[ G.R. No. L-89. February 01, 1946 ] 76 Phil 12
[ G.R. No. L-89. February 01, 1946 ]
JOSE TOPACIO NUENO, MANUEL DE LA FUENTE, EUSTAQUIO C. BALAGTAS, AND DELIA C. DIÑO, PETITIONERS, VS. GERARDO ANGELES, AGATON EVANGELISTA, ANDRES STA. MARIA, VICENTE G. CRUZ, AMADO V. HERNANDEZ AND FELICIDAD MANUEL, RESPONDENTS. DECISION
FERIA, J.:
This is an action of quo warranto instituted by the four petitioners against the six respondents to oust the latter from their offices as members of the Municipal Board of the City of Manila on the ground that the petitioners are entitled to occupy and respondents are illegally holding them.
Jose Topacio Nueno, Manuel de la Fuente, Eustaquio Balagtas and Carmen Planas and six others were elected in the general election held on Dec. 10, 1940, and qualified on Jan. 1, 1941. Subsequently, Jose Topacio Nueno and Carmen Planas resigned to run for seats in the House of Representatives in the national election held on Nov. 14, 1941, but they were not elected. After the election, the President of the Philippine Commonwealth appointed petitioner Nueno to fill the vacancy created by his own resignation, and petitioner Delia 0. Diño to fill the vacancy in the place of Carmen Planas, for the last two belonged to the same political party, “The Young Philippines”.
On Jan. 3, 1942, when the city of Manila was occupied by the Japanese Forces, the Commander-in-Chief of the Imperial Japanese army proclaimed military administration under martial law over all districts occupied by the army, and in the proclamation it was provided that “so far as military administration permits, all the laws now in force in the Commonwealth, as well as executive and judicial institutions shall continue to be effective as in the past, and all public officials shall remain in their present posts and carry on faithfully their duties as before.”
By Order No. 1 of Jan. S3, 1942, of the Commander-in-Chief of the Imperial Japanese army, a central administrative organization or government under the name of Philippine Executive Commission was organized, and Jorge Vargas appointed Chairman thereof, and the latter, in Executive Order No. 4, Sec. 9(b) of Feb. 5, 1942, approved by the said Commander-in-Chief, provided that “the provincial boards and the boards or councils of cities, municipalities and specially organized local governments shall merely serve in an advisory capacity to their respective governor and mayors.” Under the so-called Republic of the Philippines inaugurated on October 14, 1943, no material change was introduced in so far as the City of Manila was concerned.
The regular election which, according to Sec. 4 of Act no. 257 (Election Code), should have been held on the second Tuesday in December 1943 to elect the members of the Municipal Board of the City of Manila who were to assume office on the first of January, 1944, could not be held for the city was still under the Japanese military occupation; and as the special election provided for in Sec. I6(c) of said Act could not also be held after the reoccupation of the Philippines and the restoration of the Commonwealth Government on Feb. 27, 1945, due to physical impossibility, the President of the Commonwealth appointed on July 18, 1945, the six respondents and four of those elected in December, 1940, as members of the Board.
The four petitioners, Jose Topacio Nueno, Manuel de la Fuente, Agustin Balagtas and Delia 0. Diño, instituted this action against the six respondents, Gerardo Angeles, Agaton Evangelista, Andres Santa Maria, Vicente G. Cruz, Amando V. Hernandez and Felicidad Manuel, on the ground that petitioners, having been elected as members of the Municipal Board of Manila in the general election held in December, 1940, for three years, their term of office has not yet expired because they have not served for three years completely due to the Japanese occupation, and besides because they are entitled to hold over or continue in office until their successors are elected and qualified, and therefore respondents’ appointments are null and void.
Attorney Nicolas V. Villaruz appeared to intervene in behalf of the political party “Young Philippines”, and incidentally for the petitioner Delia Diño, and claims that although the latter is not, under the ’ law, entitled to hold over after the expired term of the office of Carmen Planas (who resigned as above stated and in whose place she was appointed by the President), the appointments of the respondents were in contravention of section 16(b) of Act Ho. 357, because no one of the respondents belongs to the Young Philippines, whereas in the former Board there was one belonging to that political party, petitioner Delia Diño; and besides, their appointments, not having been submitted to the Commission on Appointments, became ineffective from September 18, 1945, the day following the adjournment of the second special session of the Congress of the Philippines.
The respondents, represented by the Fiscal of the City of Manila, contend that petitioners have no right to hold the public offices claimed by them, because their term of office had already expired on December 31, 1943, and they are not entitled to hold over; that whether or not they have served completely for three years as members of the Municipal Board of Manila is immaterial, for the term of office must be distinguished from the tenure of the incumbent; that as petitioners have no right to institute the present action, this Court has no jurisdiction to proceed and inquire into the validity of respondents’ appointments; and that the appointments of the respondents are legal and valid under the., emergency powers granted by Act No. 671 of the Congress of the Philippines upon the President of the Commonwealth.
The decision in this case depends upon whether or not, under the law, petitioners are entitled to hold- over as members of the Municipal Board of the City of Manila, notwithstanding the expiration of their term of office on the last day of December of the year 1943.
In view of the conclusion we have reached in this decision, we shall not discuss the sufficiency of the “pleading filed “by the four petitioners who claim to be entitled to hold the offices now held by the six respondents. According to Sec. 7 of Rule 68, an individual who files a complaint of quo warranto must set forth the name of the person who claims to be entitled to the office and that of the defendant who is unlawfully iii possession thereof, and those who claim to be entitled to the same office may be made parties in order to determine their respective rights to the office In the same action. An individual cannot sue and oust two or more persons although the latter are holding illegally their respective offices, unless he entitled to all of them. Although, this question has not been raised by the parties, we may rest our decision on that ground alone and dismiss the action; for if we were to decide this case in favor of the petitioners, we would be at a loss how to determine which of the six respondents should he ousted as holding illegally the four offices or places claimed by the four petitioners. There is nothing in the record showing which of the six respondents occupy the four seats or offices formerly occupied by the four petitioners. The record does not show the respective dates or seniority of the respondents’ appointments. But we want to decide the case on its merits and not on technicalities, so as to avoid any other or further proceedings.
The contention that petitioners are entitled to continue in office because they have not completely served for three years due to the war, is untenable, even assuming that they had not discharged the duties of their office during the Japanese occupation of Manila. For the simple reason that the term of an office must be distinguished from the tenure of the incumbent. The term means the time during which the officer may claim to hold the office as of right, and fixes the interval after which the several incumbents shall succeed one another. The tenure represents the term during which the incumbent actually holds the office. The term of office is not affected by the hold over. The tenure may be shorter than the Term for reasons within, or beyond the power of the incumbent. There is no principle, law or doctrine by which the term of an office may be extended by reason of war.
We shall, therefore, discuss and decide only the question of the respondents’ right to hold over and, consequently, the power of the President to appoint their successors after the “expiration of their term of office.
While there is authority to the contrary, the general trend of decisions of American courts is to adopt the common-law rule of hold over. The rule is, as enunciated in 46 Corpus Juris, 968, that “in the absence of an express or implied constitutional or statutory provision to the contrary, an officer is entitled to hold his office until his successor is appointed or chosen and has qualified.” This enunciation of the rule is substantially the same as that in McQuillin, Municipal Corporations, Vol. II, second ed. Art. 307). The legislative intent not to permit holding over may therefore be express or implied, in legislative acts'.
In many states of the Union, the constitutions and statute expressly provide for the holding over of public officers until their successors are elected or appointed and have qualified. (46 G. J., Par. Ill, p. 969)
Here in the Philippines, in enacting the provisions of the Revised Administrative Code relating to elective provincial officers, members of the Municipal Board of the City of Manila and municipal officers in general, the Philippine Legislature was dealing with the same or similar subject matter, and notwithstanding the trend of American decisions to adopt the common-law rule of hold over, recognized and applied by this court to appointive officers in the case of Tayko v. Capistrano, 52 Phil. 866, our lawmakers have followed the policy and practice of those States that provide expressly in their statutes for holding over of provincial, city and municipal officers, in the following provisions of the Revised Administrative Code, the pertinent part have underscored.
Section 2074 of the Revised Administrative Code (Provincial Law) provided;
“Term of office of elective official.- The term of a provincial officer elected at any general election commencing with the year nineteen hundred and thirty-seven, shall begin on the six-teenth of July following such election and shall end on the fifteenth of the same month three years thereafter; but if a successor be not inducted at the time appointed by law, the incumbent shall hold over until a successor shall be duly qualified.
Section 2177 of the same Code (Municipal Law) read as follows:
“Term of elective officer. The terra of a municipal officer elected at any general election commencing with the year nineteen hundred and thirty-seven, shall begin on the sixteenth of July following such election and shall end on the fifteenth of the same month three years thereafter; but if a successor be not inducted at the time appointed by law, the incumbent shall hold over until a successor shall be duly qualified.””
The original provision of Sec. 2429 (Charter of the City of Manila) which provided “that the Municipal Board shall be the legislative body of the city, and shall consist of ten elective members who shall hold office for four years or until their successors are elected and qualified” was amended by Act No. 2774 so as to read: “The Municipal Board shall be the legislative body of the City, and shall consist of ten elected members who shall hold office for three years. But the suppression of the provision for holding over did not have any effect, since it was then a surplusage, because the second paragraph of section 2440 provided among others the following;
“Election for the members of the Board shall be held on the date of the general trienial election, and elected members shall take office on the sixteenth day of October next following their election, upon qualifying, and shall hold office until their successors are elected and qualified”
From the express provisions above quoted, it clearly appears that it was the intention of the Legislature, independent or irrespective of the ruling of this Court in the above-cited case of Tayko v. Capistrano relating to appointive officers, to provide expressly that the elective (members of the Municipal Board of the City of Manila as well as elective provincial and municipal officers in general, shall hold over after the expiration of their terms until their successors shall be duly qualified. Such provision was enacted to provide against all contingencies which might result from an office becoming for any period of time vacant or without an incumbent.
Subsequently, the above-quoted provisions of sections 2074, 2177, and 2440 (second paragraph), were expressly repealed by Sec. 184 of Commonwealth Act No. 357. Section 4 of said act provides, in lieu of said provisions, that “on the “second Tuesday in December, nineteen hundred and forty, and upon the same day every three years thereafter, a regular selection shall be held to elect the officers who are to occupy all elective provincial, municipal and city offices throughout the Philippines. The officers elected shall assume office on the first day of January next following. This repeal of all provisions for holding over the provincial, city and municipal elective officers by Commonwealth Act No. 257, and the enactment of section 16 thereof which provides for the filling of all vacancies, temporary or otherwise, which might occur during and after the expiration of a term of office, so as to avoid the necessity and even the occasion for holding over, clearly show the manifest intention of Congress to suppress the hold over. The very attorney who appeared for petitioner Delia c. Diño argued in his brief and oral argument that the latter has no right under the law to hold over, but is entitle to be reappointed in accordance with Sec. 16(b) of Act Ho. 357.
The policy announced by the President of the Commonwealth in his message to Congress on June 9, 1945, that “the provincial and municipal officers who were elected in 1940 should, as a general principle, be recalled to their respective positions, thus giving due consideration to the will of the people as expressed, at the polls, and only for strong reasons should they be deprived of their privilege to serve,” quoted in-the dissenting opinion, cannot be invoked in support of the right to hold over. In the first place, because the message has not the force and effect of law and is therefore not a legislative interpretation of the law; and secondly, because if any weight may be given to that policy in the decision of this case, it would work against the alleged right to hold over. If provincial and municipal officers are entitled by law to hold over, they would have the right to continue in office irrespective of any policy which the President may adopt, for the latter cannot deprive them of said right. If the President has to recall and appoint them to their respective original positions pursuant to such policy, it is because they are not entitled to hold over.
Section 16 of Commonwealth Act No. 357 reads as follows:
“Sec. 16. Vacancy in elective provincial or municipal office. — (a) Whenever a temporary vacancy in any elective local office occurs,- the same shall be filled by appointment by the President if it is a provincial office and by the provincial governor, with the consent of the provincial board, if it is a municipal office.
“(b) Whenever in any elective local office a vacancy occurs-as a result of the death, resignation, removal or cessation of the incumbent, the President shall appoint thereto a suitable person belonging to the political party of the officer whom he is to replace, save in the case of a mayor, which shall be filled by the vice-mayor.
“(c) Whenever the election for a local office fails to take place on the date fixed by law, or such election results in a failure to elect, the President shall issue as soon as practicable, a proclamation calling a special election to fill said office.
“(d) When a local officer-elect die before assumption of office, or, having been elected provincial or municipal officer, his election is not confirmed by the President for disloyalty, or such office-elect fails to qualify, for any reason, the President may in his discretion either call a special election or fill the office by appointment.
“(e) In case a special election has been called and held and shall have resulted in a failure to elect, the President shall fill the office by appointment .
“(f) The person appointed or elected to fill a vacancy in an elective provincial or municipal office shall hold the same for the unexpired term of the office.”
The only vacancies which may possibly occur in elective provincial or municipal offices, as well as of the City of Manila, are those provided for in the above-quoted provisions, and in section 2440 (e), applicable only to members of the Municipal Board of the City of Manila, besides those enumerated in said section 16 which are not in conflict therewith, for according to section 2440(d) as amended by Act No. 233, “in so far as they are applicable, all the provisions of the Election Law are made effective as to the members of the Board and to their election to the same extent as if the City of Manila were a province * * *.” And each and every one of said vacancies may be immediately filled in the manner therein provided, and therefore there cannot be any interregnum during which the office may be temporarily without an incumbent as we shall show later on.
In case of sickness or absence, or if for any reason it becomes necessary to maintain a quorum in that Board, as in case of suspension or temporary disability of any member of the Municipal Board of the City of Manila, section 16(a) cannot be applied, because no vacancy; temporary or otherwise is created thereby since the office is not without an incumbent, and because that contingency is covered by section 2439 or the Administrative Code which is specially applicable to members of the Municipal Board of the City of Manila, in accordance with said section, the Governor General (now the President) may make in such case a temporary appointment of a person “who shall possess all the rights and perform all the duties of a member of the Board” until the return to duty of the incumbent. An office is said to be vacant where there is no incumbent elected or appointed to hold it. (46 C. J. 971). “A temporary absence will not result in a vacancy,"(Young vs. Morris, 47 Okl., 743). Temporary “physical and mental disability of the incumbent of an elective office does not create a vacancy,” (46 c. J. 973).
But even assuming that it was also the intention of Congress to apply, though improperly, the word “temporary vacancy” used in Section 16(a) of Act No. 357, to oases of sickness, absence, suspension or any other temporary disability of any member of provincial or municipal boards, it would not exclude the application of said section 16(a) to the proper “temporary vacancy” which may result from the delay in the election or appointment of a successor of the incumbent of the previous term in the cases contemplated in the provisions of subsection(c) and (d) of said section 16. Under these provisions, whenever (1) the election “fails to take place on the date fixed by law as in the case at bar), or (2) results in a failure to elect, or (3) the officer-elect dies before assumption of office, or (4) his election is not confirmed for disloyalty, or (5) he fails to qualify for reason of non-eligibility or other reasons, the successor to fill the vacancy shall be elected in a special election, if the President does not exercise his discretion to fill the vacancy in the last three cases (3), (4) and (5) by appointment. Now, as according to Sec. 17 of the same Act No. 357, the said special election shall be called by the President by proclamation for a date which shall not be earlier than thirty days nor later than ninety days from the date of said proclamation, it is evident that from the first day of January, the beginning of the new term, to the election or appointment and qualification of the successor elected in that special election, or appointed if the special election result in a failure to elect, as provided in subsection (e), there would necessarily be an interregnum or temporary vacancy during which no one actually holds or could hold the office. To meet or provide for such a contingency, said subsection (a) of section 16 empowers the president to appoint a person to fill such temporary vacancy or interregnum, and the persons so appointed shall hold the office until the permanent successor has been elected or appointed to fill the office lor the unexpired term, according to subsection (f) of said section 16 of Commonwealth Act No. 357. Election or appointment of a person to fill a vacancy under subsections (b), (c), (d) and (e) for the unexpired term should not be confused, with the appointment under subsection (a) of a person to fill the temporary-vacancy until the permanent incumbent for the unexpired term has been elected or appointed (subsection [f]).
In addition to all the foregoing, we may add that petitioners Jose Topacio Nueno and Belia C. Dino can not claim the right to hold over as elective officers of the Municipal Board of Manila, because, as above stated, they held the office before the war by appointment under subsection (b) to fill the vacancies caused by resignation of the elective incumbents, one of them the same petitioner Nueno, and to hold the office for the unexpired term in accordance with subsection (f), Sec. 16, of said Commonwealth Act No. 357. And that petitioner Dino’s claim is based on the incorrect assumption that the respondents were appointed under subsection (b) of said Act.
From the foregoing it clearly appears that petitioners are not entitled to hold over, and after the expiration of their term of office on Dec. 31, 1943, the offices of members of the Municipal Board of Manila became-vacant from January 1, 1944, because of failure to hold the regular election on the second Tuesday of December 1943 and the special election, and consequently to elect the would-be incumbents. And during the interregnum or temporary vacancy from January 1, 1944, until the said special election is held and new members elected or, in case of failure to elect, appointed by the President (under Sec. 16 (c) and (d) of Commonwealth Act No. 357) the President had, under section 16 (a) of the same act, the power to appoint the respondents or any other, at his discretion, to fill the said temporary vacancy or vacancies. As the petitioners are not entitlesd to hold-over or continue, after the expiration of their term, in the offices claimed by them and held now by the respondents, they have no right to bring the present action and impugn the validity of the latter’s appointments, according to the provisions of section 6, Rules 68, of the rules of court.
The record does not show whether the respondents were appointed by the president under Sec. 16(a) of Commonwealth ct No. 357, or under the emergency powers granted him by Commonwealth Act No. 671 of the Congress of the Philippines as contended by the City Fiscal, attorney for the respondents. But having arrived at the above conclusion, this court does not deem it necessary to decide whether or not the President had the authority to appoint the respondents by virtue of his emergency powers; and whether or not the respondents’ appointments became ineffective from September 18, 1945, which was the day following the adjournment of the Congress of the Philippines convened after their appointments, because the latter had not been submitted to Congress or -the Commission on Appointments, as claimed by the attorney for respondent Dino.
The action of quo warranto filed by the petitioners is therefore, dismissed, with costs against them. So ordered.
Jaranilla, De Joya, Pablo, Bengzon, and Briones. JJ., concur.