RULE 66: Quo Warranto

1. Abaya v. Alvear, 82 Phil. 103(1948) (DE GUZMAN)

Facts:
In 1920, petitioner ABAYA was initially appointed to the post of justice of the peace (JP)
of 4 towns in Ilocos Sur (Cervantes, Angaki, Concepcion and San Emilio) but his
jurisdiction was thereafter limited to only 2 municipalities then ONLY ONE municipality
(Cervantes) during the Japanese occupation. Abaya accepted these appointments made
during the Japanese occupation and served as JP until 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, Abaya was again appointed as JP of TWO muncipalities (Cervantes and
Angaki), after which a DILG delegate designated Abaya as a “temporary JP”, where
Abaya’s appointment is subject to termination as soon as his successor was
appointed by the central office.

Upon the restoration of peace and order and upon normal functioning of the
Commonwealth government, President Osmeña gave Abaya an ad interim appointment
as JP. When this appointment was submitted to the Commission on Appointment, it was
turned down. Abaya was again appointed as JP by President Roxas, but the Commission
on Appointment did not act upon the appointment. Due to the inaction of the Commission
on Appointment, President Roxas extended an ad interim appointment to Alvear which
was accepted by the latter, and whose appointment was later confirmed by the
Commission on Appointment.

Abaya claims to have sent several protest letters against his being deprived of his old post
to the Office of the President and conferred with the VP and another Senator. Failing to
receive immediate relief, Abaya commenced quo warranto proceedings for the
purpose of having him declared the legal and lawful JP and to have Alvear removed .

Alvear claims that Abaya had lost his right, title or valid claim to the position of JP of
Cervantes and Angaki by reason of ABANDONMENT, consisting in his acceptance of
the position of JP 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.

ISSUE:
WON Abaya abandoned his office as Justice of Peace of the 2 municipalities (Cervantes
and Angaki) in the Province of Ilocos Sur?

RULING:

NO. Because of the abnormal conditions obtaining in Ilocos Sur, particularly the
towns of Cervantes and Angaki during the war, there was reason to believe that the
changing of the original circuit occupied by Abaya eliminating therefrom the town
of Angaki, was temporary measure 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 significant to note that when said old circuit was restored, the petitioner was likewise
 restored to his old post by appointments extended by two administrations (Osmena &
Roxas).

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 JP of 1
municipality alone during the occupation and accepting a new appointment to his old
circuit (2 municipalities) 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 JP in the same place
and area which he did before the war. The appointments by Presidents Osmena and
Roxas, though not confirmed by the Commission on Appointment, were unnecessary;
that it did not and could not add anything to or diminish his right to the office conferred
by his original appointment, but that said appointments may be regarded as a mere
restitution of the office which belonged to him but which he failed to hold because of,
and during the war.

2. Potot v. Bagano, 82 Phil 679(1949) (FERNANDO)

Acceptance of other public offices incompatible with judicial functions operate as an
abandonment of the position of a justice of the peace.

Facts: Petitioner was appointed justice of the peace of Pilar, Cebu, in 1933 until 1944
when he ceased to act for reasons not disclosed in the record.

In 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. Vicente de Roda
was later succeeded by Felixberto R. Sosmeña, who was justice of the peace until April
1946. From the latter date September 1946, the office of justice of the peace of Pilar was
vacant.

Petitioner joined the police force of Cebu as lieutenant from June 1947 to January 15,
1948. From January 16 to April 24 of the same year, he was Assistant Provincial Warden.
Now, petitioner seeks reinstatement as justice of the peace of Pilar. Hence, this petition.

Issue: Whether or not petitioner shall be reappointed to his old position as justice of the
peace of Pilar.

Ruling: No. Acceptance of other public offices incompatible with judicial functions
operate as an abandonment of the position of a justice of the peace.
Petitioner was forced to seek or accept 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 employment 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 a
position without any permanent incumbent, he did not enter public service, and he did not
raise a finger to claim his judicial post. It would seem that he lost all interest in the same
until he changed his mind.

3. Serafin v. Cruz, 58 Phil 611 (1933) (PEÑA)

Facts: Complainant Father Victorino Lopez, a parish priest of Bulacan, filed
administrative charges against Simplicio Serafin in his capacity as chief of police of the
aforesaid municipality of Bulacan for negligence in the performance of his duties before
the provincial board of Bulacan. Said charges were endorsed to the municipal council of
Quiñgua after conducting the necessary investigation of the case, it exonerated the said
complainant.
Complainant appealed to the provincial board. It ordered that the respondent
chief of police be dismissed. Thereafter, municipal president of Quiñgua, Anselmo D.
Garcia, issued an executive order dismissing the said chief of police and appointed Justo
 C. Cruz as permanent chief of police of the municipality of Quiñgua. By which was
approved by the council.
After the receipt of the order of dismissal, Serafin filed with the new provincial
board a motion for reconsideration of the decision ordering his dismissal. The new
provincial board granted the said motion for reconsideration, and after conducting a new
hearing of the case, it ordered the immediate reinstatement of the said appellee in the
office of chief of police of the municipality of Quiñgua. However, the municipal
president informed the provincial board that he had already permanently appointed
another in place of the dismissed chief of police.
The case was filed before the CFI of Bulacan. The court ruled in toto with the
findings of the provincial board for the reinstatement of Serafin as chief of police. Thus,
this appeal before the Supreme Court.

Issue:Whether or not a duly appointed and qualified chief of municipal police may be
dismissed in order to reinstate another who had been discharged for the same office

Ruling:No. The extraordinary legal remedy of quo warranto does not lie against a duly
and legally appointed chief of municipal police who has duly qualified for and has
entered upon the performance of his duties, in order to reinstate another who has been
legally dismissed from the said office.
In this case, Section 2272 of the Administrative Code, as amended by section 2
of Act No. 3206 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 official is not one of the
causes designated by the law for the removal therefrom of one who has been permanently

4. Lacson v. Romero, 84 Phil. 740 (1949) (DAVID)

Facts:
Involved in these quo warranto proceedings filed directly with this Court is the Office of
Provincial Fiscal of Negros Oriental, and the right to said position as between the
petitioner ANTONIO LACSON and the respondent HONORIO ROMERO.

Petitioner Lacson was appointed by the President of the Philippines, provincial fiscal of
Negros Oriental. The appointment was confirmed by the Commission on Appointments,
took his oath and performed the duties of that office.

The President nominated petitioner Lacson to the post of provincial fiscal of Tarlac then
he nominated for the position of provincial fiscal of Negros Oriental respondent Romero.
Both nominations were simultaneously confirmed by the COA. Lacson neither accepted
the appointment nor assumed the office of fiscal of Tarlac. But respondent Romero took
his oath of office, notified the Solicitor General of the fact, and thereafter proceeded to
his station.

He notified Lacson of his intention to take over the office the following day, but Lacson
objected. Romero appeared in a criminal case and special proceedings but Lacson
objected to said appearance but the courts overruled his objection.

When petitioner Lacson requested payment of his salary, Provincial Auditor and L. J.
Alfabeto, Provincial Treasurer turned down his claim and instead paid respondent
Romero the salary.

The purpose of the present action is to establish the right of the petitioner to the post of
provincial fiscal of Negros Oriental and to oust the respondent Romero therefrom.

Issue:
 Does the nomination of Lacson to Tarlac and its confirmation by the Commission on
Appointments serve as and is equivalent to a removal of Lacson as fiscal of Negros
Oriental? If in the affirmative, was that removal and lawful?

Ruling:

The appointment to a government post like that of provincial fiscal 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 confirm said nomination. The last step is the acceptance thereof by the appointee
by his assumption of office.

The first two steps, nomination and confirmation, 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. "there is
no Power in this country which can compel a man to accept an office."

Consequently, since Lacson has declined to accept his appointment as provincial fiscal of
Tarlac and no one can compel him to do so, then he continues as provincial fiscal of
Negros Oriental and no vacancy in said office was created, unless Lacson had been
lawfully removed as Such fiscal of Negros Oriental.

A provincial fiscal as a civil service official may not be removed from office even by the
President who appointed him, and even with the consent of the Commission on
Appointments, except for cause. A provincial fiscal duly appointed, until he reaches the
age of 65 has the right to continue in office unless sooner removed for cause. In other
words, he enjoys tenure of office, which is duly protected by statute and by the
Constitution.

5. Acosta v. Flor, 5 Phil 18 (1905) (DE GUZMAN)

Facts:
Plaintiff Pedro Acosta alleges that at the municipal elections held in the town of Laoag,
Province of Ilocos Norte, the plaintiff and the defendant, David Flor, were candidates for
the office of municipal president of the said town; that as a result of the said election the
plaintiff was elected to the said office by a majority of 100 votes, and that
notwithstanding this fact the defendant has usurped said office and unlawfully held the
same since the plaintiff was the person entitled to the exercise of said office. As such, the
plaintiff prays the exclusion of defendant from the exercise of such office 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.

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 office in question; and (2) that there was
no necessity to inquire into the right of the defendant to hold the said office 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 office of municipal president and other
municipal officials, and for the further reason that the presumption is that a person
holding a public office was duly appointed or elected thereto.

ISSUE:
 WON Whether, the plaintiff can maintain an action for the removal of a public
officer from the exercise of office, despite his failure to show that he had any right to
the office? NO

RULING:

NO. In an 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. 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.

If the legislator had intended to give to all citizens alike the right to maintain an action for
usurpation of public office, he would have plainly said so in order to avoid doubt, and a
simple provision would have sufficed for this purpose. However, the legislature has
especially and specifically provided in sections 199, 200, and 201 who must and who
may bring such actions. Which are the ff: Attorney-General, the provincial fiscal, and
the individual claiming to be entitled to the office unlawfully held and exercised by
another. As such, an individual who does not claim to have such a right can not bring an
action for usurpation of public office.

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 office 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.

6. Garcia v. Perez, 99 SCRA 628 (1980) (FERNANDO)

Facts: The position of Senior Clerk in the Fiscal Management and Budget Division of
the Court of Appeals (P4,800 per annum) became vacant. The petitioner, Purificación V.
Garcia, who was then occupying another position of Senior Clerk in the same division
(P3,400 per annum), filed an application for the vacant position.

But the clerk appointed respondent Angelo Perez, formerly a cash and payroll clerk in the
same division, to the vacant position. Because of that, the petitioner filed with the CSC, a
protest on the ground that she was next in rank, better qualified and entitled to
preferential appointment to the position.

The Commissioner of Civil Service endorsed the petitioner's protest to the Presiding
Justice of CA for comment. In a second endorsement, the CA recommended approval of
the appointment of the respondent after carefully studying the records and efficiency
ratings of the ranking employees in said division where the vacancy exists. Hence, the
CSC approved the appointment of the respondent as Senior Clerk.

Upon being informed of the approval of respondent's appointment, the petitioner filed an
MR to the Commissioner but it was denied.

When the position of Cash and Payroll Clerk was vacated by the respondent, the
Presiding Justice of CA appointed Virginia Soriano thereto. The petitioner protested to
CSC 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.
The petitioner commenced the present action but three days later, she went to 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 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." The court a quo further
noted that: "Another circumstance which militates against the present action is that it
commenced beyond the period of one year from the time the alleged right of the
petitioner to hold the office in question arose.

Issue: Whether or not the petitioner has the right to bring a quo warranto proceeding
questioning the legality of the appointment of the respondent.

Ruling: No. Nothing is better settled than that a petitioner in a quo warranto proceeding
to try title to a public office, must be able to show that he is entitled to said office,
Absent such an element, the petition must be dismissed. Under the case of Acosta v. Flor
(1905): “No individual can bring a civil action relating to usurpation of a public office
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.”

Followed with stricter firmness in Cuyegkeng v. Cruz, the Court held that 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 office 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.

7. Cruz v. Ramos, 84 Phil. 226 (1949) (PEÑA)

Facts: This case was an original petition of Quo Warranto filed directly before the
Supreme Court. Petitioners allege that they are members of the Municipal Board
of the City of Manila and they have been elected in the general elections of 1947
to compose the ten members of the Board, for a term of four years. They contest
the validity of Republic Act No. 409, known as the Revised Charter of the City of
Manila. Due to the said law, the President appointed the respondents Placido
Ramos, Fernando Monleon and Luis Villaceran members of the municipal board
to fill the vacancy caused by the appointment of Eustaquio Balagtas as Director of
Prisons and two new additional positions. By which, according to the petitioners,
is unconstitutional. 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.
The petitioners also contend that at least any two of the respondents are
illegally usurping or exercising the rights and privileges and discharging the
duties exclusively pertaining to the petitioners. The respondents in their answer
contend that: (1) that the petitioners have no legal capacity as the petitioners do
not claim to be entitled to occupy the office now held by the respondents (2) that
the respondents are lawfully holding the office in question, they having been duly
appointed thereto by the President of the Philippines; and (3) that Republic Act
No. 409 is constitutional.

Issue: Whether or not the petition of Quo Warranto may lie if the petitioners do
not claim to be entitled to the office and even the said appointments do not
illegally usurp the position of the petitioners

Ruling:No. 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 office alleged to be unlawfully held or exercised by the
respondents. A public office 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 office 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 office alleged to be usurped or unlawfully
held or exercised by another.
In this case, 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.