O. No. 546 in
1979 for the operation of radio and television stations. Among these are: (1) R.A. No. 9131 dated April 24,
2001, entitled "An Act Granting the Iddes Broadcast Group, Inc., a Franchise to Construct, Install, Establish,
Operate and Maintain Radio and Television Broadcasting Stations in the Philippines"; (2) R.A. No. 9148 dated
July 31, 2001, entitled "An Act Granting the Hypersonic Broadcasting Center, Inc., a Franchise to Construct,
Install, Establish, Operate and Maintain Radio Broadcasting Stations in the Philippines;" and (3) R.A. No. 7678
dated February 17, 1994, entitled "An Act Granting the Digital Telecommunication Philippines, Incorporated, a
Franchise to Install, Operate and Maintain Telecommunications Systems Throughout the Philippines." All three
franchises require the grantees to secure a CPCN/license/permit to construct and operate their
stations/systems. Likewise, the Tax Reform Act of 1997 provides in Section 119 for tax on franchise of radio
and/or television broadcasting companies . . . 4 0
IaHCAD
Associated Communications makes clear that presently broadcast stations are still required to obtain a
legislative franchise, as they have been so since the passage of the Radio Control Act in 1931. By virtue of this
requirement, the broadcast industry falls within the ambit of Section 11, Article XII of the 1987 Constitution, the
one constitutional provision concerned with the grant of franchises in the Philippines. 4 1 The requirement of a
legislative franchise likewise differentiates the Philippine broadcast industry from that in America, where there is
no need to secure a franchise from the U.S. Congress.
It is thus clear that the operators of broadcast stations in the Philippines must secure a legislative franchise,
a requirement imposed by the Radio Control Act of 1931 and accommodated under the 1987 Constitution. At the
same time, the Court in Associated Communications referred to another form of "permission" required of
broadcast stations, that is the CPC issued by the NTC. What is the source of such requirement?
The Radio Control Act had also obliged radio broadcast stations to secure a permit from the Secretary of
Commerce and Industry 4 2 prior to the construction or installation of any station. 4 3 Said Department Secretary
was also empowered to regulate "the establishment, use and operation of all radio stations and of all forms of
radio communications and transmission within the Philippines." 4 4 Among the speci c powers granted to the
Secretary over radio stations are the approval or disapproval of any application for the construction, installation,
establishment or operation of a radio station 4 5 and the approval or disapproval of any application for renewal of
station or operation license. 4 6
As earlier noted, radio broadcasting companies were exempted from the jurisdiction of the defunct Public
Service Commission except with respect to their rates; thus, they did not fall within the same regulatory regime as
other public services, the regime which was characterized by the need for CPC or CPCN. However, following the
Radio Control Act, it became clear that radio broadcast companies need to obtain a similar license from the
government in order to operate, at that time from the Department of Public Works and Communications. aHcACI
Then, as earlier noted, in 1972, President Marcos through P.D. No. 1, transferred to the Board of
Communications the function of issuing CPCs for the operation of radio and television broadcasting systems, as
well as the granting of permits for the use of radio frequencies for such broadcasting systems. With the creation
of the NTC, through E.O. No. 546 in 1979, that agency was vested with the power to "[i]ssue certi cate[s] of public
convenience for the operation of. . . radio and television broadcasting system[s]." 4 7 That power remains extant
and undisputed to date.
This much thus is clear. Broadcast and television stations are required to obtain a legislative franchise, a
requirement imposed by the Radio Control Act and a rmed by our ruling in Associated Broadcasting . After
securing their legislative franchises, stations are required to obtain CPCs from the NTC before they can operate
their radio or television broadcasting systems. Such requirement while traceable also to the Radio Control Act,
currently finds its basis in E.O. No. 546, the law establishing the NTC.
From these same legal premises, the next and most critical question is whether the NTC has the power to
cancel the CPCs it has issued to legislative franchisees.
IV.
The complexities of our dual franchise/license regime for broadcast media should be understood within the
context of separation of powers. The right of a particular entity to broadcast over the airwaves is established by
law — i.e., the legislative franchise — and determined by Congress, the branch of government tasked with the
creation of rights and obligations. As with all other laws passed by Congress, the function of the executive branch
of government, to which the NTC belongs, is the implementation of the law. In broad theory, the legal obligation of
the NTC once Congress has established a legislative franchise for a broadcast media station is to facilitate the
operation by the franchisee of its broadcast stations. However, since the public administration of the airwaves is a
requisite for the operation of a franchise and is moreover a highly technical function, Congress has delegated to
the NTC the task of administration over the broadcast spectrum, including the determination of available
bandwidths and the allocation of such available bandwidths among the various legislative franchisees. The
licensing power of the NTC thus arises from the necessary delegation by Congress of legislative power geared
towards the orderly exercise by franchisees of the rights granted them by Congress.
Congress may very well in its wisdom impose additional obligations on the various franchisees and
accordingly delegate to the NTC the power to ensure that the broadcast stations comply with their obligations
under the law. Because broadcast media enjoys a lesser degree of free expression protection as compared to
their counterparts in print, these legislative restrictions are generally permissible under the Constitution. Yet no
enactment of Congress may contravene the Constitution and its Bill of Rights; hence, whatever restrictions are
imposed by Congress on broadcast media franchisees remain susceptible to judicial review and analysis under
the jurisprudential framework for scrutiny of free expression cases involving the broadcast media. ScaEIT
The restrictions enacted by Congress on broadcast media franchisees have to pass the mettle of
constitutionality. On the other hand, the restrictions imposed by an administrative agency such as the NTC on
broadcast media franchisees will have to pass not only the test of constitutionality, but also the test of authority
and legitimacy, i.e., whether such restrictions have been imposed in the exercise of duly delegated legislative
powers from Congress. If the restriction or sanction imposed by the administrative agency cannot trace its origin
from legislative delegation, whether it is by virtue of a speci c grant or from valid delegation of rule-making power
to the administrative agency, then the action of such administrative agency cannot be sustained. The life and
authority of an administrative agency emanates solely from an Act of Congress, and its faculties con ned within
the parameters set by the legislative branch of government.
We earlier replicated the various functions of the NTC, as established by E.O. No. 546. One can readily notice
that even as the NTC is vested with the power to issue CPCs to broadcast stations, it is not expressly vested with
the power to cancel such CPCs, or otherwise empowered to prevent broadcast stations with duly issued
franchises and CPCs from operating radio or television stations.
In contrast, when the Radio Control Act of 1931 maintained a similar requirement for radio stations to
obtain a license from a government o cial (the Secretary of Commerce and Industry), it similarly empowered the
government, through the Secretary of Public Works and Communications, to suspend or revoke such license, as
indicated in Section 3 (m):
SEC. 3. The Secretary of Public Works and Communications is hereby empowered, to regulate the
construction or manufacture, possession, control, sale and transfer of radio transmitters or transceivers
(combination transmitter-receiver) and the establishment, use, the * operation of all radio stations and of all
forms of radio communications and transmissions within the Philippines. In addition to the above he
shall have the following specific powers and duties:
(m) He may, at his direction * bring criminal action against violators of the radio laws or
the regulations and con scate the radio apparatus in case of illegal operation; or simply suspend
or revoke the offender's station or operator licenses or refuse to renew such licenses; or just
reprimand and warn the offenders; 4 8
Section 3 (m) begets the question — did the NTC retain the power granted in 1931 to the Secretary of Public
Works and Communications to " . . . suspend or revoke the offender's station or operator licenses or refuse to
renew such licenses"? We earlier adverted to the statutory history. The enactment of the Public Service Act in 1936
did not deprive the Secretary of regulatory jurisdiction over radio stations, which included the power to impose
nes. In fact, the Public Service Commission was precluded from exercising such jurisdiction, except with respect
to the fixing of rates. DcAEIS
Then, in 1972, the regulatory authority over broadcast media was transferred to the Board of
Communications by virtue of P.D. No. 1, which adopted, approved, and made as part of the law of the land the
Integrated Reorganization Plan which was prepared by the Commission on Reorganization. 4 9 Among the cabinet
departments affected by the plan was the Department of Public Works and Communications, which was now
renamed the Department of Public Works, Transportation and Communication. 5 0 New regulatory boards under
the administrative supervision of the Department were created, including the Board of Communications. 5 1
The functions of the Board of Communications were enumerated in Part X, Chapter I, Article III, Sec. 5 of the
Integrated Reorganization Plan. 5 2 What is noticeably missing from these enumerated functions of the Board of
Communications is the power to revoke or cancel CPCs, even as the Board was vested the power to issue the
same. That same pattern held true in 1976, when the Board of Communications was abolished by E.O. No. 546. 5 3
Said executive order, promulgated by then President Marcos in the exercise of his legislative powers, created the
NTC but likewise withheld from it the authority to cancel licenses and CPCs, even as it was empowered to issue
CPCs. Given the very speci c functions allocated by law to the NTC, it would be very di cult to recognize any
intent to allocate to the Commission such regulatory functions previously granted to the Secretary of Public Works
and Communications, but not included in the exhaustive list of functions enumerated in Section 15.
Certainly, petitioner fails to point to any provision of E.O. No. 546 authorizing the NTC to cancel licenses.
Neither does he cite any provision under P.D. No. 1 or the Radio Control Act, even if Section 3 (m) of the latter law
provides at least, the starting point of a fair argument. Instead, petitioner relies on the power granted to the Public
Service Commission to revoke CPCs or CPCNs under Section 16 (m) of the Public Service Act. 5 4 That argument
has been irrefragably refuted by Section 14 of the Public Service Act, and by jurisprudence, most especially RCPI v.
NTC. 5 5 As earlier noted, at no time did radio companies fall under the jurisdiction of the Public Service
Commission as they were expressly excluded from its mandate under Section 14. In addition, the Court ruled in
RCPI that since radio companies, including broadcast stations and telegraphic agencies, were never under the
jurisdiction of the Public Service Commission except as to rate- xing, that Commission's authority to impose nes
did not carry over to the NTC even while the other regulatory agencies that emanated from the Commission did
retain the previous authority their predecessor had exercised. 5 6 No provision in the Public Service Act thus can be
relied upon by the petitioner to claim that the NTC has the authority to cancel CPCs or licenses. cASIED
It is still evident that E.O. No. 546 provides no explicit basis to assert that the NTC has the power to cancel
the licenses or CPCs it has duly issued, even as the government o ce previously tasked with the regulation of
radio stations, the Secretary of Public Works and Communications, previously possessed such power by express
mandate of law. In order to sustain petitioner's premise, the Court will be unable to rely on an
unequivocally current and extant provision of law that justi es the NTC's power to cancel CPCs.
Petitioner suggests that since the NTC has the power to issue CPCs, it necessarily has the power to revoke the
same. One might also argue that through the general rule-making power of the NTC, we can discern a right of the
NTC to cancel CPCs.
We must be mindful that the issue for resolution is not a run-of-the-mill matter which would be settled with
ease with the application of the principles of statutory construction. It is at this juncture that the constitutional
implications of this case must ascend to preeminence.
A.
It is beyond question that respondents, as with all other radio and television broadcast stations, nd shelter
in the Bill of Rights, particularly Section 3, Article III of the Constitution. At the same time, as we have labored
earlier to point out, broadcast media stands, by reason of the conditions of scarcity, within a different tier of
protection from print media, which unlike broadcast, does not have any regulatory interaction with the government
during its operation.
Still, the fact that state regulation of broadcast media is constitutionally justi ed does not mean that its
practitioners are precluded from invoking Section 3, Article III of the Constitution in their behalf. Far from it. Our
democratic way of life is actualized by the existence of a free press, whether print media or broadcast media. As
with print media, free expression through broadcast media is protected from prior restraint or subsequent
punishment. The franchise and licensing requirements are mainly impositions of the laws of physics which would
stand to periodic reassessment as technology advances. The science of today renders state regulation as a
necessity, yet this should not encumber the courts from accommodating greater freedoms to broadcast media
when doing so would not interfere with the existing legitimate state interests in regulating the industry.
In FCC v. League of Women Voters of California , 5 7 the U.S. Supreme Court reviewed a law prohibiting
noncommercial broadcast stations that received funding from a public corporation from "engaging in
editorializing". The U.S. Supreme Court acknowledged the differentiated First Amendment standard of review that
applied to broadcast media. Still, it struck down the restriction, holding that "[the] regulation impermissibly
sweeps within its prohibition a wide range of speech by wholly private stations on topics that do not take a
directly partisan stand or that have nothing whatever to do with federal, state, or local government." 5 8 We are
similarly able to maintain delity to the fundamental rights of broadcasters even while upholding the rationale
behind the regulatory regime governing them. ADcEST
Should petitioner's position that the NTC has the power to cancel CPCs or licenses it has issued to
broadcast stations although they are in the rst place empowered by their respective franchise to exercise their
rights to free expression and as members of a free press, be adopted broadcast media would be encumbered by
another layer of state restrictions. As things stand, they are already required to secure a franchise from Congress
and a CPC from the NTC in order to operate. Upon operation, they are obliged to comply with the various
regulatory issuances of the NTC, which has the power to impose fees and nes and other mandates it may deem
fit to prescribe in the exercise of its rule-making power.
The fact that broadcast media already labors under this concededly valid regulatory framework necessarily
creates inhibitions on its practitioners as they operate on a daily basis. Newspapers are able to print out their daily
editions without fear that a government agency such as the NTC will be able to suspend their publication or ne
them based on their content. Broadcast stations do already operate with that possibility in mind, and that
circumstance ineluctably restrains its content, notwithstanding the constitutional right to free expression.
However, the cancellation of a CPC or license to operate of a broadcast station, if we recognize that possibility, is
essentially a death sentence, the most drastic means to inhibit a broadcast media practitioner from exercising the
constitutional right to free speech, expression and of the press.
This judicial philosophy aligns well with the preferred mode of scrutiny in the analysis of cases with
dimensions of the right to free expression. When confronted with laws dealing with freedom of the mind or
restricting the political process, of laws dealing with the regulation of speech, gender, or race as well as other
fundamental rights as expansion from its earlier applications to equal protection, the Court has deemed it
appropriate to apply "strict scrutiny" when assessing the laws involved or the legal arguments pursued that would
diminish the e cacy of such constitutional right. The assumed authority of the NTC to cancel CPCs or licenses, if
sustained, will create a permanent atmosphere of a less free right to express on the part of broadcast media. So
that argument could be sustained, it will have to withstand the strict scrutiny from this Court.
Strict scrutiny entails that the presumed law or policy must be justi ed by a compelling state or government
interest, that such law or policy must be narrowly tailored to achieve that goal or interest, and that the law or policy
must be the least restrictive means for achieving that interest. It is through that lens that we examine petitioner's
premise that the NTC has the authority to cancel licenses of broadcast franchisees. TcHCIS
B.
In analyzing the compelling government interest that may justify the investiture of authority on the NTC
advocated by petitioner, we cannot ignore the interest of the State as expressed in the respective legislative
franchises of the petitioner, R.A. No. 7477 and R.A. Act No. 7582. Since legislative franchises are extended through
statutes, they should receive recognition as the ultimate expression of State policy. What the legislative franchises
of respondents express is that the Congress, after due debate and deliberation, declares it as State policy that
respondents should have the right to operate broadcast stations. The President of the Philippines, by a xing his
signature to the law, concurs in such State policy.
Allowing the NTC to countermand State policy by revoking respondent's vested legal right to operate
broadcast stations unduly gives to a mere administrative agency veto power over the implementation of the law
and the enforcement of especially vested legal rights. That concern would not arise if Congress had similarly
empowered the NTC with the power to revoke a franchisee's right to operate broadcast stations. But as earlier
stated, there is no such expression in the law, and by presuming such right the Court will be acting contrary to the
stated State interest as expressed in respondents' legislative franchises.
If we examine the particular franchises of respondents, it is readily apparent that Congress has especially
invested the NTC with certain powers with respect to their broadcast operations. Both R.A. No. 7477 5 9 and R.A.
No. 7582 6 0 require the grantee "to secure from the [NTC] the appropriate permits and licenses for its stations",
barring the private respondents from "using any frequency in the radio spectrum without having been authorized
by the [NTC]." At the same time, both laws provided that "[the NTC], however, shall not unreasonably withhold or
delay the grant of any such authority."
An important proviso is stipulated in the legislative franchises, particularly under Section 5 of R.A. No. 7477
and Section 3 of R.A. No. 7582, in relation to Section 11 of R.A. No. 3902.
SEC. 5. Right of Government. — A special right is hereby reserved to the President of the Philippines,
in times of rebellion, public peril, calamity, emergency, disaster or disturbance of peace and order, to
temporarily take over and operate the stations of the grantee, temporarily suspend the operation of any
stations in the interest of public safety, security and public welfare, or authorize the temporary use and
operation thereof by any agency of the Government, upon due compensation to the grantee, for the use of said
stations during the period when they shall be so operated. ACIESH
The provision authorizes the President of the Philippines to exercise considerable infringements on the right
of the franchisees to operate their enterprises and the right to free expression. Such authority nds corollary
constitutional justi cation as well under Section 17, Article XII, which allows the State "in times of national
emergency, when the public interest so requires . . . during the emergency and under reasonable terms prescribed
by it, temporarily take over or direct the operation of any privately-owned public utility or business affected with
public interest." We do not doubt that the President or the State can exercise such authority through the NTC,
which remains an agency within the executive branch of government, but such can be exercised only under limited
and rather drastic circumstances. They still do not vest in the NTC the broad authority to cancel licenses and
permits. CSIHDA
These provisions granting special rights to the President in times of emergency are incorporated in our
understanding of the legislated state policy with respect to the operation by private respondents of their
legislative franchises. There are restrictions to the operation of such franchises, and when these restrictions are
indeed exercised there still may be cause for the courts to review whether said limitations are justi ed despite
Section 3, Article I of the Constitution. At the same time, the state policy as embodied in these franchises is to
restrict the government's ability to impair the freedom to broadcast of the stations only upon the occurrence of
national emergencies or events that compromise the national security.
It should be further noted that even the aforequoted provision does not authorize the President or the
government to cancel the licenses of the respondents. The temporary nature of the takeover or closure of the
station is emphasized in the provision. That fact further disengages the provision from any sense that such
delegated authority can be the source of a broad ruling a rming the right of the NTC to cancel the licenses of
franchisees.
With the legislated state policy strongly favoring the unimpeded operation of the franchisee's stations, it
becomes even more di cult to discern what compelling State interest may be ful lled in ceding to the NTC the
general power to cancel the franchisee's CPC's or licenses absent explicit statutory authorization. This absence of
a compelling state interest strongly disfavors petitioner's cause.
C.
Now, we shall tackle jointly whether a law or policy allowing the NTC to cancel CPCs or licenses is to be
narrowly tailored to achieve that requisite compelling State goal or interest, and whether such a law or policy is the
least restrictive means for achieving that interest. We addressed earlier the di culty of envisioning the compelling
State interest in granting the NTC such authority. But let us assume for argument's sake, that relieving the injury
complained off by petitioner — the failure of private respondents to open up ownership through the initial public
offering mandated by law — is a compelling enough State interest to allow the NTC to extend consequences by
canceling the licenses or CPCs of the erring franchisee. aTIEcA
There is in fact a more appropriate, more narrowly-tailored and least restrictive remedy that is afforded by
the law. Such remedy is that adverted to by the NTC and the Court of Appeals — the resort to quo warranto
proceedings under Rule 66 of the Rules of Court.
Under Section 1 of Rule 66, "an action for the usurpation of a public o ce, position or franchise may be
brought in the name of the Republic of the Philippines against a person who usurps, intrudes into, or unlawfully
holds or exercises public o ce, position or franchise." 6 1 Even while the action is maintained in the name of the
Republic, 6 2 the Solicitor General or a public prosecutor is obliged to commence such action upon complaint, and
upon good reason to believe that any case specified under Section 1 of Rule 66 can be established by proof. 6 3
The special civil action of quo warranto is a prerogative writ by which the Government can call upon any
person to show by what warrant he holds a public o ce or exercises a public franchise. 6 4 It is settled that "[t]he
determination of the right to the exercise of a franchise, or whether the right to enjoy such privilege has been
forfeited by non-user, is more properly the subject of the prerogative writ of quo warranto, the right to assert
which, as a rule, belongs to the State 'upon complaint or otherwise', the reason being that the abuse of a franchise
is a public wrong and not a private injury." 6 5 A forfeiture of a franchise will have to be declared in a direct
proceeding for the purpose brought by the State because a franchise is granted by law and its unlawful exercise is
primarily a concern of Government. 6 6 Quo warranto is speci cally available as a remedy if it is thought that a
government corporation has offended against its corporate charter or misused its franchise. 6 7
The Court of Appeals correctly noted that in PLDT v. NTC , 6 8 the Court had cited quo warranto as the
appropriate recourse with respect to an allegation by petitioner therein that a rival telecommunications competitor
had failed to construct its radio system within the ten (10) years from approval of its franchise, as mandated by its
legislative franchise. 6 9 It is beyond dispute that quo warranto exists as an available and appropriate remedy
against the wrong imputed on private respondents. CTEacH
Petitioners argue that since their prayer involves the cancellation of the provisional authority and CPCs, and
not the legislative franchise, then quo warranto fails as a remedy. The argument is arti cial. The authority of the
franchisee to engage in broadcast operations is derived in the legislative mandate. To cancel the provisional
authority or the CPC is, in effect, to cancel the franchise or otherwise prevent its exercise. By law, the NTC is
incapacitated to frustrate such mandate by unduly withholding or canceling the provisional authority or the CPC
for reasons other than the orderly administration of the frequencies in the radio spectrum.
What should occur instead is the converse. If the courts conclude that private respondents have violated the
terms of their franchise and thus issue the writs of quo warranto against them, then the NTC is obliged to cancel
any existing licenses and CPCs since these permits draw strength from the possession of a valid franchise. If the
point has not already been made clear, then licenses issued by the NTC such as CPCs and provisional authorities
are junior to the legislative franchise enacted by Congress. The licensing authority of the NTC is not on equal
footing with the franchising authority of the State through Congress. The issuance of licenses by the NTC
implements the legislative franchises established by Congress, in the same manner that the executive branch
implements the laws of Congress rather than creates its own laws. And similar to the inability of the executive
branch to prevent the implementation of laws by Congress, the NTC cannot, without clear and proper delegation
by Congress, prevent the exercise of a legislative franchise by withholding or canceling the licenses of the
franchisee.
And the role of the courts, through quo warranto proceedings, neatly complements the traditional
separation of powers that come to bear in our analysis. The courts are entrusted with the adjudication of the legal
status of persons, the final arbiter of their rights and obligations under law. The question of whether a franchisee is
in breach of the franchise specially enacted for it by Congress is one inherently suited to a court of law, and not for
an administrative agency, much less one to which no such function has been delegated by Congress. In the same
way that availability of judicial review over laws does not preclude Congress from undertaking its own remedial
measures by appropriately amending laws, the viability of quo warranto in the instant cases does not preclude
Congress from enforcing its own prerogative by abrogating the legislative franchises of respondents should it be
distressed enough by the franchisees' violation of the franchises extended to them. ACTESI
Evidently, the suggested theory of petitioner to address his plaints simply overpowers the delicate balance
of separation of powers, and unduly grants superlative prerogatives to the NTC to frustrate the exercise of the
constitutional freedom speech, expression, and of the press. A more narrowly-tailored relief that is responsive to
the cause of petitioner not only exists, but is in fact tailor- tted to the constitutional framework of our government
and the adjudication of legal and constitutional rights. Given the current status of the law, there is utterly no reason
for this Court to subscribe to the theory that the NTC has the presumed authority to cancel licenses and CPCs
issued to due holders of legislative franchise to engage in broadcast operations.
V.
An entire subset of questions may arise following this decision, involving issues or situations not presently
before us. We wish to make clear that the only aspect of the regulatory jurisdiction of the NTC that we are ruling
upon is its presumed power to cancel provisional authorities, CPCs or CPCNs and other such licenses required of
franchisees before they can engage in broadcast operations. Moreover, our conclusion that the NTC has no such
power is borne not simply from the statutory language of E.O. No. 546 or the respective stipulations in private
respondents' franchises, but moreso, from the application of the strict scrutiny standard which, despite its weight
towards free speech, still involves the analysis of the competing interests of the regulator and the regulated.
In resolving the present questions, it was of marked impact to the Court that the presumed power to cancel
would lead to utterly fatal consequences to the constitutional right to expression, as well as the legislated right of
these franchisees to broadcast. Other regulatory measures of less drastic impact will have to be assessed on
their own terms in the proper cases, and our decision today should not be accepted or cited as a blanket shearing
of the NTC's regulatory jurisdiction. In addition, considering our own present recognition of legislative authority to
regulate broadcast media on terms more cumbersome than print media, it should not be discounted that
Congress may enact amendments to the organic law of the NTC that would alter the legal milieu from which we
adjudicated today.
Still, the Court sees all bene t and no detriment in striking this blow in favor of free expression and of the
press. While the ability of the State to broadly regulate broadcast media is ultimately dictated by physics,
regulation with a light touch evokes a democracy mature enough to withstand competing viewpoints and tastes.
Perhaps unwittingly, the position advocated by petitioner curdles a most vital sector of the press — broadcast
media — within the heavy hand of the State. The argument is not warranted by law, and it betrays the constitutional
expectations on this Court to assert lines not drawn and connect the dots around throats that are free to speak. AICDSa
WHEREFORE, the instant petition is DENIED. No pronouncement as to costs.

SO ORDERED.
Quisumbing, Carpio-Morales, Velasco, Jr. and Peralta, JJ., * concur.
Footnotes
* Additional member as replacement of Justice Arturo D. Brion who is on official leave per Special Order No. 587.
1. Under Republic Act No. 3902.
2. See Rollo, p. 45.
3. See CONSTITUTION, Art. XII, Sec. 11, which provides in part: "The State shall encourage equity participation in public
utilities by the general public." Particular to mass media organizations, one may also refer to Section 11 (1), Article
XVI, Constitution, which provides in part: "The Congress shall regulate or prohibit monopolies in commercial mass
media when the public interest so requires. No combinations in restraint of trade or unfair competition therein shall be
allowed."
4. See rollo, pp. 73, 75; citing Section 9, R.A. No. 7477 and Section 3, R.A. No. 7582. Even as the above-cited provision is
found in both sections, Section 9 of Rep. Act No. 7477 is captioned "Democratization of Ownership;" while Section 3
of Rep. Act No. 7582 is captioned "Public Ownership". Nonetheless, the variance in caption has no bearing for this
Court, which acknowledges the sameness of both provisions. cSTHAC
5. See id. at 92, 96. In the case of CBS, it was likewise granted a Provisional Authority to install, operate and maintain a
Cable Television System in Aroroy, Masbate. See id. at 96.
6. Petitioner died on 14 April 2004 and is now legally represented by his daughter, Elsa. See id. at 207.
7. Id. at 91-94, docketed as Adm. Case No. 99-022.
8. Id. at 95-98, docketed as Adm. Case No. 99-023.
9. Id. at 91, 95. In the complaint against CBS, petitioner stated that he was the actual and beneficial owner of Twelve
percent (12%) of the shares of stock "of PBS", id. at 95. This appears to be a typographical error, petitioner intending
to say therein "of CBS". This conclusion is borne out by the fact that the present petition alleges petitioner's ownership
"of twelve (12%) percent of the shares of stock of [PBS] and twelve (12%) percent of the shares of CBS", id. at 12, and
also by the narration of facts of the Court of Appeals which states that "[p]etitioner owns twelve (12%) percent of the
shares of stock of [CBS] and twelve (12%) percent of the shares of stock of [PBS]", id. at 45. ITaCEc
10. Id. at 93, 97.

11. Id.
12. Id. at 100-106. Decision signed by Deputy Commissioners Aurelio M. Umali and Nestor Dacanay.
13. Id. at 103.
14. Id. at 104-105.
15. Id. at 107-113.
16. Id. at 53-70.
17. Id. at 44-52. Penned by Associate Justice Regalado Maambong, concurred in by Associate Justices Buenaventura
Guerrero and Andres Reyes, Jr.
18. See id. at 103. "We [at the NTC] are cognizant that the Commission has full jurisdiction to revoke or cancel a PA or
even a CPC for violation or infractions of the terms and conditions embodied therein."
19. "An Act Providing for the Regulation of Radio Stations and Radio Communications in the Philippine Islands, And For
Other Purposes." 27 Public Laws 294-297.
Mystifyingly, the official website of the National Telecommunications Commission has published therein a "Republic
Act No. 3846", purportedly enacted on 10 August 1963, which has exactly the same title as Act No. 3846 of 1931.
(http://portal.ntc.gov.ph/wps/portal/!ut/p/_s.7_0_A/7_0_LU/.cmd/ad/.ps/X/.c/6_0_FM/.ce/7_0_95U/.p/5_0_7DI/.d/0?
PC_7_0_95U_F=law3846.html#7_0_95U, last visited 24 November 2008) A similar "Republic Act No. 3846" dated to
1963 is also published in the popular but unofficial online compilation prepared by the Chan Robles Virtual Law
Library (http://www.chanrobles.com/republicacts/republicactno3846.html, last visited 24 November 2008). However,
as confirmed by the Supreme Court Library, "Republic Act No. 3846" is in fact a general appropriations law and not a
statute governing the regulation of radio stations in the Philippines.IEAacT
20. See Act No. 3846 (1931), Sec. 1, as amended by Commonwealth Act No. 365, Commonwealth Act No. 571 and
Republic Act No. 584 (1950).
21. See Act No. 3846 (1931), Sec. 2 as amended by Republic Act No. 584 (1950). The Cabinet Secretary originally
designated in Sections 2 and 3 of the law was the Secretary of Commerce and Communications.
22. See Act No. 3846 (1931), as amended by Republic Act No. 584 (1950).
23. With the passage of the Communications Act of 1934.
24. It has been entrenched in American constitutional law that the Internet enjoys the same degree of constitutional
protection as print media, in contrast to the lower level of First Amendment protection guaranteed to broadcast
media. See Reno v. ACLU, 521 U.S. 844 (1997).
25. "Although broadcasting is clearly a medium affected by a First Amendment interest, United States v. Paramount
Pictures, Inc., 334 U.S. 131, 166 (1948), differences in the characteristics of new media justify differences in the First
Amendment standards applied to them. Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 503 (1952). For example, the
ability of new technology to produce sounds more raucous than those of the human voice justifies restrictions on the
sound level, and on the hours and places of use, of sound trucks so long as the restrictions are reasonable and
applied without discrimination. Kovacs v. Cooper, 336 U.S. 77 (1949). Just as the Government may limit the use of
sound-amplifying equipment potentially so noisy that it drowns out civilized private speech, so may the Government
limit the use of broadcast equipment. The right of free speech of a broadcaster, the user of a sound truck, or any other
individual does not embrace a right to snuff out the free speech of others. Associated Press v. United States, 326 U.S.
1, 20 (1945).
When two people converse face to face, both should not speak at once if either is to be clearly understood. But the
range of the human voice is so limited that there could be meaningful communications if half the people in the United
States were talking and the other half listening. Just as clearly, half the people might publish and the other half read.
But the reach of radio signals is [395 U.S. 367, 388] incomparably greater than the range of the human voice and the
problem of interference is a massive reality. The lack of know-how and equipment may keep many from the air, but
only a tiny fraction of those with resources and intelligence can hope to communicate by radio at the same time if
intelligible communication is to be had, even if the entire radio spectrum is utilized in the present state of
commercially acceptable technology." Red Lion v. FCC, infra, at 386-387. cACDaH
26. 395 U.S. 367 (1969).
27. Id. at 396-398.

28. Id. at 388-389.
29. Id. at 390-391.
30. 352 Phil. 153 (1998).
31. Id. at 182-183.

32. See, e.g., Eastern Broadcasting Corp. (DYRE) v. Hon. Dans, Jr., 222 Phil. 151 (1985).
33. See Section 13 (b), C.A. No. 146, as amended.

34. See Section 14, C.A. No. 146, as amended. This point was made especially clear in Radio Communications of the
Philippines, Inc. v. Santiago, G.R. Nos. L-29236 & 29247, 21 August 1974, 58 SCRA 493, 495-497; and Radio
Communications of the Philippines, v. National Telecommunications Commission, G.R. No. 93237, 6 November 1992,
215 SCRA 455.
35. 445 Phil. 621 (2003).
36. See id. at 637.
37. Id.
38. Id. at 637-640.
39. Id. at 644.

40. Id. at 645.
41. The provision reads: DTEHIA
SEC. 11. No franchise, certificate, or any other form of authorization for the operation of a public utility shall be
granted except to citizens of the Philippines or corporations or associations organized under the laws of the
Philippines at least sixty per centum of whose capital is owned by such citizens, nor shall such franchise, certificate,
or authorization be exclusive in character or for a longer period than fifty years. Neither shall any such franchise or
right be granted except under the condition that it shall be subject to amendment, alteration, or repeal by the Congress
when the common good so requires. The State shall encourage equity participation in public utilities by the general
public. The participation of foreign investors in the governing body of any public utility enterprise shall be limited to
their proportionate share in its capital, and all the executive and managing officers of such corporation or association
must be citizens of the Philippines.
42. Earlier known as the Secretary of Commerce and Communications.
43. Act No. 3846 (1931), Sec. 2.
44. Act No. 3846 (1931), Sec. 3. That function later devolved to the Director, Telecommunication Control Bureau of the
Department of Public Works and Communications.
45. Act No. 3846 (1931), Sec. 3 (k).
46. Act No. 3846 (1931), Sec. 3 (m).
47. Executive Order No. 546 (1979), Sec. 15 (a).
48. Act No. 3846 (1931), Sec. 3; See also Bolinao Electronics Corp., et al. v. Valencia and San Andres, 120 Phil. 469
(1964).
49. See Presidential Decree No. 1 (1972).
50. See Integrated Reorganization Plan, Part X, Chapter I, Article II.
51. See Integrated Reorganization Plan, Part X, Chapter I, Article III, Sec. 1.
52. "5. The Board of Communications shall be composed of a full-time Chairman who shall be of unquestioned integrity
and recognized prominence in previous public and/or private employment; two full-time members who shall be
competent on all aspects of communications and preferably one of whom shall be a lawyer and the other an
economist; and the Director of the Radio Control Office and a senior representative of the Institute of Mass
Communication of the University of the Philippines, as ex-officio members. cACHSE
The functions of this Board are as follows:
a. Issue Certificates of Public Convenience for the operation of communications utilities and services, radio
communications systems, wire or wireless telephone or telegraph systems, radio and television broadcasting systems
and other similar public utilities;
b. Establish, prescribe and regulate routes, zones and/or areas of operation of particular operator of public service
communications; and determine, fix and/or prescribe charges and/or rates pertinent to the operation of such public
utility facilities and services except in cases where charges or rates are established by international bodies or
associations of which the Philippines is a participating member or by bodies recognized by the Philippine
Government as the proper arbiter of such charges or rates;
c. Grant permits for the use of radio frequencies for wireless telephone and telegraph systems, radio communications
systems and radio and television broadcasting systems including amateur radio stations;
d. Suballocate series of frequencies of bands allocated by the International Telecommunications Union to the
specific services;
e. Establish, fix and/or prescribe rules, regulations, standards, specifications in all cases related to the Issued
Certificates of Public Convenience and administer and enforce the same through the Radio Control Office of the
Department;
f. Promulgate rules requiring any operator of any public communications utilities to equip, install and provide in such
utilities and in their stations such devices, equipment, facilities and operating procedures and techniques as may
promote or insure the highest degree of safety, protection, comfort and convenience to persons, and property in their
charge as well as the safety of persons and property within their areas of operation; SaETCI
g. Coordinate and cooperate with government agencies and entities concerned with any aspect involving
communications with a view to continually improve the communications service in the country;
h. Make such rules and regulations, as public interest may require, to encourage a larger and more effective use of
communications, radio and television broadcasting facilities, and to maintain competition in these activities
whenever the Board finds it reasonably feasible;

i. Promulgate from time to time, such rules and regulations, and prescribe such restrictions and conditions, not
inconsistent with law, as public convenience, interest or necessity may require; and
j. Exercise such other functions as may be prescribed by law."
53. See Section 14, E.O. No. 546 (1972).
54. Rollo, p. 32.

55. See note 34.
56. Id. at 460-461.
57. 468 U.S. 364 (1984).
58. Id. at 395.

59. See R.A. No. 7477 (1992), Sec. 3.
60. See R.A. Act No. 3902 (1964) in relation with R.A. No. 7582 (1992), Sec. 2.
61. See RULES OF COURT, Sec. 1.
62. Id.
63. See Section 2, Rule 66.
64. O. HERRERA, III Remedial Law (1999 ed.), at 295; citing Newman v. U.S., 238 U.S. 537, 545, 56 L.Ed. 513, and Moran,
Comments on the Rules of Court, Vol. 3, 1970 ed. SDHTEC
65. PLDT v. NTC, G.R. No. 88404, 18 October 1990, 190 SCRA 717, 730-731.
66. Id.
67. Kilosbayan v. Morato, 316 Phil. 652 (1995).
68. PLDT v. NTC, G.R. No. 88404, 18 October 1990, 190 SCRA 717.
69. Rollo, pp. 49-50.

SECOND DIVISION
[G.R. No. L-40295. July 31, 1978.]
ABRAHAM C. SISON , petitioner, vs. HON. EPI REY PANGRAMUYEN,

Commissioner of Civil Service; GERONIMO LIPUMANO, Mayor,
Olongapo City; ALFREDO D. OCAMPO, O cer-in-Charge, Civil
Service, Regional O ce No. 3, San Fernando, Pampanga; and
EUREKA F. MALIWANAG, Assistant City Assessor, Olongapo City ,
respondents.
Domingo & Domingo for petitioner.

G. J. de Llana for respondent City Mayor.
M. S. Gerong for respondent Maliwanag.
SYNOPSIS
Upon recommendation of the City Assessor, the City Mayor of Olongapo

appointed respondent Maliwanag as Assistant City Assessor. Petitioner contested the
appointment as illegal and violative of the next-in-rank rule. He claimed that at the time
of the appointment in dispute, he was Chief Assessor, exercising supervision over
Maliwanag who was Senior Deputy Assessor. The Regional Director and the Civil
Service Commissioner, respectively, attested and a rmed Maliwanag's appointment.
Petitioner's protest was dismissed by the Commissioner.
More than two years later his pretended right to hold the o ce in question arose,
petitioner instituted the instant certiorari, mandamus and quo warranto proceedings to
annul the actions of respondent o cials and asking that the Commissioner be
mandated to appoint petitioner as such Acting City Assessor and that private
respondent Maliwanag be declared as unlawfully usurping said position under a void
appointment.
In dismissing the petition, the Supreme Court Held that the City Assessor's
indorsement to the respondent mayor recommending dismissal of petitioner's protest
to the appointment of private respondent Maliwanag having been reviewed and
sustained by the Commissioner, the latter's action should be a rmed, he being
primarily charged with the administration of the Civil Service Law and rules and
regulations absent a showing of palpable error or grave abuse of discretion. Withal, as
petitioner brought the action more than one year after his alleged right to hold o ce
arose, any judicial remedy in his favor whether by quo warranto, certiorari or mandamus
is deemed closed.
SYLLABUS
1. CIVIL SERVICE; CERTIORARI; JUDGMENT OF COMMISSIONER OF CIVIL

SERVICE, AS ADMINISTRATOR OF CIVIL SERVICE LAW MAY NOT BE QUESTIONED,
ABSENT AN ERROR OR GRAVE ABUSE OF DISCRETION. — The Supreme Court is loathe
to substitute its own judgment for that of the Commissioner of Civil Service who is
primarily charged with the administration of the Civil Service Law and rules and
regulations, absent, as in this case, convincing showing of palpable error or grave abuse
of discretion. More so where petitioner rested his case mostly on the Organizational
Chart and the position description or CSC Form No. 122-D of respondent appointee,
prepared by petitioner himself, which did not carry the approval of the Mayor, as
Department Head, contrary to the requirement of Memorandum Circular No. 5, S. 1963
of the Commissioner of Civil Service touching on the basis for determining the
hierarchical relationships of positions, and, therefore, are not necessarily controlling.
2. ACTIONS; MANDAMUS; QUO WARRANTO; ONE-YEAR PRESCRIPTIVE
PERIOD APPLIES TO MANDAMUS. — The one-year period xed in Section 16 of Rule 66
as a condition precedent to the existence of cause of action for quo warranto applies
even if the petition is also for certiorari and mandamus, where the allegations
supporting petitioner's cause or causes of action boil down to no more than the
removal of respondent from the position to which the latter has been appointed in
order to be replaced by petitioner, with a new appointment in petitioner's favor.
Necessarily, the ouster of respondent has to be based on a nulli cation of her
appointment. His ultimate remedy, therefore, is quo warranto. Besides, even if it could
be also viewed as mandamus, it is already settled that this latter remedy prescribes
also after one year.
3. ID.; ID.; RESORT TO ADMINISTRATIVE REMEDY DOES NOT ABATE PERIOD
FOR JUDICIAL ACTION. — It is of no avail to one who claims the right to hold a public
o ce allegedly usurped that during the intervening period of more than one year he
was seeking from the corresponding administrative authorities. The resort to such
administrative remedy does not abate the period for the judicial action.
DECISION
BARREDO , J : p
Petition denominated as for certiorari, mandamus and quo warranto and (1)
seeking the annulment of the actions of respondents Regional Director and
Commissioner of Civil Service in respectively attesting and a rming such attestation
of private respondent Eureka F. Maliwanag's appointment as Assistant City Assessor
of Olongapo City, extended by the respondent Mayor of said city on November 23,
1973, and (2) assailing the validity of said respondent Commissioner's decision of May
3, 1974 dismissing petitioner's protest and his resolution dated June 24, 1974 denying
reconsideration of said decision, and (3) further asking that respondent Commissioner
be mandated to appoint petitioner as such Assistant City Assessor and that private
respondent Maliwanag be declared as unlawfully usurping said position under a void
and illegal appointment.
In sum, petitioner would want the Court to hold that since at the time of the
appointment in dispute, he was Chief Deputy Assessor exercising, according to his
allegation, immediate administrative control and supervision over respondent
Maliwanag, who was Senior Deputy Assessor, and inasmuch as he has superior
educational and appropriate civil service eligibilities to those of said respondent, the
appointment aforementioned extended to the latter by respondent City Mayor is illegal
and contrary to law being violative of the rule of next-in-rank. Petitioner maintains that
upon the promotion of the Assistant City Assessor to the position of City Assessor, he,
petitioner, instead of respondent Maliwanag should have been appointed thereto.
We have carefully considered petitioner's contentions in his petition as well as his
reply to the answers of the respondents and, at best, We nd the issues raised by him
to be rather controversial, with the result that it is di cult for Us to categorize
respondent public o cial's impugned actuations as tainted with grave abuse of
discretion. Maliwanag's appointment was recommended by the City Assessor and his
reasons therefor, stated in said o cial's indorsement to the Mayor recommending
dismissal of petitioner's protest thereto and quoted in the record, are substantial and
well taken, as, in fact, they have been reviewed by respondent Commissioner and found
to be sustainable, as he did sustain them. We are loathe to substitute Our own
judgment for that of the Commissioner of Civil Service who is primarily charged with
the administration of the Civil Service Law and rules and regulations, absent, as in this
case, convincing showing of palpable error or grave abuse of discretion. After all, as We
see it, petitioner rests his case mostly on the Organization Chart and the position
description or CSC Form No. 122-D of respondent Maliwanag, prepared by petitioner
himself, which do not carry the approval of the Mayor, as Department Head, contrary to
requirement of Memorandum Circular No. 5, S. 1963 of the Commission of Civil Service
touching on the basis for determining the hierarchical relationships of positions, and,
therefore, are not necessarily controlling.
Withal, the most fatal drawback of petitioner's cause is that he came to the
courts out of time. As already stated, the appointment in controversy was made on
November 23, 1973 and respondent Maliwanag assumed o ce on the strength
thereof, albeit she claims she has not been paid her salary. On the other hand, the
petition herein was led only on March 13, 1975, clearly more than one year after the
pretended right of petitioner to hold the o ce in question arose. This single
circumstance has closed the door for any judicial remedy in his favor. llcd
Petitioner contends in regard to this point that Section 16 of Rule 66 invoked by

private respondent refers to actions of quo warranto and since his petition is also for
certiorari and mandamus, said rule is inapplicable. Such contention is not correct. As
earlier noted in this decision, the allegations supporting petitioner's cause or causes of
action boil down to no more than the removal of respondent Maliwanag from the
position to which she has been appointed in order to be replaced by him, with a new
appointment in his favor. Necessarily, the ouster of Maliwanag by quo warranto has to
be based on a nulli cation of her appointment, which petitioner seeks, albeit
unnecessarily, by certiorari. His ultimate remedy, therefore, is quo warranto. Besides,
even if it could be also viewed as mandamus, it is already settled that this latter remedy
prescribes also after one year. (Cornejo vs. Sec. of Justice, L-32818, June 28, 1974, 57
SCRA 663.) And it is of no avail to petitioner that during the intervening period of more
than one year, he was seeking relief from the corresponding administrative authorities.
The resort to such administrative remedy does not abate the period for the judicial
action. (Torres vs. Quintos, 88 Phil. 436; Galano vs. Roxas, G. R. L-31241, Sept. 12,
1975, 67 SCRA 8.)
WHEREFORE, the petition is dismissed and the restraining order heretofore
issued is hereby lifted effective immediately. No costs.
Fernando (Chairman), Antonio, Concepcion Jr., and Santos, JJ., concur.
Separate Opinions
AQUINO, J., dissenting:
I dissent. Petitioner Abraham C. Sison, as the incumbent chief deputy assessor,

is the quali ed and competent next-in-rank employee who should be promoted to the
contested position of assistant city assessor of Olongapo City, as contemplated in
section 23 of the Civil Service Law. He is quali ed for that position because he is a
provincial assessor eligible and he holds a bachelor's degree in commerce. Those
qualifications are required for the position of assistant city assessor.
Respondent Eureka F. Maliwanag, who was appointed by the mayor to that
position, is not quali ed because she is not a provincial assessor eligible and she is not
a holder of a bachelor's degree. Her appointment to the contested position is in
violation of section 23. Hence, the Commissioner of Civil Service revoked that
appointment in his decision of May 3, 1974. However, upon motion for reconsideration,
the Commissioner approved that appointment in his decision of June 24, 1974.
It is incontestable that Sison is senior to Mrs. Maliwanag. He was appointed
senior deputy assessor of Olongapo City effective September 25, 1967. Then, he was
promoted to the position of chief deputy assessor of that city on September 1, 1969.
On that date, Mrs. Maliwanag was appointed to the position of senior deputy assessor,
the position vacated by Sison (pp. 62-63, Rollo).
Thus, Sison (not Mrs. Maliwanag) was next in line for the position of assistant
city assessor when that position became vacant on November 23, 1973. There is no
reason why Mrs. Maliwanag should jump over Sison. The mayor should have apprised
Sison as to why he was being bypassed and why Mrs. Maliwanag was being appointed
to that position. That legal requirement was not observed.
Although Sison's petition in this Court is for certiorari, mandamus and quo
warranto, he has no cause of action for quo warranto because Mrs. Maliwanag holds an
appointment to the contested position of assistant city assessor. She cannot be
regarded as a usurper of that position Sison's petition should be treated as one for
certiorari and mandamus only. Those special civil actions are adequate for assailing the
decisions of the Commissioner of Civil Service. The quo warranto aspect of Sison's
petition should be disregarded. cdphil
Rule 65 of the Rules of Court does not x any period for the ling of a petition for
certiorari and mandamus. The one-year period within which the petition for quo
warranto should be led does not apply to Sison. His petition was delayed because, as
he explained, he is a poor man who cannot afford to embark on an expensive and
protracted litigation.
I vote for the setting aside of the questioned decisions of the Commissioner of
Civil Service. The mayor should be directed to appoint Sison to the contested position.
Mrs. Maliwanag should be promoted to the position of chief of deputy assessor to be
vacated by Sison.

FIRST DIVISION
[G.R. No. L-43203. July 29, 1977.]
JOSE C. CRISTOBAL , plaintiff-appellant, vs. ALEJANDRO MELCHOR

and FEDERICO ARCALA , defendants-appellees.
DECISION
MUÑOZ PALMA , J : p
Jose C. Cristobal appeals from a decision dated May 18, 1972 of the Court of
First Instance of Manila in Civil Case No. 83962 which dismissed this complaint for
declaratory relief and reinstatement in the government serviced. 1
The incidents which led to this suit are set forth in the decision of the court a quo,
thus:
"The plaintiff was formerly employed as a private secretary in the
President's Private O ce, Malacañang, Manila, having been appointed to that
position on July 1, 1961 with a salary of P4,188.00 per annum. He is a third grade
civil service eligible. On or about the second week of January, 1962, the then
Executive Secretary Amelito R. Mutuc, by means of a letter dated January 1, 1962,
informed the plaintiff that his services as private secretary in the President's
Private O ce were 'terminated effective today'. A similar letter was addressed by
Secretary Mutuc to some other employees in the O ce of the President. The
dismissed employees appealed to the President by means of letters dated
January 3, 1962 and January 26, 1962 for a reconsideration of their separation
from the service. In a letter dated February 27, 1962, their request for
reconsideration was denied by Secretary Mutuc, acting 'by authority of the
President'.
"On March 24, 1962, ve of the employees who were separated (not
including the herein plaintiff) led a civil action before the Court of First Instance
of Manila against Secretary Mutuc and the cash-disbursing o cer of the O ce
of the President praying for reinstatement and the payment of their salaries
effective as of January 1, 1962, entitled 'Raul R. Ingles, et als. vs. Amelito R.
Mutuc, et als.' Civil Case No. 49965. From a judgment dismissing their complaint,
the said employees appealed to the Supreme Court which rendered a decision
promulgated on November 29, 1968 reversing the dismissal of their complaint
and declaring their removal from o ce as illegal and contrary to law, and
ordering their reinstatement and the payment of their salaries from January 1,
1962 up to the date of their actual reinstatement (G.R. No. L-20390).
"Sometime in May, 1962, when the civil action filed by Raul R. Ingles, et als.
was still pending in the Court of First Instance of Manila, the dismissed
employees who led said action were recalled to their positions in the O ce of
the President, without prejudice to the continuation of their civil action. With
respect to the other employees who were not reinstated, efforts were exerted by
Secretary Mutuc to look for placements outside of Malacañang so that they may
be reemployed. The herein plaintiff was one of those who had not been fortunate
enough to be reappointed to any positions as befits his qualifications.
"He waited for Secretary Mutuc to make good his assurance that he would
be recalled to the service, until Secretary Mutuc was replaced by other executive
secretaries who likewise assured the plaintiff of assistance to be reemployed at
'the opportune time'.
"After the decision of the Supreme Court in G.R. No. L-20390 was
promulgated on November 29, 1968, the plaintiff addressed a letter to the O ce
of the President dated January 19, 1969, requesting reinstatement to his former
position and the payment of salary from January 1, 1962 up to the time of actual
reinstatement, supposedly in accordance with the decision of the Supreme Court
in the aforementioned case. This request was denied repeatedly by the O ce of
the President in successive letters addressed to the plaintiff dated September 1,
1969, January 19, 1970, April 23, 1910, May 23, 1970, and May 19, 1971, the last
of which declared the matter 'definitely closed'." (pp. 151-153, CFI Record).
Having received the letter of May 19, 1971, from the O ce of the President, Jose
Cristobal led on August 10, 1971, with the Court of First Instance of Manila a
complaint naming then Executive Secretary Alejandro Melchor and Federico Arcala,
cash disbursing o cer, O ce of the President of the Philippines, as defendants, and
praying for the following: LLjur
"1. Declaring plaintiff's dismissal as illegal and contrary to law;
"2. Ordering defendant Executive Secretary Alejandro Melchor to certify

the name of plaintiff in the payroll of the O ce of the President of the
Philippines, to be retroactive as of January 1, 1962, the effective date that the
plaintiff was illegally dismissed from the service;
"3. Ordering defendant Federico Arcala to pay all the emoluments

and/or salary to which the plaintiff is entitled effective as of January 1, 1962, the
date of his illegal termination from the service; and
"4. Ordering the defendants to allow plaintiff to continue with the

performance of his duties in the Secretary O ce Staff, O ce of the President of
the Philippines.
"Plaintiff prays for such other relief or remedy as this Honorable Court may
deem just and equitable under the premises." (pp. 1-3, ibid.)
Answering the complaint, the defendants represented by the O ce of the

Solicitor General alleged that plaintiff Jose Cristobal had no cause of action as he is
deemed to have abandoned his o ce for failure to institute the proper proceedings to
assert his right within one year from the date of separation pursuant to Sec. 16, Rule 66
of the Rules of Court, he having come to court only after the lapse of more than nine
years, thereby in effect acquiescing to his separation, and therefore he is not entitled to
any salary from termination of his employment. (pp. 38-40, ibid.)
On October 16, 1971, an amended complaint was submitted to the trial court to
include as additional defendant Leticia B. Nonato who was allegedly appointed to the
position of Jose Cristobal and Simplicio Nonato, husband of Leticia B. Nonato, and to
invoke the additional relief for reinstatement to the position occupied by defendant
Leticia B. Nonato. (pp. 55-58, ibid.)
The Nonatos were served with summons but did not le an answer to the
complaint, hence, on motion of the plaintiff Cristobal, they were declared in default in an
order dated January 15, 1912. (p. 94, ibid.)
A pre-trial was held after which parties submitted "a partial stipulation of facts"
dated February 26, 1976. (pp. 102-104, ibid.)
Trial on the merits was held during which plaintiff Cristobal submitted his
documentary evidence marked respectively as Exhibits "A" to "P" inclusive all of which
were admitted by the trial court. Counsel for the defendants then manifested that no
evidence was being presented for the government. LLpr
On May 18, 1972, as already adverted to above, the trial court then presided by
the Honorable Conrado Vasquez, now Justice of the Court of Appeals, rendered its
decision dismissing the complaint reasoning in the following manner:
"Section 16 of Rule 66 of the Rules of Court expressly provides that an
action against a public o ce or employee may not be led for the plaintiff's
ouster from o ce unless the same is commenced within one year after the cause
of the ouster, or the right of the plaintiff to hold such o ce or position arose. This
period of one year is a condition precedent for the existence of the cause of
action for quo warranto (Bumanlag vs. Fernandez, G.R. No. L-11482, November
29, 1960). The rationale of this doctrine is that the Government must be
immediately informed or advised if any person claims to be entitled to an o ce
or position in the civil service, as against another actually holding it, so that the
Government may not be faced with the predicament of having to pay two salaries,
one for the person actually holding the o ce although illegally, and another for
one not actually rendering service although entitled to do so (Madrid vs. Auditor
General, G.R. No. L-12523, May 31, 1960). The fact that the petitioner sought to
pursue administrative remedies to secure his reinstatement does not excuse the
failure to file the action within the one year period.
'The pendency of administrative remedies does not operate to

suspend the period of one year within which a petition for quo warranto
should be led. While it may be desirable that administrative remedies be
rst resorted to, no one is compelled or bound to do so, and as said
remedies neither are pre-requisite to nor bar the institution of quo warranto
proceedings, they should not be allowed to suspend the period of one year.
Public interest requires that the right to a public o ce should be
determined as speedily as practicable' (3 Moran, 1963 Ed., p. 207, citing
Torres vs. Quintos, G.R. No. L-3304, April 5, 1951)." (pp. 154-155, ibid.).
We are now confronted with the following assignment of errors in appellant

Cristobal's brief, to wit:
"I
"THE LOWER COURT ERRED IN DECLARING PLAINTIFF-APPELLANT

GUILTY OF ABANDONMENT OF ACTION FOR MORE THAN ONE YEAR.
"II
"THE LOWER COURT ERRED IN NOT DECLARING THAT THIS CASE BEING
BASED ON ACT OF THE GOVERNMENT THAT HAS BEEN DECLARED BY THE
SUPREME COURT AS ILLEGAL AND CONTRARY TO LAW SHOULD BE GOVERNED
BY THE SUBSTANTIVE LAW ON PRESCRIPTION OF ACTION." (p. 26, rollo)
The primary question to be resolved in this appeal is whether or not appellant

Cristobal his right to seek judicial relief for not having led his complaint within the one-
year period provided for in Section 16, Rule 66 of the Rules of Court. In short, is the
principle of laches or non-compliance with the "Statute of Limitations" applicable
against appellant?
The Government holds fast to Section 16, Rule 66 of the Rules of Court and so
did the court a quo in upholding the dismissal of appellant's complaint which according
to both is essentially a quo warranto proceeding.
We agree with defendants-appellees that in this jurisdiction the consistent
doctrine followed by this Court is that in actions of quo warranto involving right to an
o ce, the action must be instituted within the period of one year from the time the
cause of action arose. 2
Verily, this Court has stated in Unabia vs. City Mayor, et al., 99 Phil. 253, 257:
". . . This has been the law in the Island since 1901, the period having been
originally xed in section 216 of the Code of Civil procedure (Act No. 190). We
nd this provision to be an expression of policy on the part of the State that
persons claiming a right to an o ce of which they are illegally dispossessed
should immediately take steps to recover said o ce and that if they do not do so
within a period of one year, they shall be considered as having lost their right
thereto by abandonment. There are weighty reasons of public policy and
convenience that demand the adoption of a similar period for persons claiming
rights to positions in the civil service. There must be stability in the service so that
public business may not be unduly retarded; delays in the statement of the right
to positions in the service must be discouraged . . .
xxx xxx xxx
"Further, the Government must be immediately informed or advised if any
person claims to be entitled to an o ce or a position in the civil service as
against another actually holding it, so that the Government may not be faced with
the predicament of having to pay two salaries, one, for the person actually
holding the o ce, although illegally, and another, for one not actually rendering
service although entitled to do so. We hold that in view of the policy of the State
contained in the law xing the period of one year within which actions for quo
warranto may be instituted, any person claiming right to a position in the civil
service should also be required to file his petition for reinstatement with the period
of one year, otherwise he is thereby considered as having abandoned his office."
In effect, it is the doctrine of laches which is invoked to defeat Jose Cristobal's

suit, for not only did Cristobal fail to le his complaint within one year from the date of
separation but, it is claimed, he allowed almost nine years to pass before coming to
court by reason of which he is deemed to have acquiesced to his removal.
I n Tijam vs. Sibonghanoy, this Court stated that in a general sense, laches is
failure or neglect, for an unreasonable and unexplained length of time, to do that which,
by exercising due diligence, could or should have been done earlier; it is negligence or
omission to assert a right within a reasonable time, warranting a presumption that the
party entitled to assert it either has abandoned it or declined to assert it. 3
However, as will be indicated below, there are certain exceptional circumstances
attending which take this case out of the rule enunciated above and lead Us to grant
relief to appellant. Thus —
1. There was no acquiescence to or inaction on the part of Jose Cristobal
amounting to abandonment of his right to reinstatement in office.
We lay stress on the ndings of the trial court based on the unrebutted evidence
of plaintiff Cristobal that upon receipt of the letter or January 1, 1962, advising him of
his separation from the service, Cristobal, with the other dismissed employees, sought
reconsideration in a letter dated January 3, 1962, calling inter alia the attention of then
Executive Secretary Amelito Mutuc that he (Cristobal) was a civil eligible employee with
eight years of service in the government and consequently entitled to security of tenure
under the Constitution. This was followed by another letter of January 26, 1962. 4
Reconsideration having been denied, a complaint was led on March 24, 1962,
with the Court of First Instance of Manila entitled "Raul R. Ingles, et al. vs. Amelito R.
Mutuc, et al.", (Civil Case 49965) which prayed for reinstatement and payment of
salaries as of January 1, 1962. The trial court dismissed this complaint but upon appeal
to the Supreme Court the judgment was reversed in a Decision promulgated on
November 29, 1968, in G.R. L-20390, the Court holding that the removal of the plaintiff-
employees was illegal and contrary to law and that they were entitled to be reinstated
with payment of their salaries from January 1, 1962 up to the date of their actual
reinstatement. 5
Cristobal was not one of the plaintiffs in the civil case, it is true, but his non-
participation is not fatal to his cause of action. During the pendency of the civil case
Cristobal continued to press his request for reinstatement together with the other
employees who had led the complaint and was in fact promised reinstatement as will
be shown more in detail later. LLjur
More importantly, Cristobal could be expected — without necessarily spending

time and money by going to court — to relie upon the outcome of the case led by his
co-employees to protect his interests considering the similarity of his situation to that
of the plaintiffs therein and the identi cal relief being sought. On this point, We nd a
statement of Justice Louis Brandeis of the United States Supreme Court in Southern
Pacific vs. Bogert, relevant and persuasive, and We quote:
"The essence of laches is not merely lapse of time. It is essential that there
be also acquiescence in the alleged wrong or lack of diligence in seeking a
remedy. Uere plaintiffs, or others representing them, protested . . . and ever since
they have . . . persisted in the diligent pursuit of a remedy . . . Where the cause of
action is of such a nature that a suit to enforce it would be brought on behalf, not
only of the plaintiff, but of all persons similarly situated, it is not essential that
each such person should intervened in the suit brought in order that he be deemed
thereafter free from the laches which bars those who sleep on their rights." (250
U.S. 483, 39 S. Ct. 536, 63 L. Ed. 1099, 1106-1107; Italics supplied. See also
Overfield vs. Pennroad Corporation, et al., 42 Fed. Supp. 586, 613).
2. It was an act of the government through its responsible o cials more

particularly then Executive Secretary Amelito Mutuc and his successors which
contributed to the alleged delay in the ling of Cristobal's present complaint for
reinstatement.
The evidence of Cristobal establish the following: After the Ingles suit was filed in
court, the dismissed employees, Cristobal included, continued to seek reconsideration
of their dismissal. It was then that Executive Secretary Mutuc assured the employees
that without prejudice to the continuation of the civil action, he would work for their
reinstatement. Accordingly, some of the dismissed employees were recalled to their
respective positions in the O ce of the President among whom were the plaintiffs in
the civil case and several others who were not parties therein. 6 Secretary Mutuc even
tried to place the others outside of the Malacañang O ce. An a davit of Emiliano
Punzal, retired Presidential Records O cer, attests to the fact that Jose C. Cristobal
"was among those in the list of separated employees ordered for placement to a
position commensurate to his quali cation and experience." 7 In the meantime,
however, Secretary Mutuc was replaced by other Executive Secretaries to whom
Cristobal over and over again presented his request for reinstatement and who gave
the same assurance that Cristobal would be recalled and re-employed at "the
opportune time". 8
It was this continued promise of the government o cials concerned which led
Cristobal to bide his time and wait for the O ce of the President to comply with its
commitment. Furthermore, he had behind him the decision of the Supreme Court in
Ingles vs. Mutuc which he believed should be applied in his favor. But when Cristobal, in
answer to his various letters, received the letter of May 19, 1971 from the O ce of the
President denying his reinstatement and declaring the matter "de nitely closed"
because of his failure to le an action in court within one year from his separation, 9 it
was only then that he saw the necessity of seeking redress from the courts.
Surely, it would now be the height of inequity and cutting a deep wound in Our
sense of justice, if after Cristobal relied and reposed his faith and trust on the word and
promises of the former Executive Secretaries who dealt with him and who preceded the
herein respondent Executive Secretary Melchor, We were to hold that he lost his right to
seek relief because of lapse of time.Cdpr
The doctrine of laches is an equitable principle applied to promote but never to

defeat justice. 1 0 Thus, where laches is invoked against a plaintiff by reason of the
latter's failure to come to court within the statutory period provided in the law, the
doctrine of laches will not be taken against him where the defendant is shown to have
promised from time to time to grant the relief sought for. 1 1 Again, We have
jurisprudence that where a defendant or those claiming under him recognized or
directly or impliedly acknowledged existence of the right asserted by a plaintiff, such
recognition may be invoked as a valid excuse for a plaintiff's delay in seeking to enforce
such right. 1 2 In brief, it is indeed the better rule that courts, under the principle of
equity, will not be guided or bound strictly by the statute of limitations or the doctrine
of laches when to do so, manifest wrong and injustice would result. 1 3
3. The dismissal of appellant Cristobal was contrary to law on the strength of
this Court's Decision in Ingles vs. Mutuc.
In Ingles the defendants-appellees maintained before this Court that the principal
issue in the case was whether or not the plaintiffs-employees were occupying positions
primarily con dential in nature and therefore subject to removal at the pleasure of the
appointing power, and that this issue was to be resolved in the a rmative. The Court
speaking through then Justice, later Chief Justice, Roberto Concepcion, held inter alia
that one holding in the government a primarily con dential position is "in the Civil
Service" and that "o cers or employees in the unclassi ed" as well as "those in the
classi ed service" are protected by the provision in the organic law that "no o cer or
employee in the Civil Service shall be removed or suspended except for cause as
provided by law" (Section 4, Article XII, 1935 Constitution); that while the incumbent of
a primarily con dential position holds o ce at the pleasure only of the appointing
power and such pleasure turns into displeasure, the incumbent is not "removed" or
"dismissed" but that his term merely "expires"; that there was no evidence to indicate
that the respective positions of the dismissed plaintiffs were "primarily con dential" in
nature and on the contrary the compensation attached and the designation given
thereto suggest the purely or at least mainly clerical nature of their work; and
consequently, considering that the plaintiffs were admittedly civil service eligibles with
several years of service in the Government, their removal from o ce was "illegal and
contrary to law". 1 4
The Court's Decision in Ingles vs. Mutuc constitutes the law of the case now
before Us.
Appellant herein, lose Cristobal, is a civil service eligible with eight (8) years of
service in the government. He was holding "Item 9" — "Private Secretary I" — in the
Budget for the "President's Private O ce" with annual compensation of P4,188.00. No
evidence was adduced by the government to show that Cristobal's position was
"primarily confidential". 1 5 On the contrary as stated by this Court in Ingles vs. Mutuc the
compensation attached to this item and the other items except for one and the
designation of the position indicate the purely clerical nature of the functions of the
employees dismissed from the service. In fact, none of the letters sent to the herein
appellant from the O ce of the President ever indicated that he was holding his
position at the pleasure of the appointing power or that his services were terminated
because his term of o ce had "expired". The only reason given — and this appears in
the letter of September 1, 1969 from the O ce of the President — was that he failed to
institute the proper proceeding to assert his right, if any, to the position within the
period of one year from the date of termination and under settled jurisprudence he is
deemed to have abandoned his right to said office or acquiesced in his removal. 1 6
To summarize, with the circumstances thus surrounding this particular case, viz:
(a) Jose Cristobal consistently pressed for a reconsideration of his separation from the
service; (b) he was given assurance that he would be recalled at the opportune time;
and (c) that the sudden termination of his employment without cause after eight years
of service in the government is contrary to law following the ruling in Ingles vs. Mutuc
which inures to the bene t of Cristobal who is similarly situated as the plaintiffs in said
case and who merely desisted from joining the suit because of the assurance given him
that he would be recalled to the service — with all these factors, We repeat, there is
justification for not applying existing jurisprudence to his case.
This Court, applying the principle of equity, need not be bound to a rigid
application of the law, but rather its action should conform to the conditions or
exigencies to a given problem or situation in order to grant a relief that will serve the
ends of justice.
To paraphrase then Chief Justice John Edwin Marshall of the United States
Supreme Court, let us to complete justice and not do justice by halves. 1 7 Just as in
Ingles vs. Mutuc this Court gave justice to plaintiffs, so shall We do justice to Jose
Cristobal.
In granting relief to the herein appellant on the matter of back salaries We note,
however, that there is no proof to show that during all these years from January 1,
1962, to the present, appellant at no time worked or was employed at some other
o ce. In fairness to the Government We cannot ignore the probability of Cristobal's
having sought employment elsewhere during that period to support himself and his
family.
Applying by analogy the rulings of this Court in the matter of xing backwages to
employees who were victims of unfair labor practices of their employers so as to
obviate the necessity of a hearing on the point and avoid further delay, and considering
the lapse of almost nine years before appellant led this suit, We resolve, to grant back
salaries at the rate last received by him only for a period of ve (5) years without
qualification and
deduction. 1 8
IN VIEW OF THE ABOVE CONSIDERATIONS, the decision of the court a quo is set
aside. Defendants-appellees or the Public Officials concerned are directed: prcd
1. To reinstate Jose Cristobal, either in the O ce of the President or in some

other government o ce, to any position for which he is quali ed by reason of his civil
service eligibility, subject to present requirements of age and physical fitness; and
2. To pay appellant Cristobal back salaries for a period of FIVE YEARS at the
rate of Four Thousand, One Hundred Eighty-eight Pesos (P4,188.00) per annum without
qualification and deduction.
So Ordered.
Teehankee (Chairman), Martin, Fernandez and Guerrero, JJ., concur.
Makasiar, J., reserves his vote.
Footnotes
1. This appeal originally was with the Court of Appeals, but in a resolution of February 2,
1976, it was certified to this Tribunal as it involved purely a question of law. On March
12, 1976, the appeal was accepted and the case declared submitted for decision on the
basis of the briefs filed with the Court of Appeals.
2. Villegas vs. De la Cruz, 1965, 15 SCRA 720 citing, Unabia v. City Mayor, et al., 99 Phil.
253, 257; Pinullar v. President of the Senate, L-11667, June 30, 1958; Roque v. President
of the Senate, L-10949, July 25, 1958; Madrid v. Auditor General, et al., L-13523, May 31,
1960; Mesias v. Jover, L-8543, November 22, 1955; Abella v. Rodriguez, L-10512,
November 29, 1957; Eranda v. Del Rosario, L-10552, April 28, 1958; Quingco v. Rodriguez,
L-12144, September 17, 1958; Tabora v. City of Cebu, L-11574, October 31, 1958; De la
Cerna v. Osmeña, L-12492, May 23, 1959; Argos v. Veloso, 83 Phil. 929; Tumulak v. Egay,
82 Phil. 828; Bumanglag v. Fernandez, et al., L-11482, November 29, 1960; Cui v. Cui, L-
18727, August 31, 1964. See also Villaluz vs. Zaldivar, 15 SCRA 710.
3. April 15, 1968, 23 SCRA 35.
4. pp. 108-109, CFI records.
5. 26 SCRA 171.
6. Exhibits L, M, N, O, pp. 181-185 CFI records.
7. Exhibit J, p. 197.
8. Exhibit P, p. 186, ibid.
9. pp. 14-18, ibid.
10. Bunch, et al. vs. United States, et al., 1918, 252 Fed. 673, 678.
11. Backus vs. Backus, 1919, 175 N W. 400, 207 Mich. 690. This is an action filed by one
against his brother to recover corporate stocks bought by the defendant with plaintiff's
money which was filed after five years from the time his cause of action arose. The
defense of laches was not upheld by the Supreme Court of Michigan, it appearing that
defendant promised from time to time to transfer the stocks to plaintiff.
12. Browning vs. Browning, et al., 100 S.E. 860, 85 W. Va. 46, (1919).
13. Fogg vs. St. Louis, H & K. R. Co. (C.C.) 17 Fed. 871, American Digest, 1658 to 1896,
Century Edition, Vol. 19, p. 462.
14. Supra, pp. 177-178.
15. p, 3, CFI records. See also Ingles vs. Mutuc, supra p. 177, where the Court stated that
except for "item 2" (one private secretary to the President — P9,000.00) there is nothing in
the other items in the budget for "the Office of the President" to indicate that the
respective positions are primarily confidential in nature.
16. p. 14, CFI records.
17. "The court of equity in all cases delights to do complete justice, and not by halves."
Marshall, C.J. — Knight vs. Knight, 3 P. Wms. 331, 334; Corbet vs. Johnson, 1 Brock, 77,
81 - both cited in Hefner, et al. vs. Northwestern Mutual Life Insurance Co., 123 U.S., 309,
313.
18. Mercury Drug Co., Inc., et al. vs. Court of Industrial Relations, et al., L-23351, April 30,
1974, per Makasiar, J.
Feati University Club vs. Feati University, L-31503, August 15, 1974, per Teehankee, J.
NASSCO vs. CIR, L-31852 and L-32724, June 28, 1914, per Teehankee, J.
Almira, et al. vs. B.F. Goodrich Phil., Inc., L-34974, July 25, 1974, per Fernando, J.
Insular Life Assurance Co., Ltd. Employees Association vs. Insular Life Assurance Co., Ltd.,
L-25291, January 30, 1971, per Castro, J.; March 10, 1977 (Resolution on motion for
reconsideration of respondents) per Castro, C.J.

Justice of the Peace Position During Abnormal Times

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EN BANC

[G.R. No. L-2456. January 25, 1949.]

NICOLAS B. POTOT , petitioner, vs . JUAN L. BAGANO, the SECRETARY

Ramon Deterte, Gaudioso P. Montecillo and Cecilio V. Gillamac for petitioner.

1. PUBLIC OFFICERS; JUSTICE OF THE PEACE; ABANDONMENT OF

This is a quo warranto proceeding instituted by a prewar justice of the peace

CD Technologies Asia, Inc. 2016 cdasiaonline.com

[G.R. No. L-1793. November 9, 1948.]

JOSE ABAYA , petitioner, vs . ALEJANDRINO A. ALVEAR , respondent.

Eulalio Resurreccion for petitioner.

1. PUBLIC OFFICERS; ABANDONMENT OF OFFICE BY ACCEPTANCE OF

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[G.R. No. L-2050. October 21, 1948.]

PABLO TEVES , plaintiff-appellant, vs . PERPETUO A. SINDIONG ,

Lamberto L. Macias for appellant.

1. PUBLIC OFFICERS; JUDICIAL OFFICERS, TENURE OF OFFICE; JUSTICE OF

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[G.R. No. 39224. October 24, 1933.]

SIMPLICIO SERAFIN , plaintiff-appellee, vs . JUSTO C. CRUZ , defendant-

Norberto Manikis and Rivera, Pascual & Alba, for appellant.

1. QUO WARRANTO; CHIEF OF POLICE. — The extraordinary legal remedy of

CD Technologies Asia, Inc. © 2018 cdasiaonline.com

[G.R. No. L-3081. October 14, 1949.]

ANTONIO LACSON , petitioner, vs . HONORIO ROMERO ET AL. ,

Cruz, Puno & Lacson for petitioner.

1. PUBLIC OFFICERS; PROVINCIAL FISCAL; APPOINTMENT OF; INVOLVES

I concur in the result.

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[G.R. No. 2122. September 13, 1905.]

PEDRO T. ACOSTA , plaintiff-appellant, vs . DAVID FLOR , defendant-

W.A. Kincaid, for appellant.

1. ACTION TO REMOVE A PUBLIC OFFICER. — A private person can not

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[G.R. No. L-28184. September 11, 1980.]

PURIFICACION V. GARCIA , petitioner-appellant, vs. ANGELO PEREZ ,

"On August 8, 1966, the Commissioner of Civil Service approved the

Should greater liberality be accorded to appellant by considering her action as

4. pp. 7-8, Ibid.

6. 5 Phil. 18, 22.

9. pp. 15-20, Appellant's Brief, p. 15, rollo.

11. pp. 18-19, Ibid.

13. 84 SCRA 364.

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[G.R. No. L-3059. August 2, 1949.]

VICENTE G. CRUZ, AMADO V. HERNANDEZ, JOSEFINA R. PHODACA,

Nicolas V. Villaruz for petitioners.

1. QUO WARRANTO; WHEN PETITIONERS DO NOT CLAIM TO BE ENTITLED

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[G.R. No. 168696. February 28, 2006.]

MA. LUTGARDA P. CALLEJA, JOAQUIN M. CALLEJA, JR., JADELSON

From the foregoing discussion and historical background relative to the

In the light of the above-noted observations and discussion, the Motion to

WHETHER A BRANCH OF THE REGIONAL TRIAL COURT WHICH HAS NO

WHETHER OR NOT ADMINISTRATIVE CIRCULAR NO. 8-01 DATED JANUARY 23,

. . . an order denying a motion to dismiss is merely interlocutory and

Therefore, actions of quo warranto against persons who usurp an o ce in a

SEC. 5. Venue. — All actions covered by these Rules shall be

Albay (Legaspi City) Branch 4, Judge Gregorio A. Consulta

xxx xxx xxx

The ratiocination of RTC-Br. 58 that Administrative Circular No. 08-2001

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[G.R. No. 174929. June 27, 2008.]