After liberation and upon the establishment of what the

Rule 66 – Quo Warranto parties term a military government, in Ilocos Sur, Abaya
was appointed by the military governor as justice of the
Abaya v. Alvear, 82 Phil. 103(1948)  peace of the municipalities of Cervantes and Angaki,
Ilocos Sur. Then on Aug. 1, 1945, Mauro Versoza,
G.R. No. L-1793            November 9, 1948 acting as delegate of the Department of the Interior,
designated the petitioner temporary justice of the peace
JOSE ABAYA, petitioner,
of Cervantes and Angaki, the appointment to "terminate
vs. ALEJANDRINO A. ALVEAR, respondent.
as soon as your successor is appointed by the central
office." Upon the restoration of peace and order and
PUBLIC OFFICERS; ABANDONMENT OF OFFICE BY
upon normal functioning of the Commonwealth
ACCEPTANCE OF ANOTHER; RULE DURING
government, petitioner was, on Feb 8, 1946, given
ABNORMAL CONDITIONS.—Because of the
an ad interim  appointment by President Sergio Osmeña
ABNORMAL CONDITIONS obtaining in Ilocos Sur,
to the post of justice of the peace for the towns of
particularly the towns of Cervantes and Angaki during
Cervantes and Angaki. However, when this
the war, there is reason to believe that the changing of
appointment was submitted to the Commission on
the original circuit occupied by Abaya by eliminating
Appointments, it was turned down. Abaya was given
therefrom the town of Angaki, was a mere temporary
another appointment as justice of the peace by
expedient to meet the exigencies of the administration
President Manuel Roxas for the municipalities of
of justice in that area, under abnormal conditions, and
Cervantes and Angaki on December 5, 1946 but said
that his ACCEPTANCE of the new post DID NOT
appointment was left without being acted upon by the
INVOLVE or entail ABANDONMENT of his old position.
Commission on Appointments.
The doctrine laid down in the case of Teves vs.
Sindiong (81 Phil., 658) applied and reiterated. On June 13, 1947 and presumably because of the
failure of the Commission on Appointments to approve
MONTEMAYOR, J.: the appointment of the petitioner, President Manuel
Roxas extended an ad interim  appointment to the post
There is no dispute as to the following facts: The of justice of the peace of Cervantes and Angaki in favor
petitioner Jose Abaya now sixty-one years of age and a of the respondent Alejandrino A. Alvear who accepted
member of the Bar, was on October 9, 1920 appointed said appointment and assumed office on July 5, 1947.
to the post of justice of the peace of the towns of Alvear's appointment was later confirmed by the
Cervantes, Angaki, Concepcion and San Emilio, Commission on Appointments. In respondent's answer
Province of Ilocos Sur and he qualified for the position he claims that when he assumed office the Abaya was
and discharged the duties thereof. In 1923, the nowhere to be found because he had gone to the town
municipalities of Concepcion and San Emilio were of Candon, Ilocos Sur to reside. He also states that the
excluded from his territorial jurisdiction and he petitioner has already asked the Secretary of Justice to
continued to discharge his judicial functions as justice have his application for retirement approved.
of the peace of Cervantes and Angaki up to December
31, 1941, a few days before the Japanese occupation The petitioner claims that shortly after the respondent
forces arrived in the town of Cervantes. On April 17, had assumed office as justice of the peace of
1943, said petitioner was given an appointment as Cervantes and Angaki, he, the Abaya wrote a letter to
justice of the peace of Cervantes only, by Jorge B. His Excellency, the President of the Philippines
Vargas, chairman of the "Philippines Executive protesting against his being deprived of his old post
Commission." Then on May 1, 1944, Jose P. Laurel as although, no copy of said letter could be found in the
"President of the Republic of the Philippines" extended office of the Assistant Executive Secretary of
to him another appointment as justice of the peace of Malacañan. The petitioner further claims that when he
the same town of Cervantes, Ilocos Sur. Abaya failed to receive any answer to his letter to the
evidently accepted these appointments made during President, he conferred with Honorable Elpidio Quirino,
the Japanese occupation and continued to discharge then Vice-President of the Philippines and Senator
his judicial function of the peace but only for the town of Prospero Sanidad regarding his being restored to the
Cervantes, until the month of November, 1944 when, position for justice of the peace of Cervantes and
because of the threat of military clashes between Angaki. Failing to receive immediate relief, he
Japanese forces on one side and the Filipino guerrillas commenced these quo warranto  proceedings in this
on the other, he left his post and fled to the mountains Court for the purpose of having him declared the legal
for safety. and lawful justice of the peace for the towns already
referred to and have the respondent ousted therefrom.

JDSPECA | Cases | Rule 66 | 1

His complaint was received by this Court on November Siquijor. Plaintiff Teves resumed, or rather qualified for said
14, 1947. office and discharged the duties thereof.

The theory of Alvear is that petitioner had lost his right, On May 1, 1945, Teves was again appointed acting  justice
title or valid claim to the position of justice of the peace of the peace of Luzurriaga, Bacong and Dauin, by special
of Cervantes and Angaki by reason of abandonment, agent Jose M. Aldeguer of the Department of the Interior,
by virtue of the authority vested in that Department by the
consisting in his acceptance of the position of justice of
President of the Commonwealth of the Philippines, said
the peace of Cervantes only, during the Japanese
appointment bearing the approval of the Commanding
occupation, said position being different and distinct
Officer of PCAU 24. On the same day, the plaintiff qualified
from the circuit of Cervantes and Angaki held by him for and assumed said office. Then, on December 26, 1945,
before the war; his acceptance of the position of Teves was again appointed by President of the Philippines
temporary justice of the peace of Cervantes and Angaki Sergio Osmena, as ad interim justice of the peace of
under an appointment extended by a Special Delegate Luzurriaga, Negros Oriental. Teves again qualified for and
of the Department of the Interior; his departure from his assumed said office. However, when his appointment was
circuit of Cervantes and Angaki, and his residence in submitted to the Commission on Appointments, it was not
Candon, Ilocos Sur; lastly, his insistence on the confirmed. Despite this non-confirmation, plaintiff Teves
approval of his retirement and, his inaction for several continued in office.
months from June 30, 1947 to November 30, 1947,
evidencing his intention to abandon his office. In the meantime, and presumably because of his non-
confirmation of Teves' appointment, the President of the
This Court has recently decided a case whose facts are Philippines nominated the defendant Perpetuo A. Sindiong
very similar to present case. We refer to the case of Teves justice of the peace of Luzurriaga and said nomination was
vs. Sindiong1, promulgated on October 21, 1948. In said confirmed by the Commission on Appointments on
case the facts are related in the statement which we quote: September 3, 1946. Sindiong took the corresponding oath
on September 14, 1946, and then advised the plaintiff of his
On December 19, 1914, Pablo Teves was appointed justice appointment and demanded of him the surrender of the
of the peace of Luzurriaga, Negros Oriental. He qualified for office. Plaintiff refused to comply with this demand, insisting
and assumed said office on January 14, 1915, and had that he was the legitimate justice of the peace of
since discharged the duties of said office up to the outbreak Luzurriaga. On being apprised of the situation, the Judge of
of the Pacific war in December, 1941. Negros Oriental, or the Court of First Instance of Negros Oriental issued a
part thereof, was subsequently occupied by then Japanese summary order dated September 23, 1946, directing
army. The plaintiff followed and stayed with the guerrillas in plaintiff Pablo Teves to make delivery within ten days of the
the free area and continued to discharge his duties as office of justice of the peace of Luzurriaga, together with the
justice of the peace of that part of Luzurriaga not occupied documents and records pertaining thereto to the defendant
by the invaders. However, sometime in October 1943, the Perpetuo A. Sindiong, under penalty of contempt. To avoid
plaintiff was arrested by a Japanese patrol and was later unpleasant consequences, Teves surrendered the office
taken down to Dumaguete, capital of Negros Oriental, and and its records to Sindiong on October 7, 1946, and a week
there kept a virtual prisoner. Because of plaintiff's absence later, or on October 14, he commenced the present action
from the free area of Luzurriaga where a free government in the Court below.
had been organized and maintained by the guerrilla forces,
the Deputy Governor of said government appointed Atty. In that case we held that because of the abnormal
Mauro Edrial as justice of the peace of said municipality of conditions obtaining in Negros Oriental by reason of the
Luzurriaga. Edrial qualified for the position and performed war the formation of new judicial circuits including
the duties thereof from July 8, 1944 to January 4, 1945. In Luzurriaga — first, the grouping of Luzurriaga and Bacong,
October, 1944, Pablo Teves managed to escape from his and later the merger of the three towns of Luzurriaga,
confinement in Dumaguete, went to the free area of Bacong and Dauin, into a circuit — was a makeshift
Luzurriaga, and asked the Deputy Governor under the arrangement, a mere temporary expedient, far from being
guerrilla Government to restore to him his post of justice of permanent in nature, but merely designed to meet and
the peace of Luzurriaga. He was advised that before he solve the exigencies of the administration of justice in those
could be reinstated he should secure a clearance certificate areas in the manner possible under said abnormal
from the guerrilla military authorities to prove his loyalty to conditions; that the law and doctrines governing
the Filipino cause. Plaintiff secured the necessary abandonment of an office may not and should not be strictly
clearance, and, on January 4, 1945, he was appointed applied to cases occurring during the war, specially in those
justice of the peace of the municipalities of Luzurriaga and areas occupied partly or by the enemy; and that
Bacong, 6th Administrative District, by Deputy Governor considering the surrounding circumstances, we ruled that in
Margarito Teves, which appointment was approved by accepting the post of justice of the peace of Luzurriaga and
Alfredo Montelibano, Governor of the Islands of Negros and Bacong and later of the office of justice of the peace of
Luzurriaga, Bacong and Dauin, Teves did not abandon his

JDSPECA | Cases | Rule 66 | 2

post justice of the peace of Luzurriaga. We also held in said not confirmed by the CoA, was unnecessary; that it did
case that the acceptance by Teves of the ad not and could not add anything to or diminish his right
interim  appointment in December, 1945, of his old post of to the office conferred by his original appointment, but
justice of the peace of Luzurriaga was not a waiver of his that said appointments may be regarded as a mere
right and title to the old post; that he had the right to hold restitution of the office which belonged to him but which
the same, not under the new ad interim  appointment in he failed to hold because of, and during the war.
December, 1945, but by virtue of his original appointment in
1914, for the reason that one cannot be properly appointed We find no merit in the other grounds advanced by the
to the same post; that he is already holding under a valid
Alvear. When the Alvear assumed the office of justice
appointment. In addition, we observed in that case that a
of the peace of Cervantes and Angaki, there was
subsequent appointment to the post of justice of the peace
extended to one who already had a right to it because of a NO REASON NOR OBLIGATION on the part of the
previous pre-war appointment under which he had qualified petitioner to continue residing in Cervantes. He was
and discharged his duties, may be regarded as a mere prompted to reside in Candon perhaps because it was
restitution or restoration of the position which belonged to his native town. Furthermore, his asking the
him; and that the new appointment can add nothing to or government to act upon his application for retirement
diminish his right to the office conferred by his original may not be regarded as evidence of intent to abandon
appointment. his office. We understand that such applications for
retirement had, years ago, been filed by many
Applying the doctrine laid down in that case of Teves government officials in order to secure the benefits of
vs. Sindiong2 including the observations made therein, the retirement law. And his urging the government to
we find and so hold that because of the abnormal act upon such application was perhaps a mere
conditions obtaining in Ilocos Sur, particularly the towns precaution for purposes of security in case that he lost
of Cervantes and Angaki during the war, there is reason his office against his will. His very letter to the Secretary
to believe that the changing of the original circuit of Justice in this regard (Exhibit 7) states that his
occupied by Abaya be eliminating therefrom the town of successor to the post of justice of the peace of
Angaki, was a mere temporary expedient to meet the Cervantes and Angaki was appointed without his
exigencies of the administration of justice in that area, knowledge. And to further demonstrate that he did not
under abnormal conditions, and that his acceptance of intend to lose said office without effort or fight, he filed
the new post DID NOT INVOLVE or entail these proceedings not long after he was deprived
abandonment of his old position. In proof of the thereof.
temporary nature of the change in the circuit is the fact
that when conditions returned to normal, the old circuit In view of the foregoing, we hold and decide that the
comprising the towns of Cervantes and Angaki was petitioner Jose ABAYA NEVER ABANDONED HIS
restored. And it is significant to note that when said old OFFICE of justice of the peace of Cervantes and
circuit was restored, the Abaya was likewise restored to Angaki, Province of Ilocos Sur, and that he is entitled to
his old post by appointments extended by two the same by virtue of his pre-war appointment; and
administrations, that of President Osmena and the respondent Alejandrino A. Alvear is hereby ordered to
administration of President Roxas. deliver said office and all the records appertaining
thereto to said petitioner. No pronouncement as to
We may add, as we have stated in the case of Teves costs. So ordered.
vs. Sindiong that in those days Abaya could not very
well dictate his terms of acceptance of the positions Moran, C. J., Paras, Feria, Pablo, Perfecto, Bengzon,
extended to him. He had to take them as they came, Briones and Tuason, JJ., concur.
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 office 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
Osmena and later by President Roxas, to his old post of
justice of the peace of Cervantes and Angaki though

JDSPECA | Cases | Rule 66 | 3

 That Potot was forced to seek or accept jobs in order to
live would not alter the case even if we assume, for the
Potot v. Bagano, 82 Phil 679(1949)  sake of argument, that economic necessity was a valid
plea. The government was not the only source of
G.R. No. L-2456             January 25, 1949 gainful employments that could have tide him over
while waiting, as he says, for reappointment to his old
NICOLAS B. POTOT, petitioner, position. The truth is that for almost two years after
vs. JUAN L. BAGANO, the SEC. OF JUSTICE and
liberation, before he accepted other government
the JUDGE OF CFI OF CEBU, respondents. positions, he got position was without any permanent
incumbent, he did not enter public service, and he did
PUBLIC OFFICERS; JUSTICE OF THE PEACE; not raise a finger to claim his judicial post. It would
ABANDONMENT OF POSITION; ACCEPTANCE OF seem that he lost all interest in the same until he
INCOMPATIBLE PUBLIC OFFICE.—Acceptance of changed his mind or found he had is dismissed with
other public offices INCOMPATIBLE with judicial costs.
functions operate as an ABANDONMENT of the
position of a justice of the peace. (Floresca vs. Quetulio, The petition is dismissed with costs.
supra and Maddumba vs. Ozaeta, supra, p. 345).

TUASON, J.:

This is a quo warranto proceeding instituted by a

prewar justice of the peace whose position was filled by Serafin v. Cruz, 58 Phil 611 (1933) 
the appointment and confirmation of the respondent
after liberation. G.R. No. L-39224             October 24, 1933

The facts bring this case within the authority of  Luis SIMPLICIO SERAFIN, plaintiff-appellee, legally dism
Floresca vs. Amparo Quetulio, supra , p. 128 vs. JUSTO C. CRUZ, defendant. – permanently appointed
and Domingo Maddumba vs. Roman Ozaeta, supra , p.
345. Potot's acceptance of other public offices QUO WARRANTO; CHIEF OF POLICE.—The
incompatible with judicial function OPERATE as an extraordinary legal remedy of quo warranto DOES NOT
ABANDONMENT of the position to which he seeks LIE against a duly and legally appointed CHIEF OF
reinstatement. MUNICIPAL POLICE who has duly qualified for and
has entered upon the performance of his duties, in
It remains the Potot was appointed justice of the peace order to reinstate another who has been legally
for the municipality of Pilar, Province of Cebu, in dismissed from the said office.
November, 1933. He had held that office until April 25,
1944 (Exhibits 1 and 2), when he ceased to act for VILLA-REAL, J.:
reasons not disclosed in the record. On August 19,
1945, the jurisdiction of the justice of the peace of San This is an appeal taken by the respondent Justo C.
Francisco, Poro and Tudela, Vicente de Roda, was Cruz from the judgment rendered by the CFI of
extended to comprise the municipality of Pilar (Exhibits Bulacan, the dispositive part of which reads as follows:
3, 4, and 5). Vicente de Roda was later succeeded by
Felixberto R. Sosmeña, who was justice of the peace Wherefore, it is but just and equitable that judgment be
until April 14, 1946. From the latter date September 1, rendered in this case in favor of the plaintiff Simplicio
1946, the office of justice of the peace of Pilar was Serafin, declaring that he is entitled to hold the office of
vacant. It was on the last mentioned date that the chief of police of the municipality of Quiñgua, and it is
respondent Bagano entered upon the performance of hereby ordered that he be reinstated therein with all the
his duties in that office. privileges and emoluments appurtenant thereto in
conformity with the law, from the date of this decision.
Potot joined the police force of the City of Cebu as
lieutenant from June 11, 1947, to January 15, 1948 The defendant herein cannot be sentenced to pay the
From January 16, 1948, to April 24 of the same year, costs on the ground that the municipal president who is
he was Assistant Provincial Warden (Exhibits A, B, and liable therefor, was not included as party defendant
C.) herein. Neither can the defendant be deprived of the
emoluments already collected by him on the ground
that he rendered services and collected such

JDSPECA | Cases | Rule 66 | 4

emoluments on the strength of the appointment issued On January 12, 1931, Father Victorino Lopez, Parish
in his favor by the municipal president himself. Priest of Quiñgua, Bulacan, filed with the provincial
board of Bulacan, administrative charges against the
In support of his appeal the appellant assigns the appellee herein, Simplicio Serafin, in his capacity as
following alleged errors in the decision of the trial court, chief of police of the municipality of Quiñgua, Bulacan,
to wit: for negligence in the performance of his duties.
Inasmuch as said charges were endorsed to the
I. The lower court erred in not declaring that the municipal council of Quiñgua for appropriate
decision rendered by the former provincial board of investigation and decision, said municipal council, after
Bulacan, dated October 3, 1931, being final and conducting the necessary investigation of the case,
conclusive, the plaintiff is not entitled to any other issued on February 13, 1931, resolution No. 9 (Exhibit
remedy except to invoke the authority of intervention of 1) exonerating (acquit) the said complainant herein.
the Governor-General of the Philippine Islands in case
of manifest abuse of discretion on the part of said From this resolution, the complaint therein, Father
provincial board. Victorino Lopez, appealed to the provincial board then
composed of Jose Padilla, provincial governor, and
II. The lower court erred in not declaring that the actual Aniceto Crisostomo and Teofilo Sauco, members,
provincial board of the Province of Bulacan has no which, after due hearing, rendered judgment therein on
Jurisdiction over the case. October 3, 1931, the dispositive part of which reads as
follows:
III. The lower court erred in not declaring that the
decision of the actual provincial board of the Province Wherefore, the board is of the opinion that due to his
of Bulacan, dated January 21, 1932, decreeing the inefficiency, misconduct, and record, the herein
reinstatement of the plaintiff in the position of chief of respondent should be separated from the service,
police of the municipality of Quiñgua, Bulacan, is null particularly during this time when there are so many
and void. eligibles, and government institutions are entitled to
select the officials who have a keen sense of
IV. The lower court erred in not finding that by virtue of
responsibility.
the final decision of the former provincial board of
Bulacan, dated October 3, 1931, ousting the herein Therefore, it is hereby ordered that the respondent chief
plaintiff from the position of chief of police of the of police Serafin of the Quiñgua be dismissed.
municipality of Quiñgua, Bulacan, said municipality had,
in accordance with law, the right to declare said position It is so resolved.
vacant and to appoint another one in lieu of said
plaintiff. Teofilo Sauco, member of the aforesaid provincial
board, dissented from the resolution in question in the
V. The lower court erred in declaring that the former belief that dismissal was too severe a penalty therefor
provincial board of Bulacan had committed errors in and that suspension for six months would be sufficient.
decreeing the complete separation of the plaintiff from
the service as chief of police of the municipality of In view of the foregoing , on October 14, 1931, the
Quiñgua, Bulacan. municipal president of Quiñgua, Anselmo D. Garcia,
issued executive order No. 1, series of 1931, dismissing
VI. The lower court erred in ordering the reinstatement the said appellee  chief of police of the municipality of
of the plaintiff Simplicio Serafin in the position of chief of Quiñgua, Simplicio Serafin, from the evidence and
police of the municipality of Quiñgua, Bulacan with all appointed the herein respondent-appellant, Justo C.
the privileges and emoluments from the date of the Cruz, permanent chief of police of the municipality of
decision of the court, December 20, 1932, and in not Quiñgua (Exhibit F). After having been submitted to the
declaring that herein defendant Justo C. Cruz is the new council of Quiñgua for approval during its session
rightful chief of police of said municipality, entitled to all of October 16, 1931, said appointment was definitely
privileges and emoluments corresponding to his confirmed by a vote of four to three.
position from his appointment until he be legally ousted
from said position. The records do not show the exact date on which the
herein plaintiff-appellee received notice of the decision
The following pertinent facts are necessary for the of the provincial board, dated October 3, 1931, and of
solution of the question raised in this appeal, to wit: the order of his dismissal dated October 14, 1931, but
the postmaster of the municipality of Quiñgua certified

JDSPECA | Cases | Rule 66 | 5

(Exhibit 2) that a registered letter, No. 979, addressed be preferred under oath by the municipal president or
to the plaintiff-appellee was delivered to the latter on by any other person and investigated by the municipal
October 14, 1931. council, or a committee of three councilors designated
for said purpose by a majority of the council, in public
The term of office of the members of the provincial hearing, and the accused shall be given opportunity to
board which issued order of dismissal dated October 3, make their defense. . . .
1931, expired on October 15, 1931, and they were
substituted by Cirilo B. Santos, provincial governor, and Mechem in "Law of Public Offices and Officers", page
Juan Suerte Felipe and Jose G. De Jesus, members, 294, paragraph 461, states:
who were elected on June 5, 1931.
. . . When the appointing power has once acted and the
Fifteen days after Oct 14, 1931, that is on Oct 29, appointee has accepted the office and done what is
1931, the Serafin filed with the new provincial board a required of him upon its acceptance, his title to the
MR of the decision ordering his dismissal rendered by office becomes complete, and he can then be removed
the former provincial board on Oct 3, 1931, and of only in the regular way. (Marbury vs. Madison, 1
which he was notified on Oct 14, 1931. Cranch [U. S.], 137.)

The new provincial board granted the said motion for In the case at bar, the herein defendant-appellant,
reconsideration, and after conducting a new hearing of Cruz, was permanently appointed chief of police of
the case, rendered judgment on January 21, 1931, Quiñgua by the president of the said municipality, to fill
exonerating the plaintiff-appellee of the charge of the vacancy created by the dismissal from said office of
"negligence in the performance of his duties", and by an the plaintiff-appellee Serafin, as ordered by the
executive order dated May 3, 1932, addressed to the provincial board of Bulacan after the necessary
president of the municipality of Quiñgua, ordered the proceedings provided by law. The appointment in
immediate reinstatement of the said appellee in the question was confirmed by the municipal council of
office of chief of police of the municipality of Quiñgua. In Quiñgua after the appointee had qualified and entered
a communication dated May 7, 1932, addressed to the upon the performance of his duties as chief of police. In
aforesaid provincial board, the said municipal president accordance with the authority cited above, the Cruz has
informed the latter that he had already permanently acquired a vested right in the office and cannot be
appointed another in place of the dismissed chief of removed nor dismissed therefrom except for any of the
police. causes designated and in accordance with the
proceedings established by law. The legal provision
The purpose of the present appeal is to have the quoted above expressly states that members of the
respondent Cruz expelled from the office of the chief of municipal police shall not be removed and, except in
police of the municipality of Quiñgua and Serafin cases of resignation, shall not be discharged from the
reinstated therein. service, except for misconduct or incompetency,
dishonesty, disloyalty to the United States or Philippine
The principal question to decide in the present appeal is Government, serious irregularities in the performance of
not whether or not a provincial board but whether or not their duties, and violation of law or duty. The
a duly appointed and qualified chief of municipal police reinstatement of the dismissed official is not one of the
who has entered upon the performance of his duties as causes designated by the law for the removal therefrom
such, may be dismissed therefrom in order to reinstate of one who has been permanently appointed to
another who had been dismissed from such office substitute the former.
pursuant to a legal, valid and conclusive decision.
In view of the foregoing considerations, we are of the
Section 2272 of the Administrative Code, as amended opinion and so hold that the extraordinary legal remedy
by section 2 of Act No. 3206, provides the following: of quo warranto does not lie against a duly and legally
appointed chief of municipal police who has duly
SEC. 2272. Suspension and removal of members of qualified for and has entered upon the performance of
municipal police. — Members of the municipal police his duties, in order to reinstate another who has been
shall not be removed and, except in cases of legally dismissed from the office in question.
resignation, shall not be discharged except for
misconduct or incompetency, dishonestly, disloyalty to Wherefore, the judgment appealed from is hereby
the United States or Philippine Government, serious reversed and the quo warranto proceedings dismissed,
irregularities in the performance of their duties, and with the costs against the appellee. So ordered.
violation of law or duty, and in such cases charges shall

JDSPECA | Cases | Rule 66 | 6

 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. Article XII, section 4 of
the Constitution provides that no officer 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
Lacson v. Romero, 84 Phil. 740 (1949) 
Executive to remove those civil service offlcials whom
G.R. No. L-3081             October 14, 1949 he appoints.

ANTONIO LACSON, petitioner, - unlawfully removed 5.ID.; ID.; TENURE OF OFFICE.—A provincial fiscal
vs. HONORIO ROMERO, ET AL., respondents.  duly appointed, until he reaches the age of 65 has the
right to continue in offlce unless sooner removed for
1.PUBLIC OFFICERS; PROVINCIAL FISCAL; cause. In other words, he enjoys tenure of office, which
APPOINTMENT OF; INVOLVES SEVERAL STEPS.— is duly protected by statute and by the Constitution.
The appointment of provincial fiscal to be complete
involves several steps. First, comes the nomination by 6.ID. ; REMOVAL OR SUSPENSION OF A CIVIL
the President. Then to make that nomination valid and SERVICE OFFICIAL OR EMPLOYEE, REQUISITES
permanent, the Commission on Appointments of the OF.—By the mandate of sections 64 and 694 of the
Legislature has to confirm said nomination. The last Revised Administrative Code, before a civil service
step is the acceptance thereof by the appointee by his official or employee can be removed, there must first be
assumption of office. The first two steps, nomination an investigation at which he must be given a fair
and confirmation, constitute a mere offer of a post. hearing and an opportunity to defend himself.
They are acts of the Executive and Legislative
7.ID.; REMOVAL WITHOUT LAWFUL CAUSE IN THE
departments of the Government. But the last
GUISE OF TRANSPER FROM ONE OFFICE TO
necfessary step to make the appointment complete and
ANOTHER WITHOUT TRANSFEREE'S CONSENT,
effective, rests solely with the appointee himself. He
EFFECT OF.—To permit circumvention of the
may or he. niay not accept the appointment or
constitutional prohibition (Art. XII, sec. 4) by allowing
nomination as there is no power in this country which
removal from office without lawful cause, in the form or
can compel a man to accept an offlce.
guise of transfers from one office to another, or from
2.ID. ; ID. ; APPOINTMENT AND TRANSFER TO one province to another, without the consent of the
ANOTHER PROVINCE IS EQUlVALENT TO transferee, would blast the hopes of those young civil
REMOVAL OR SEPARATION; ILLEGALITY.—The service officials and career men and women, destroy
appointment and transfer of a provincial fiscal from one their security and tenure of office and made for a
province to another would mean his removal or subservient, discontented and inefficient civil service
separation from the first ptovince. The reason is that a force that sways with every political wind that blows and
fiscal is appointed for each province, Said removal is plays up to whatever political party is in the saddle.
illegal and unlawful unless for cause as provided by law That would be far from what the framers of our
and the Constitution, and the confirmation of the Constitution contemplated and desired. Neither would
nomination by the Commission on Appointments doea that be our concept of a free and efficient Government
not and cannot validate the removal, since the force, possessed of self-respect and reasonable
Constitution is equally binding on the Legislature. ambition.

3.ID. ; ID. ; NATURE OF OFFICE.—A provincial fiscal

who is nominated and appointed by the President with
MONTEMAYOR, J.:
the consent of the Commission on Appointments, is
under secticm 671 (&) of the Eevised Administrative
Involved in these quo warranto proceedings filed
Code included in the unclassified service of the Civil directly with this Court is the Office of Provincial Fiscal
Service.
of Negros Oriental, and the right to said position as
between the petitioner Antonio Lacson  and the
4.ID. ; ID. ; CONSTITUTIONAL PROHIBITION ;
respondent Honorio Romero.
PRESIDENT WITH CONCURRENCE OP
COMMISSION ON APPOINTMENTS MAY NOT
REMOVE PISCAL WITHOUT CAUSE.—A provincial

JDSPECA | Cases | Rule 66 | 7

The facts necessary for the decision in this case may Oriental and to oust the Romero therefrom. The petition
be stated as follows: Petitioner Lacson was on July 25, and the memorandum in support thereof among other
1946, appointed by the President of the Philippines, things contain the following prayer:
provincial fiscal of Negros Oriental. The appointment
was confirmed by the CoA on August 6, 1946. He took (1) Recognizing the right of Lacson to hold and occupy
his oath of office on August 10, 1946, and thereafter the position of provincial fiscal of Negros Orienta;
performed the duties of that office.
(2) Declaring the Romero guilty of usurpation, unlawful
Upon recommendation of the Secretary of Justice, on holding and exercise of the functions and duties of
May 17, 1949, the President nominated Lacson to the provincial fiscal of Negros Oriental; ordering the
post of provincial fiscal of Tarlac. On the same date, the exclusion of said respondent from said office; and
President nominated for the position of provincial fiscal ordering him to surrender to herein petitioner all records
of Negros Oriental respondent Romero. Both and papers appertaining to said office that may have
nominations were simultaneously confirmed by the CoA come into his possession;
on May 19, 1949.
(3) Ordering respondents provincial treasurer L. J.
Lacson neither accepted the appointment nor assumed Alfabeto and provincial auditor Angel Paguia, or their
the office of fiscal of Tarlac. But respondent Romero successors in office, to pay Lacson his salary
took his oath of office (the post of fiscal of Negros commencing June 16, 1949, up to the present time and
Oriental) in Manila on June 16, 1949, notified the until herein petitioner shall have legally ceased to be
Solicitor General of the fact, and thereafter proceeded the incumbent of said office; and
to his station. Upon arrival at Dumaguete City, capital of
Negros Oriental, he notified Lacson of his intention to (4) Ordering Honoro Romero pay the costs.
take over the office the following day, but Lacson
objected. On June 24, 1949, Romero appeared in Incidentally, and to serve as background in the
consideration of this case, it may be stated that when
criminal case No. 4433 before Judge Gregorio S.
Narvasa. In said appearance, petitioner Lacson filed his the nominations of Lacson and Romero to the posts of
Provincial Fiscal of Tarlac and Negros Oriental,
objection and asked that Romero's appearance be
stricken from the record. After Romero had exhibited respectively, were made in May, 1949, Negros Oriental
was a second class province with a salary of P5,100
his credentials as required by the court, Judge Narvasa
on the same day DENIED the petition of Lacson and per annum for the post of provincial fiscal, while Tarlac
was first class simple  with a higher salary of P5,700 per
recognized Romero as the provincial fiscal of Negros
Oriental. On June 27, 1949, Romero appeared in annum for its provincial fiscal. There is therefore reason
to believe that the nomination of Lacson to Tarlac or
Special Proceedings No. 630 before Judge Felicisimo
Ocampo. Lacson again objected to said appearance rather his attempted transfer from Negros Oriental to
Tarlac was intended and considered as a promotion. At
but the court OVERRULED his objection. This will
explain why Judges Narvasa and Ocampo were made least, there is nothing in the record to show that he was
being deliberately eased out of or removed from his
respondents in these quo warranto proceedings.
post in Negros Oriental. However, the appointments
When petitioner Lacson requested payment of his and confirmations, the President raised the province of
salary for the period from June 16 to June 23, 1949 as Negros Oriental to the category of First Class A
provincial fiscal of Negros Oriental, Angel Paguia, province with retroactive effect as of January 1, 1949. It
Provincial Auditor and L. J. Alfabeto, Provincial is alleged by Romero that after the filing of the present
Treasurer turned down his claim and instead paid petition, Tarlac was likewise raised to the category of
respondent Romero the salary for the position of First Class B province on July 15, 1949 so that
provincial fiscal from June 16, 1949, and continued thereafter the salary for provincial fiscal in both province
paying it to him periodically up to the present time. is the same, namely, P6,000 each. This might be one of
Their action was based on a reply given to their query, the reasons why petitioner to the Province of Tarlac,
by the Secretary of Justice to the effect that Romero, preferring accept his nomination to the Province of
was the provincial fiscal of Negros Oriental. This is the Tarlac, preferring to remain at his old post of provincial
reason why the Auditor and the Treasurer of Negros fiscal of Negros Oriental.
Oriental were likewise made respondents in these
The determination as to who is entitled to the position of
proceedings.
provincial fiscal of Negros Oriental, depends upon the
The purpose of the present action is to establish the correct answers to several queries such as: (1) Did the
right of Lacson to the post of provincial fiscal of Negros Commission on Appointments alone, without his

JDSPECA | Cases | Rule 66 | 8

acceptance nomination of Lacson to Tarlac and its Supreme Court [279 U. S., 1411, but on other grounds,
confirmation by the thereof create a vacancy in the post leaving the doctrine on transfer and removal
of provincial fiscal of Negros Oriental so that Romero undisturbed.) When the transfer is CONSENTED to and
could be lawfully appointed to said vacancy? (2) Does ACCEPTED by the transferees, then there would be no
the nomination of Lacson to Tarlac and its confirmation question; but where as in the present case, the transfer
by the Commission on Appointments serve as and is is INVOLUNTARY and OBJECTED to, then it is
equivalent to a removal of Lacson as fiscal of Negros necessary to decide whether the removal is lawful.
Oriental? If in the affirmative, was that removal and
lawful? (3) Could the President who appointed Lacson What is the nature of the office of provincial fiscal? Is it
as provincial fiscal of Negros Oriental remove him at included in the Civil Service? The answer is,
will and without cause, or did the post of provincial undoubtedly, in the affirmative. Article XII, section 1 of
fiscal in general have attached to it a tenure of office our Constitution provides that "a Civil Service
during which the incumbent may not be removed embracing all branches and subdivisions of the
except for cause? Government shall be provided by law." Section 668 of
the Administrative Code as amended by Com. Act No.
The appointment to a government post like that of 177, sec. 6, provides that "the Philippine Civil Service
provincial fiscal to be complete involves several steps. shall embrace all branches and subdivisions of the
First, comes the nomination by the President. Then to Government;" and section 670 of the same Code
make that nomination valid and permanent, the CoA of provides that "person in the Philippine Civil Service
the Legislature has to confirm said nomination. The last pertain either to the classified or unclassified service."
step is the acceptance thereof by the appointee by his Section 671 of the same code as amended by
assumption of office. The first two steps, nomination Commonwealth Act No. 177, section 8 in part provides
and confirmation, constitute a mere offer of a post. as follows:
They are acts of the Executive and Legislative depts of
the Government. But the last necessary step to make Sec. 671. Person embraced in unclassified. — The
the appointment complete and effective rests solely following officers and employees constitute the
with the appointee himself. He may or he may not unclassified service:
accept the appointment or nomination. As held in the
case of Borromeo vs. Mariano , 41 Phil., 327, "there is (a) A secretary, a sergeant-at-arm, and such other
no Power in this country which can compel a man to officers as may be required and chosen by the National
accept an office." Consequently, since Lacson has Assembly in accordance with the Constitution.
declined to accept his appointment as provincial fiscal
(b) Officers, other than the provincial treasurers and
of Tarlac and no one can compel him to do so, then he
continues as provincial fiscal of Negros Oriental and no Assistant Directors of Bureaus or Offices, appointed by
vacancy in said office was created, unless Lacson had
the President of the Philippines, with the consent of the
been lawfully removed as Such fiscal of Negros Commission on Appointments of the National
Oriental.
Assembly, and all other officers of the Government
whose appointments are by law vested in the President
As to the second question, it is obvious that the of the Philippines alone.
intended transfer of Lacson to Tarlac on the basis of his
nomination thereto, if carried out, would be equivalent (c) Elective officers.
to a removal from his office in Negros Oriental. To
xxx     xxx     xxx
APPOINT and TRANSFER him from one province to
another would mean his REMOVAL or SEPARATION From the foregoing, We find that the post of provincial
from the first province. The reason is that a fiscal is fiscal in the Philippines is included in subsection (b)
appointed for each province (see. 1673, Rev. Adm. above-quoted particularly the underlined portion
Code), and Lacson could not well and legally hold and thereof. The law regarding appointment to the post of
occupy the two posts of fiscal of Tarlac and Negros provincial fiscal is contained in section 66 of the
Oriental simultaneously. To be fiscal for Tarlac must Administrative Code which provides that "the Governor-
mean his removal from Negros Oriental. General (now the President) shall appoint among other
officials, Secretaries to Departments, Provincial
In the case of Nicolas vs. Alberto, 51 Phil., 370, this
Treasurers, Provincial Fiscals, Register of Deeds, etc."
Court held that "a transfer of a Justice of the Peace
And, Article VII, section 10(3) of the Constitution
outside of the municipality of which he is appointed is in
provides that the President shall nominate and with the
legal effect a combined removal  and appointment."
consent of the Commission on Appointments shall
(Decision in this case was reversed by the U. S.

JDSPECA | Cases | Rule 66 | 9

appoint among other officials, "all other officers of the report that "the greatest care should be taken in the
Government whose appointments are not herein selection of officials for administration. They should be
otherwise provided for" which clearly includes the office men of the highest character and fitness, and partisan
of provincial fiscal. It is therefore clear that a provincial politics should be entirely separated from the
fiscal who is nominated and appointed by the President government." The Governor-General after William Taft
with the consent of the Commission on Appointments, adopted the policy of appointing Filipinos in the
as was petitioner Lacson, is, under section 671 ( b) government regardless of their party affiliation. As the
above-quoted, included in the unclassified service of result of these "the personnel of the Civil Service had
the Civil Service. gradually come to be one of which the people of the
United States could feel justly proud.
The next question arises as to whether the President
even with the concurrence or consent of the Necessity for Constitutional Provisions. — The inclusion
Commission on Appointments may remove a provincial in the constitution of provisions regarding the "merit
fiscal without cause. The Constitution itself denies said system" is a necessity of modern times. As its
right. Article XII, section 4 of said instrument provides establishment secures good government, the citizens
that "no officer or employee in the civil service shall be have a right to expect its guarantee as a permanent
removed or suspended except for cause as provided by institution. . . . . (Ibid. p. 887.)
law." This constitutional provision is reproduced word
for word in the in the paragraph of sec. 694 of the Rev. Separations, Suspensions, Demotion, and Transfers . —
Adm. Code, as amended by Commonwealth Act No. The "merit system" will be ineffective if no safeguards
177, section 22. are placed around the separation and removal of public
employees. The Committee's report requires that
In order to better appreciate the meaning of this removals shall be made only for "causes and in the
constitutional provision as well as the purpose behind it, manner provided by law." This means that there should
it is necessary to delve, though ever so lightly into the be bona fide reasons and action may be taken only
framing of this basic instrument. The Committee on after the employee shall have been given a fair hearing.
Civil Service of the Constitutional Convention which This affords to public employees reasonable security of
drafted the Constitution in its report and in advocating tenure. (Ibid. p. 890.)
the merit system in connection with a civil service
system among other things stated the following: It is contended on of the respondent that the power of
removal is inherent in the power to appoint and that
The adoption of the "merit system" in government consequently, the President had the right to remove the
service has secured efficiency and social justice. It petitioner as provincial fiscal of Negros Oriental and
eliminates the political factor in the selection of civil transfer him to Tarlac. Ordinarily, where there is no
employees which is the first essential to an efficient constitutional limitation the contention of the respondent
personnel system. It insures equality of opportunity to would be tenable; but where as in the Philippines and
all deserving applicants desirous of a career in the as already stated the Constitution forbids the removal of
public service. It advocates a new concept of the public a civil service official or employee like the petitioner
office as a career open to all and not the exclusive except for cause as provided by law, said right of the
patrimony of any party or faction to be doled out as a Chief Executive is qualified and limited. That
reward for party service. (Arnego's Framing of the constitutional prohibition is a limitation to the inherent
Constitution, Vol. II, p. 886.) power of the Executive to remove those civil service
officials whom he appoints. This is the reason why we
The "merit system" was adopted only after the nations find the American cases cited in support of
of the world took cognizance of its merits. Political respondent's theory to be inapplicable. The prohibition
patronage in the government service was sanctioned in against removal except for cause contained in our
1789 by the constitutional right of the President of the Constitution has no counterpart in the Federal
United States to act alone in the matter of removals. Constitution of the United States.
From the time of Andrew Jackson, the principle of the
"To the victor belong the spoils" dominated the Federal Again, it is contended that the provincial fiscal is not
Government. The system undermined moral values and appointed for a fixed term and that there is no tenure of
destroyed administrative efficiency. . . . . (Ibid, p. 886.) office attached to the post. This contention is without
merit. As we have already stated, a provincial fiscal as
Since the establishment of the American Regime in the a civil service official may not be removed from office
Philippines we have enjoyed the benefits of the "merit even by the President who appointed him, and even
system." The Schurman Commission advocated in its with the consent of the Commission on Appointments,

JDSPECA | Cases | Rule 66 | 10

except for cause. Considering this security and and reduced when applied in this jurisdiction. It may
protection accorded a provincial fiscal from arbitrary only apply in case of executive officers appointed by the
and illegal removal from office, and considering the President and not belonging to the Civil Service as
provisions of section 1673 of the Administrative Code established by the Constitution. (Ibid. pp. 350-351.).
which among other things provides, that "after
December 31, 1932 any city fiscal or assistant city fiscal It is also contended by the respondent that neither the
of Manila, provincial fiscal  or deputy provincial fiscal Constitution nor the laws passed by the Legislature
over 65 years of age shall vacate his office, the logical mention or enumerate the cause or causes for which a
inference is that a provincial fiscal duly appointed, until civil service official may be removed from office . We
he reaches the age of 65 has the right to continue in find this claim untenable. Section 686 of the Revised
office unless sooner removed for cause. In other words, Administrative Code, as amended by Commonwealth
he enjoys tenure of office, which is duly protected by Act No. 177, section 18 provides that falsification by a
statute and by the Constitution. civil service official of his daily time record shall render
him liable to summary removal and subject him to
The last part of the report of the Committee on Civil prosecution as provided by law. A like provision for
Service of the Constitutional Convention which we have removal and prosecution is found in section 687 of the
reproduced mentions this tenure of office in its last same Code, as amended by Commonwealth Act 177,
sentence, — "This affords public employees reasonable section 19 which deals with political activity and
security or tenure." Speaking of tenure of office of contribution to political fund by civil service employees.
members of the civil service in the Philippines, Then we have Rule XIII, section 6 of the Civil Service
Professor Sinco in his book on Philippine Political Law Rules providing thus:
has the following to say:
6. Discourtesy to private individuals or to Government
Security of Tenure. officers or employees, drunkenness, gambling,
dishonesty, repeated or flagrant violation or neglect of
Nothing can be more demoralizing to a group of civil duty, notoriously disgraceful or immoral conduct,
servants than the fear that they might be removed from physical incapacity due to immoral or vicious habits,
their posts any time at the pleasure of their superiors. It incompetency, inefficiency, borrowing money by
goes without saying that a demoralized force is an superior officers from subordinates or lending money by
inefficient form Security of tenure is necessary in order subordinate to superior officers, lending money at
to obtain efficiency in the civil service. For this purpose exhorbitant rates of interest, willful failure to pay just
the Constitution provides that "no officer or employee in debts, contracting loans of money or other property
the Civil Service shall be removed or suspended except from merchants or other persons with whom the bureau
for cause as provided by law." (Philippine Political Law of the borrower is in business relations, pecuniary
by Sinco, p. 350.) embarrassment arising from reprehensible conduct, the
pursuits of private business, vocation, or profession
In our discussion of the functions of the President, it without permission in writing from the chief of the
was there shown that the President's power of removal bureau or office in which employed and of the
which is implied from his power of appointment, is very Governor-General (now the President)or proper head of
comprehensive and almost unlimited when it affects Department, disreputable or dishonest conduct
officers holding purely executive positions. This class of committed prior to entering the service, insubordination,
officers, under the rule laid down in the Meyers case, pernicious political activity, offensive political
may be removed by the President at practically any partisanship or conduct prejudicial to the best interest of
time and for any cause. No statutory check, such as a the service, or the willful violation by any person in the
requirement that his order of removal should be subject Philippine civil service of any of the provisions of the
to the previous consent of the senate or the Revised Civil Service Act or rules, may be considered
Commission on Appointments before it could be reasons demanding proceedings to remove for cause,
effective, may be validly placed upon his right to to reduce in class or grade, or to inflict other
exercise this power. But the provision of the punishment as provided by law in the discretion of the
Constitution of the Philippines, which has no Governor-General (now the President) or proper head
counterpart in the Constitution of the United States, of Department. No chief of a bureau or office shall
makes the tenure of officers and employees in the Civil knowingly continue in the public service any
Service secure even against the President's power of subordinate officer or employee who is inefficient or
removal  and even if the officers should hold purely who is guilty of any of the above-named derelictions,
executive offices. The result is that the scope of the rule without submitting the facts through the Director to the
established in the Meyers case is considerably modified

JDSPECA | Cases | Rule 66 | 11

Governor-General (now the President) or proper head thereafter found guilty so as to authorize or warrant
of Department. removal from office.

The law and civil service rules above referred to clearly In view of the foregoing, we are constrained to find and
provide the causes or some of the causes for removal to hold that the transfer of Lacson to Tarlac by his
of civil service officials; and they answer the contention nomination to the post of provincial fiscal of that
of the respondent on this point. province was equivalent to and meant his removal as
provincial fiscal of Negros Oriental; that said REMOVAL
Section 64 of the Revised Administrative Code, WAS ILLEGAL and unlawful for lack of valid cause as
providing for the particular powers and duties of the provided by law and the Constitution; that the
Governor-General, now the President of the Republic, confirmation of the nomination by the Commission on
in part reads as follows: Appointments did not and could not validate the
removal, since the Constitution is equally binding on the
xxx     xxx     xxx Legislature; that a provincial fiscal is a civil service
official or employee whose tenure of office is protected
(b) To remove officials from office conformably to law by the Constitution; and that Antonio Lacson could not
and to declare vacant the offices held by such removed
be compelled to accept his appointment as provincial
officials. For disloyalty  to the United States (now the fiscal of Tarlac; that having declined said appointment,
Philippines), the Governor-General (now the President)
he continued as provincial fiscal of Negros Oriental; that
may at any time remove a person from any position of inasmuch as he neither left, abandoned nor resigned
trust or authority under the Government of the
from his post as provincial fiscal of Negros Oriental,
Philippine Islands. there was no vacancy in said post to which the
respondent could be legally appointed; and that
(c) To order, when in his opinion the good of the public
consequently, the appointment of the respondent was
service so requires, an investigation or any action or the
invalid.
conduct of any person in the Government service, and
in connection therewith to designate the official, In this connection we may point out that the
committee, or person by whom such investigation shall
Constitution having clearly limited and qualified the
be conducted. Presidential power of removal in order to protect civil
service officials and employees, secure to them a
xxx     xxx     xxx
reasonable tenure of office and thus give the country
Section 694 of the Administrative Code as amended by the benefit of an efficient civil service based on the
Commonwealth Act No. 177, section 22, reads as follows: merit system, this Court could do no less than give
effect to the plain intent and spirit of the basic law,
Sec. 694. Removal or suspension. — No officer or employee in specially when it is supplemented and given due course
the civil service shall be removed or suspended except for by statutes, rules and regulations. To hold that civil
cause as provided by law.
service officials hold their office at the will of the
The President of the Philippines may suspend any chief or appointing power subject to removal or forced transfer
assistant chief of a bureau or office, and in the absence of at any time, would demoralize and undermine and
special provision, any other officer appointed by him, pending an eventually destroy the whole Civil Service System and
investigation of charges against such officer or pending an structure. The country would then go back to the days
investigation of his bureau or office. With the approval of the of the old Jacksonian Spoils System under which a
head of department, the chief of a bureau or office may likewise
victorious Chief Executive, after the elections could if so
suspend any subordinate or employee in his bureau or under his
authority pending an investigation, if the charge against such minded, sweep out of office, civil service employees
subordinate or employee involves dishonesty, oppression, or differing in political color or affiliation from him, and
grave misconduct or neglect in the performance of duty. sweep in his political followers and adherents,
especially those who have given him help, political or
From the sections above-quoted, the inference is otherwise. A Chief Executive running for re-election
inevitable that before a civil service official or employee may even do this before election time not only to
can be removed, there must first be an investigation at embarrass and eliminate his political enemies from
which he must be given a fair hearing and an office but also to put his followers in power so that with
opportunity to defend himself. In the case of petitioner their official influence they could the better help him and
Lacson, the record fails to show, neither is there any his party in the elections. As may be gathered from the
claim that he has been charged with any violation of law report of the Committee of the Constitutional
or civil service regulation, much leas investigated and Convention which we have reproduced at the beginning
of this opinion, the framers of our Constitution, at least

JDSPECA | Cases | Rule 66 | 12

the Civil Service Committee thereof, condemned said In conclusion, we find and declare the Lacson to be the
spoils system and purposely and deliberately inserted provincial fiscal of Negros Oriental, and the Romero not
the constitutional prohibition against removal except for being entitled to said post, is hereby ordered to
cause, which now forms the basis of this decision. surrender to the petitioner all the records or papers
appertaining to said office that may have come into his
There are hundreds, yea, thousands of young, possession. The respondent provincial auditor and
ambitious people who enter the Civil Service not provincial treasurer, are hereby ordered to pay to the
temporarily or as a makeshift, but to make a career out herein petitioner his salary from June 16, 1949, and as
of it. They give the best years of their lives to the long as said petitioner continues to be the legal
service in the hope and expectation that with faithful incumbent to the office in question. Considering that the
service, loyalty and some talent, they may eventually respondent appears to have acted in good faith and
attain the upper reaches and levels of official hierarchy. relied upon his nomination by the President and the
confirmation thereof by the Commission on
To permit circumvention of the constitutional prohibition Appointments, as well as the position taken by the
in question by allowing removal from office without Solicitor-General, who sustained his appointment, we
lawful cause, in the form or guise of transfers from one make no pronouncement as to costs.
office to another, or from one province to another,
without the consent of the transferee, would blast the Acosta v. Flor, 5 Phil 18 (1905) 
hopes of these young civil service officials and career
men and women, destroy their security and tenure of G.R. No. 2122           September 13, 1905
office and make for a subservient, discontented and
inefficient civil service force that sways with every PEDRO T. ACOSTA, plaintiff-appellant,
political wind that blows and plays up to whatever vs. DAVID FLOR, defendant-appellee.
political party is in the saddle. That would be far from
what the framers of our Constitution contemplated and ACTION TO REMOVE A PUBLIC OFFICER.—A
desired. Neither would that be our concept of a free and private person can not maintain an action for the
efficient Government force, possessed of self-respect removal of a public officer unless he alleges that he is
and reasonable ambition. entitled to the same office. (Secs. 197 to 216, Code of Civil
Procedure.)
Incidentally, it happens that the petitioner is one of
those we had in mind as making a career of the When such an allegation is made but not proven, the
Government service. He claims and it is not denied by court is justified in dismissing the case without inquiring
the respondent, that twenty years ago he entered the into the right of the defendant to retain the office.
service of the Government as register of deeds of
Negros Oriental, then was promoted to the post of MAPA, J.:
fiscal, first of the Province of Palawan, then of Surigao,
later of Antique and lastly of Negros Oriental in 1946. It is alleged in the complaint that at the municipal
He does not want to accept the transfer to the Province elections held on the 1st day of December, 1903, in the
of Tarlac. His only alternative would be to resign, town of Laoag, Province of Ilocos Norte, the plaintiff
sacrifice his twenty years of continuous, faithful service and the defendant were candidates for the office of
and his career, and perchance his hope that some day, municipal president of the said town; that as a result of
he might yet be promoted to the judiciary. Not a very the said election the Acosta was elected to the said
bright prospect or picture, not only to him but to other office by a majority of 100 votes, and that
civil service officials in like circumstance. notwithstanding this fact the Flor has usurped said
office and unlawfully held the same since the Acosta
But in justice to the President and the Commission on was the person entitled to the exercise of said office.
Appointments, let it be stated once again that it would The complaint further sets out other acts in regard to
seem that the transfer of the petitioner to Tarlac was illegalities alleged to have been committed during the
not meant and intended as a punishment, a disciplinary election. The prayer of the complaint is to the effect that
measure or demotion. It was really a promotion, at least judgment be entered against the Flor, excluding him
at the time the appointment was made. Only, that later, from the exercise of such office and that the plaintiff be
due to a change in the category of Oriental Negros as a declared to be entitled to the same and that he be given
province, the transfer was no longer a promotion in possession thereof, and for such other and further relief
salary. And yet the respondent and the Solicitor as the facts in the case would warrant in favor of the
General insisted in the transfer despite the refusal of plaintiff.
the petitioner to accept his new appointment.

JDSPECA | Cases | Rule 66 | 13

The case having proceeded to trial, Acosta introduced exercise of said office on account of illegalities alleged
various witnesses, all and each of whom testified to to have been committed in the elections.
facts which, if true, would more or less gravely affect
the legality of the election. Not a single witness, The right to maintain such an action is especially and
however, confirmed the allegations contained in the expressly governed by the provisions of sections 197 to
complaint, to the effect that the plaintiff had obtained a 216 of the Code of Civil Procedure.
majority of 100 votes at the said election, nor can it be
inferred from the evidence introduced by the plaintiff The code, after enumerating in sections 197 and 198
that he, as a result of the said election, or for any other the cases in which such an action may be brought and
reason, was entitled to the office of municipal president the persons against whom they may be brought, goes
of Laoag, now held by Flor. on to determine with careful distinction those who have
the right to maintain such action.
In view of the evidence introduced at the trial by Acosta,
and before the defendant had presented his, the court, Section 199 provides that "the Attorney-General of the
on the latter's motion, acquitted the defendant, Islands, or the fiscal of any province, when directed by
imposing the costs upon the plaintiff. The court based the Chief Executive of the Islands, must commence any
its action upon the following grounds: such action; and when upon the complaint or otherwise
he has good reason to believe that any case specified
(1) That Acosta could not maintain the action brought in the two preceding sections can be established by
by him because he had failed to establish his alleged proof, he must commence such action."
right to the exercise of the office in question; and
Section 200 provides that "the Attorney-General of the
(2) that there was no necessity to inquire into the right Islands or the fiscal for a province, may, at his own
of the defendant to hold the said office for the reason instance, bring such an action, or he may, on leave of
that this question had already been determined by the the court in which the action is to be commenced, or a
provincial board after a consideration of the various judge thereof in vacation, bring the action upon the
protests presented to it in regard to irregularities relation of and at the request of another person; but, if
committed during the last election held at Laoag for the the action is brought at the request of and upon the
office of municipal president and other municipal relation of another person, the officer bringing it may
officials, and for the further reason that the presumption require an indemnity for expenses and costs of the
is that a person holding a public office was duly action, to be given to him by the party at whose request
appointed or elected thereto. and upon whose relation the same is brought, before
commencing it."
Acosta excepted to his ruling of the court, moved for a
new trial, and thereafter brought the case to this court Finally, section 201, under the heading "An individual
for review. An examination of the evidence of record may commence such action," provides as follows: "A
supports the finding of the court below to the effect that person claiming to be entitled to a public office,
the plaintiff has failed to prove in any way, shape, or unlawfully held and exercised by another, may bring an
form that he was entitled to the office in question, as action therefor."
alleged by him in his complaint. There is no dispute
upon this question. The appellant, himself, when the If the legislator had intended to give to all citizens alike
motion of the defendant to dismiss was argued, and the right to maintain an action for usurpation of public
from the decision of which he appealed to this court, office, he would have plainly said so in order to avoid
clearly admitted that he had failed to establish his right doubt on a subject of such far-reaching importance. A
to the exercise of the office in question. (Page 17 of the simple provision would have sufficed for this purpose.
bill of exceptions.) And on page 52 of his brief, he also Far from it, the legislator has on the contrary especially
assumes that he had been unable to establish  his and specifically provided in sections 199, 200, and 201
alleged right to the office in question. who must and who may bring such actions; and it is
very clear that it was his intention to give such right to
The question that we have to decide, therefore, is those expressly mentioned in the above-cited sections
whether, notwithstanding what has already been said, and to no other, following the well-known rule of
and notwithstanding the fact that the plaintiff has failed law "inclusio unius est exclusio alterius."  It has been
to show that he had any right to the office of municipal noticed that the above referred to three sections only
president of Laoag, he can maintain an action such as mention the Attorney-General, the provincial fiscal, and
this for the purpose of excluding the defendant from the the individual claiming to be entitled to the
office unlawfully held and exercised by another. It is to

JDSPECA | Cases | Rule 66 | 14

be inferred from this last provision that the individual he relies upon the provisions of section 202 of the Code
who does not claim to have such a right can not bring of Civil Procedure.
an action for usurpation of public office.
This section provides as follows: "When the action is
This inference is supported by the provisions of section against a person for usurping an office, the complaint
202 which says that when the action is against a person shall set forth the name of the person who claims to be
for usurping an office, the complaint shall set forth the entitled thereto, with an averment of his right to the
name of the person who claims to be entitled thereto, same; and that the defendant is unlawfully in
with an averment of his right to the same . Why should possession of the same; and judgment may be
this be required as an essential requisite if it were not rendered upon the right of the defendant, and also
necessary that the individual bringing the action should upon the right of the person so averred to be entitled, or
claim the right to exercise the office in question? only upon the right of the defendant, as justice
requires."
Our opinion is that the law has reserved to the Attorney-
General and to the provincial fiscals, as the case may From the words above italicized the appellant infers that
be, the right to bring such action, an in but one case the court below should have first passed upon the right
does the law authorize an individual to bring such an of the defendant and afterwards upon the right of the
action, to wit, when that person claims to have the right plaintiff. In our opinion this should be done at the same
to the exercise of the office unlawfully held and time and in the same judgment. It is immaterial what
exercised by another. Aside from this case an individual method the court may follow in the statement and
can not maintain such action. The law, in our opinion, determination of the questions in the rendition of his
does not allow of any other construction. If an judgment because even though the court may pass
individual, whether or not he has the right to the office upon the right of the plaintiff first, and the right of the
alleged to have been usurped by another were to be defendant afterwards, or vice versa, this procedure
permitted to maintain such an action, it would serve no would not vitiate the judgment, provided the court does
purpose and section 201 would be evidently not fail to state therein what the rights of the contending
superfluous. It would be a useless and redundant parties to the office are. But all of this, of course,
provision of the code. presupposes that the action has been properly brought
and duly prosecuted to a judgment. This, at the same
As a consequence of what has been said no individual time, presupposes that the plaintiff had a right to
can bring a civil action relating to the usurpation of a maintain his action upon the evidence submitted by him
public office without averring that he has a right to the at the trial. It is impossible to prosecute a suit without a
same; and at any stage of the proceedings, if it be cause of action. Therefore, whenever before judgment
shown that such individual has no such right, the action it is conclusively proven that the plaintiff has no right to
may be dismissed because there is no legal ground maintain the action since he has not the essential
upon which it may proceed when the fundamental basis conditions required by law in order to bring and
of such action is destroyed as is the case here. This is maintain such action, his complaint should be
what actually happened in this case. After all of the dismissed and it becomes unnecessary to pass upon
evidence presented by the plaintiff had been the right of the defendant who has a perfect right to the
introduced, it was found, and he himself so admitted undisturbed possession of his office, unless action is
that he had failed to establish in any way, shape, or brought by a person having a right to maintain the same
form that he had any right to the office of municipal under the law.
president of the town of Laoag as he had alleged in his
complaint without foundation for such allegation. It may be said that under section 202 the court may
Consequently the judge very properly acquitted the only pass upon the right of the defendant when the
defendant of the complaint. justice of the case so demands. This is true, but this
only refers to cases where the action is brought by the
The appellant contends that the court below should Attorney-General or by the provincial fiscal, as the case
have first inquired into the right of the defendant to the may be. In such cases it is not necessary that there be
office in question and that no other question can be a person claiming to be entitled to the office alleged to
raised or investigated until this point has been have been usurped, because although there be no such
determined, and alleges that the question of the right of person, as in the case of a vacant office, for instance,
the plaintiff to the said office does not arise until it has the fiscal could and even should bring such action
been determined that the defendant is not entitled to against the person usurping the office in accordance
the exercise of such office. In support of his contention with the provisions of sections 200 and 199,
respectively, as the case may be. The manner in which

JDSPECA | Cases | Rule 66 | 15

judgment should be rendered according to section 202 The rule in Agcaoili vs. Saguitan, 48 Phil. 676, has
perfectly meets the various cases provided for in the already been abandoned.—The last was expressly
three preceding sections; and it becomes the duty of abandoned in Torres v. Quintos, 88 Phil. 436, 439
the court to pass upon the rights of the defendants only (1951), in the following tenor: “x x x We denied said
whenever it is not an essential requisite for the due supplemental action in a minute resolution the effect of
prosecution of the action that there be a person which is of course to reject the theory that the pendency
claiming to be entitled to the office thus usurped, of an administrative remedy suspends the period within
something which only happens where the Attorney- which a petition for quo warranto should be filed.” “The
General or the fiscal of any province brings the action reason is obvious. While it may be desirable that
against the usurper. administrative remedies be first resorted to, no one is
compelled or bound to do so; and as said remedies
As a result of the foregoing, we can not here pass upon neither are prerequisite to nor bar the institution of quo
the validity or nullity of the election of the defendant, for warranto proceedings, it follows that he who claims the
the reason, among others which it is not necessary to right to hold a public office allegedly usurped by another
state here, that the defendant has no right to maintain and who desires to seek redress in the courts, should
such an action as this. file the proper judicial action within the reglementary
period.
The order of the court below appealed from, is hereby
affirmed. After the expiration of twenty days let Same; Same; Same; Factors that may be considered in
judgment be entered in accordance herewith and let the promotions.—Even if viewed only as a matter of equity,
case be remanded to the court from whence it came for we cannot disregard, as if they were totally irrelevant,
further proceedings in accordance with the law. So the facts that appellee was at the time of the issuance
ordered. 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
Garcia v. Perez, 99 SCRA 628 (1980) 
worked therein, although her item is that of a senior
clerk of the same division, thereby giving appellee
G.R. No. L-28184 September 11, 1980
higher potentiality for, if not actually greater,
PURIFICACION V. GARCIA, petitioner-appellant, competence for the duties and responsibilities of the
vs. ANGELO PEREZ, respondent-appellee. position in question.

Quo Warranto; Civil Service; Courts; In a quo warranto Same; Same; Same; Filing of a later protest in the
proceeding involving title to a public office, the appointment of another employee to another position
petitioner must show that he is entitled thereto not may be deemed an abandonment of petition for quo
merely that she has a preferential right to be appointed warranto.—Likewise, three days after filing the instant
to the office in question.—Nothing is better settled than petition, appellant protested with the Commissioner of
that a petitioner in a quo warranto proceeding to try title Civil Service the appointment of one Mrs. Virginia
to a public office, must be able to show that he is Soriano to the position of cash and payroll clerk, the
entitled to said office, Absent such an element, the position vacated by appellee, praying that she
petition must be dismissed. This is a principle that goes (appellant) be appointed to said position. This theory of
back to Acosta vs. Flor, a 1905 decision. There, the abandonment, as advanced by appellee and raised in
doctrine has been laid down that: “No individual can appellee’s Motion to Dismiss, was not refuted by
bring a civil action relating to usurpation of a public appellant as she could have done by filing a reply brief
office without averring that he has a right to the same; which she did not. Undeniably, there is obvious validity
and at any stage of the proceedings, if it be shown that in this contention, at least insofar as it tends to show
such individual has no right, the action may be appellant s own conviction in the weakness of her claim
dismissed because there is no legal ground upon which to be entitled to the position in dispute, which
it may proceed when the fundamental basis of such constitutes the real and actual foundation of the action
action is destroyed.” of quo warranto which she has instituted.

Same; Same; Same; The pendency of an DE CASTRO, J.:

administrative remedy does not suspend the period
Purificacion V. Garcia appeals on pure questions of
within which to file the petition for quo warranto which
law, 1 from a decision dated 29 June 1967 of the CFI of
commences front the appointment of the respondent.
Manila, Branch XXII, in Civil Case No. 67679

JDSPECA | Cases | Rule 66 | 16

entitled "Purificacion V. Garcia, Petitioner, versus above-mentioned positions belong, the degree of
Angelo Perez, Respondent",  which dismissed the relationship between these two positions and the
petition for quo warranto instituted by Garcia similarity in the nature of the duties inherent in them."
questioning the authority of Perez to occupy and
discharge the duties of the position of Senior Clerk in On August 8, 1966, the Commissioner of Civil Service
the Fiscal Management and Budget Division, Court of approved the appointment of Perez as Senior Clerk
Appeals, Identified as Item No. 104, Page No. 2473, with compensation at the rate of P4,200 per annum.
Republic Act No, 4164 for FY 1964-65.
Upon being informed of the approval of respondent's
The antecedent facts which led to this suit are set forth appointment, the Garcia filed an MR of the decision of
in the decision of the court a quo, 2 thus: the Commissioner of Civil Service denying her protest.
On Oct 7, 1966, Garcia’s MR was denied by the
In September 1964, the position of Senior Clerk in the Commissioner of Civil Service.
Fiscal Management and Budget Division of the Court of
Appeals with an authorized s of P4,800 per annum, To the position of Cash and Payroll Clerk vacated by
became vacant. The petitioner, Garcia, who was then the respondent, the Presiding Justice of the Court of
occupying another position of Senior Clerk in the same Appeals appointed Virginia Soriano thereto. On
division but with compensation at the rate of P3,400 per November 23, 1966, Garcia sent to the Commissioner
annum, filed with the Presiding Justice of the Court of of Civil Service her protest against said appointment on
Appeals a written application for the vacant position the ground that it violated the Civil Service Rules on
stating therein her qualifications. Promotion, with the statement that the formal protest
would be sent later.
On September 12, 1964, upon the recommendation of
the Clerk of Court of Appeals, the Presiding Justice of On November 25, 1966, the Garcia commenced the
said Court, appointed respondent Perez to the vacant present action but three days later, or on Nov. 28, 1966,
position, with compensation at the rate of P4,200 per she went her formal protest against the appointment of
annum, effective on September 14, 1964. At that time, Mrs. Soriano, with a prayer that it be disapproved and
the respondent was holding the position of Cash and to cause the appointment of the petitioner to said
Payroll Clerk in the same division, with compensation at position.
the rate of P3,960 per annum.
The court a quo dismissed the complaint on the ground
On September 21, 1964, Garcia filed with the CSC, a that: "A careful reading of the plaintiff's complaint and
protest against the appointment of Perez on the ground the stipulation of facts submitted by the parties disclose
that she was next in rank, better qualified and entitled to that the petitioner does not claim to be entitled to the
preferential appointment to the position. The CSC position but she merely asserted a preferential right' to
indorsed the petitioner's protest to the Court of Appeals be appointed thereto. Considering that she has NOT
for comment. In a second endorsement, the Presiding BEEN APPOINTED to the position in question, she
Justice of the CA, recommended approval of the CANNOT, therefore, BE PLACED and MADE TO
appointment of the Perez. In a separate communication OCCUPY IT. Under the situation, Garcia has no cause
to the Commissioner of Civil Service, the Chief of the of action against the respondent." 3 The court a quo
Fiscal Management and Budget Division of the Court of further noted that: "Another circumstance which
Appeal stated that the recommendation for the approval militates against the present action is that it was
of the appointment of the respondent was made "after commenced beyond the period of one year from the
carefully studying the records and efficiency ratings of time the alleged right of the petitioner to hold the office
the ranking employees in said division where the in question arose. The respondent was appointed
vacancy exists" and that while the Garcia occupies an Senior Clerk effective September 14, 1964, and since
item in his division, she never worked therein and "has then, he immediately discharged the duties of the
no knowledge or experience about the nature or kind of position. Considering that the petitioner contends that
work being performed" in said division. The first Deputy the appointment, of the respondent to said position and
Clerk of Court and Administrative Officer of the Court of his exercise. of its functions was unlawful and
Appeals also informed the Commissioner of Civil prejudicial to petitioner's rights, she should have
Service that the position of Cash and Payroll Clerk, was commenced her action (assuming that she has the right
considered next in rank to the position of Senior Clerk to do so) within a period of one year from said
to which the respondent was appointed and this ranking appointment, as she was in effect deprived of a right to
was based in the "hierarchical organization of the Fiscal occupy the position, The complaint in this case was
Department and Budget Division to which the two

JDSPECA | Cases | Rule 66 | 17

filed only on November 25, 1966 and accordingly, it is hand, and there is no cogent reason to change the rule.
already barred." 4 Perforce, the instant appeal may be dismissed, even on
this ground alone.
Hence, this appeal wherein petitioner-appellant has
assigned four (4) errors of the court a quo, 5 thus: Should greater liberality be accorded to appellant by
considering her action as one for mandamus whereby
I. THE LOWER COURT ERRED IN DENYING she would seek the appointing power to be compelled
APPELLANTS' RIGHT TO INSTITUTE THE INSTANT to withdraw the appointment of appellee and issue in its
QUO WARRANTO PETITION. place one for appellant, a procedural obstacle stands
on the way, the appointing power, the Presiding Justice
II. THE LOWER COURT ERRED IN HOLDING THAT of the Court of Appeals, not having been impleaded as
APPELLANT SHOULD HAVE COMMENCED THIS a party. This on the assumption that appellant has a
ACTION WITHIN ONE (1) YEAR FROM THE clear legal right to the contested position, which she
APPOINTMENT OF APPELLEE. has not.
III. THE LOWER COURT ERRED IN NOT DECLARING The observation just made finds relevance to the issue
NULL AND VOID APPELLEE'S APPOINTMENT TO raised in appellant's second assignment of error,
THE CONTESTED POSITION AND IN NOT relative to the fatal consequence of her failure to
DECLARING APPELLANT AS THE EMPLOYEE NEXT institute the present quo  warranto proceedings within
IN RANK TO SAID POSITION AND ELIGIBLE AND the reglementary period of one year from the accrual of
QUALIFIED FOR APPOINTMENT THERETO. the cause of action (Sec. 16, Rule 66, Rules of Court).
In said assignment of error, 9 petitioner-appellant
IV. THE LOWER COURT ERRED IN DISMISSING maintains that the lower court erred in holding that this
APPELLANT'S PETITION, INSTEAD OF GRANTING
action should have been commenced within one (1)
APPELLANT'S PRAYER THEREIN. year from the appointment of appellee and argues that
her cause of action arose only after notice of the denial
The pivotal question thus presented, to which all others
of her motion for reconsideration of the decision of the
are subordinated, is whether the petitioner-appellant
Commissioner of Civil Service on her protest against
has the right to bring a quo warranto proceeding
the appointment of respondent-appellee. Moreover,'
questioning the legality of the appointment of the
she insists that the pendency of the protest in the CSC
respondent Perez.
suspended the running of the one-year period, citing
Nothing is better settled than that a petitioner, in a quo the Supreme Court's ruling on the finality of
warranto proceeding to try title to a public office, must appointment in the case of Grospe v. Sec. of Public
be able to show that he is entitled to said office. Absent Works and Communication, L-11090, January 31,
such an element, the petition must be dismissed. This 1959, 10 the dissenting opinion of Justice Perfecto in the
is a principle that goes back to Acosta v. Flor, 6 a 1905 case of Tumulak v. Egay, 82 Phil. 828 concerning the
decision. There, the doctrine has been laid down that: one-year period, 11 and the ruling in the case
"No individual can bring a civil action relating to of Agcaoile v. Saguitan, 48 Phil. 676. 12
usurpation of a public office without averring that he has
The authorities relied upon by appellant are, however,
a right to the same; and at any stage of the
not in point and do not apply in this case. The first case
proceedings, if it be shown that such individual has no
is one of mandamus — and the case at bar cannot be
right, the action may be dismissed because there is no
considered as one, as already shown — asking for the
legal ground upon which it may proceed when the
reinstatement of an employee who was ordered
fundamental basis of such action is destroyed. " This
dismissed for cause by the Commission on Civil
has been the exacting rule, since then, 7 followed with
Service. The second is a dissenting opinion which is not
stricter firmness in Cuyegkeng v. Cruz, 8 where this
binding, as it is a mere expression of the individual view
Court held that one who does not claim to be entitled to
of the dissenting justice from the conclusion held by the
the office allegedly usurped or unlawfully held or
majority of the court. The last was expressly abandoned
exercised by another, but who "merely asserts a right to
in Torres v. Quintos, 88 Phil. 436, 439 (195 1), in the
be appointed" thereto, cannot question the latter's title
following tenor:
to the same by quo warranto. In other words, one
whose claim is predicated solely upon a more or less ... We denied said supplemental action in a minute
remoted possibility, that he may be the recipient of the
resolution, the effect of which is of course to reject the
appointment, has no cause of action against the office theory that the pendency of an administrative remedy
holder. This is precisely the situation in the case at

JDSPECA | Cases | Rule 66 | 18

suspends the period within which a petition for quo advanced by appellee 14 and raised in appellee's Motion
warranto should be filed. to Dismiss, 15 was not refuted by Garcia, as she could
have done by filing a reply brief which she did not.
The reason is obvious. While it may be desirable that Undeniably, there is obvious validity in this contention,
administrative remedies be first resorted to, no one is at least insofar as it tends to show appellant's own
compelled or bound to do so; and as said remedies conviction in the weakness of her claim to be entitled to
neither are prerequisite to nor bar the institution of quo the position in dispute, which constitutes the real and
warranto proceedings: it follows that he who claims the actual foundation of the action of quo warranto which
right to hold a public office allegedly usurped by another she has instituted.
and who desires to seek redress in the courts, should
file the proper judicial action within the reglementary ACCORDINGLY, the instant petition for quo warranto is
period. Public interest requires that the right of public hereby DISMISSED. No costs.
office should be determined as speedily as
practicable ... SO ORDERED.

This ruling has been reiterated with consistent

strictness in a long line of cases, including Sison v.
Pangramoyen, L-40295, 31 July 1978. 13

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 office on the strength
thereof, and received the salary corresponding to said
position. The petition herein was filed only on 25
November 1966, clearly more than one year after the
pretended right of petitioner-appellant to hold the office
in question arose. This circumstance has close 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.
Suffice it to state that petitioner-appellant has not
overcome the presumption of regularity and legality in
official actions anent the extension of the appointment Cruz v. Ramos, 84 Phil. 226 (1949) 
in question by the Presiding Justice of the Court of
Appeals and the approval thereof, by the Commissioner G.R. No. L-3059             August 2, 1949
of Civil Service. Even if viewed only as a matter of
VICENTE G. CRUZ, AMADO V. HERNANDEZ,
equity, we cannot disregard, as if they were totally
JOSEFINA R. PHODACA, SALVADOR MARINO,
irrelevant, the facts that appellee was at the time of the
ISAURO M. SANTIAGO, and SEGUNDO
issuance of the disputed appointment, receiving a
AGUSTIN, petitioners,
higher salary than appellant; and that he, as cash and
vs.
payroll clerk, had always worked in the division to which
PLACIDO RAMOS, FERNANDO MONLEON, and LUIS
the contested position pertains, while appellant has
VILLACERAN, respondents.
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, QUO WARRANTO; WHEN PETITIONERS DO NOT
CLAIM TO BE ENTITLED TO THE PUBLIC OFFICE.—
competence for the duties and responsibilities of the
position in question. Pursuant to section 6 of Rule 68 of the Rules of Court
the present petition for quo warranto is not authorized
Likewise, three days after filing the instant petition, because the petitioners do not claim to be entitled to
Gacria protested with the Commissioner of Civil Service the public office alleged to be unlawfully held or
the appointment of one Mrs. Soriano to the position of exercised by the respondents.
cash and payroll clerk, the position vacated by
PUBLIC OFFICE OR A FRANCHISE, USURPATION
appellee, praying that she (appellant) be appointed to
said position. This THEORY OF ABANDONMENT, as OF; GOVERNMENT AS THE PROPER PARTY;

JDSPECA | Cases | Rule 66 | 19

EXCEPTION.—A public office or a franchise is created least any two of the respondents increases the number
or granted by law, and its usurpation or unlawful of a majority to constitute a quorum to do business in
exercise is the concern primarily of the Government. the deliberation of the municipal board, thereby
Hence the latter as a rule is the party called upon to depriving any six of the elective members of the board
bring the action for such usurpation or unlawful exercise to do business, inasmuch as the minimum number to
of an office or franchise. The only exception in which constitute a quorum of a 12-member board under
the law permits an individual to bring the action in his Republic Act No. 409 is seven, instead of six.
own name is when he claims to be entitled to the public
office alleged to be usurped or unlawfully held or The respondents in their answer contend (1) that the
exercised by another. petitioners have no legal capacity to bring the present
action for usurpation of public office, inasmuch as the
petitioners do not claim to be entitled to occupy the
OZAETA, J.:
office now held by the respondents, and that an action
This is an original petition of Quo Warranto (1) to for usurpation of office may be brought only by the
declare "that the respondents are illegally usurping, Solicitor General or by a fiscal in the name of the
intruding into, and/or exercising or holding the office of Republic of the Philippines; (2) that the respondents are
Members of the Manila Municipal Board," and (2) oust lawfully holding the office in question, they having been
them from that office. duly appointed thereto by the President of the
Philippines; and (3) that Republic Act No. 409 is
The six petitioners allege that they are members of the constitutional.
Municipal Board of the City of Manila, they having been
elected in the general elections of 1947 together with The exercise of the prerogative writ of Quo Warranto is
Gregorio Garcia, Andres Santamaria, Pedro Arenas, governed by Rule 68 of the Rules of Court. Section 1 of
and Eustaquio Balagtas (who are not parties in this said rule provides that an action for the usurpation of
case) to compose the ten members of the Board, for a office may be brought in the name of the Republic of
term of four years expiring on December 31, 1951, and the Philippines against any person who usurps, intrudes
that as such elected members they have the absolute into, or unlawfully holds or exercises a public office.
and exclusive right to exercise the prerogatives and Section 3 provides that the Solicitor General or a fiscal,
privileges of the office of members of said board; that when directed by the President of the Philippines, or
only one vacancy in the board was created by the when upon complaint or otherwise he has good reason
appointment of Eustaquio Balagtas in March, 1949, as to believe that any case specified in sections 1 and 2
Director of Prisons; that on June 22, 1949, the [the latter referring to actions against corporations] can
President of the Philippines appointed the respondents be established by proof, must commence the action.
Placido Ramos, Fernando Monleon and Luis Villaceran Section 4 provides that the Solicitor General or fiscal
members of the municipal board to fill the vacancy may, with the permission of the court in which the
caused by the appointment of Eustaquio Balagtas as action is to be commenced, bring such an action at the
Director of Prisons and two new additional positions request and upon the relation of another person; but in
created by Republic Act No. 409, known as the Revised such case the officer bringing it may first require an
Charter of the City of Manila; that said Republic Act No. indemnity for the expenses and costs of the action to be
409, which increases the congressional districts of the given to him by the person at whose request and upon
City of Manila from two to four and the membership of whose relation it is brought. And section 6 provides that
the municipal board from ten to twelve, is "a person claiming to be entitled to a public office
unconstitutional because section 5 of Article VI of the usurped or unlawfully held or exercised by another may
Constitution authorizes the Congress to apportion bring an action therefor in his own name."
legislative districts throughout the Philippines by a
The present petition is not authorized by section 6 to
general law and not by piecemeal legislation; that at
because the petitioners DO NOT CLAIM to be entitled
least any two of the respondents are illegally usurping,
to the public office alleged to be unlawfully held or
intruding into, and/or holding or exercising the rights
exercised by the respondents. As a matter of fact the
and privileges and discharging the duties exclusively
petitioners allege that they are elected members of the
pertaining to the petitioners and other members of the
municipal board and that their term of office will not
municipal board elected in the general elections of 1947
expire until December 31, 1951. They do not and
because the creation of the office and the appointment
cannot claim that the respondents have supplanted
of at least any two of the respondents are contrary to
them. Their contention that they and the other elected
section 5, Article VI of the Constitution; and that the
members of the board who are not parties in this case
unconstitutional appointment and qualification of at
"have the absolute and exclusive right to exercise the
JDSPECA | Cases | Rule 66 | 20
prerogatives and privileges and discharge the duties of usurped or unlawfully held or exercised by another.
the office of members of said board." does not bring That, however, is not the present case, as we have
their case within the purview of section 6. Moreover, hereinabove demonstrated.
such contention is untenable because if the elected
councilors had "the absolute and exclusive right" to the It resulting from the foregoing that the petitioners have
membership of the board, then no other person could no cause of action, it is neither necessary nor proper for
become a member of the board even if vacancies the Court to pass upon the constitutionality of Republic
should be created therein by law or by the death or Act No. 409.
resignation of an elected member during the four-year
term of office of the petitioner ;and that is untenable The petition is dismissed, with costs.
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 filled by
other persons, because an elected councilor cannot fill
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 judicial 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 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
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

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