[ G.R. No. L-959. January 09, 1948 ] 79 Phil. 780
EN BANC
[ G.R. No. L-959. January 09, 1948 ]
BENEDICTO AUSTRIA, PETITIONER, VS. JOSE L. AMANTE, RESPONDENT. D E C I S I O N
BENGZON, J.:
Benedicto Austria instituted this quo warranto proceeding to wrest from respondent Jose L. Amante the position of mayor of the municipality of San Pedro, Province of Laguna. He alleged he was peacefully discharging the duties of that office when on the third day of September, 1946, respondent Jose L. Amante unlawfully and forcibly took possession thereof with the assistance of some members of the military police.
Undisputed facts are these:
In the general elections of December 10, 1940, petitioner Benedicto Austria was elected municipal mayor of San Pedro, Laguna, and in the next month he qualified as such.
On November 25, 1941, he was suspended from office by reason of an administrative complaint filed against him.
Due to the outbreak of the Pacific War he could not resume his office after the 30-day period provided by law. No elections for mayor were held in December, 1943.
Upon the arrival of the United States Army of Liberation, the PCAU appointed Antonio Partoza, acting mayor of said municipality.
On October 15, 1946, Partoza resigned. Whereupon Acting Governor Jesus Bautista of Laguna designated petitioner as acting municipal mayor, even as he informed the Secretary of the Interior of the “recall” of herein petitioner, recommending that “proper appointment be extended to him effective October 16, 1945.” On this recommendation no action was ever taken by the Department, because the Rural Progress Administration and several residents of the municipality opposed it and because it was known that at the beginning of the War he was under suspension for reportedly subversive activities.
On February 6, 1946, Benedicto Austria was appointed acting mayor by the President of the Philippines. (Exhibit 2.)
On August 2, 1946, respondent Jose L. Amante was appointed mayor of the municipality, by the President of the Philippines. (Exhibit 1.)
On September 4, 1946, respondent Jose L. Amante assumed office as mayor.
There is some controversy as to the circumstances under which Amante took the post.
According to petitioner’s evidence, in the morning of September 3, 1946, Amante showed to him his (Amante’s) appointment but he declined to quit because he had received no orders from his superior, meaning the Provincial Governor; that Amante went away; that thereafter, the same morning, one Lieutenant Galvez of the Military Police took him from San Pedro to Sta. Cruz, the capital, where he was “detained” for three days; that upon his return Amante was already exercising the powers of the town mayor.
The respondent explained that on September 1, he had a talk with petitioner, showing the latter his appointment Exhibit 1; that petitioner said he could not vacate without orders from the Governor; that he conferred with Lieutenant Galvez in Calamba who, having in turn talked with the Governor by telephone, advised Amante to go to Sta. Cruz and see the Governor; that he went to Sta. Cruz and received from the Governor a letter addressed to herein petitioner, informing him of Amante’s appointment and directing delivery of the office to him; that apparently petitioner avoided service or receipt of the Governor’s letter; that consequently Amante journeyed on September 3 to complain to Lieutenant Galvez again; that the latter detailed one of his sergeants to deliver the Governor’s letter to Austria, which was done that same afternoon; that the next day (September 4) at 8 a. m., Amante proceeded to the municipal building where he found petitioner willing and disposed to vacate; that he assumed office at about 8:30 with the knowledge and consent of said petitioner, who retired to his home thereafter. There is evidence that shortly before twelve Lieutenant Galvez arrived, and, pursuant to orders from Sta. Cruz headquarters took Austria with him to Sta. Cruz. The testimony on these points specially the peaceful transfer of functions is corroborated by the municipal treasurer, apparently a disinterested witness. Anyway, it appears that having complained to the provincial fiscal of the alleged undue intervention of the police officers, Austria inexplicably failed to substantiate them, when required to do so. And this Court is hardly the forum to try such disputed questions of fact.
It is important to observe in this connection that petitioner’s theory was that he was “arrested” on September 3, so that respondent assumed office on September 4, after he was arrested. But according to Exhibit F-4, signed by petitioner himself, he was taken by Lieutenant Galvez only on September 4 under protective custody, by reason of his connection with certain communistic organizations about to disrupt peace and order in the locality.
There are reasons to believe that the coincidence of petitioner’s removal to Sta. Cruz as a precautionary measure is being colored to meet any contention founded on his having yielded the mayoralty of his own volition. But voluntary surrender of the office should be immaterial, specially where action to test the right of the new occupant is instituted without delay.
The pivotal issue is whether petitioner is lawfully entitled to continue discharging the duties and powers of the town executive. Well-known is the principle, in litigations of this nature, that the plaintiff will succeed only when he proves his right to the office.[1]
Undoubtedly, the petitioner can lay no claim to the post in virtue of the 1940 elections. The term of the office to which he was elected, had, under the law, expired in 1943; and we found in Topacio Nueno vs. Angeles (76 Phil., 12), that the Legislature did not intend that elective municipal officials shall hold over after the expiration of their terms.
Neither can he assert title under the “designation” given to him by Acting Governor Jesus Bautista, because obviously the said official did not pretend to make an appointment, inasmuch as he recommended to the Secretary of the Interior that an appointment in favor of herein petitioner be issued, which appointment has never been issued. Anyway, granted the designation was a real appointment independently of any subsequent action by the Department of the Interior, it was not legal, because the provincial board did not consent to it, the approval of said body being necessary under section 16 (a) of Commonwealth Act No. 357, the provision of law which in Nueno vs. Angeles we held to be applicable to identical situations.
Lastly, the appointment of petitioner by the President of the Philippines was merely as Acting Mayor. It is elementary in the law of public officers and in administrative practice that such appointment is merely temporary, good until another permanent appointment is issued, either in favor of the incumbent acting mayor or in favor of another. In the last contingency, as in this case, where the permanent appointment fell to the lot of respondent Jose L. Amante the acting mayor must surrender the office to the lucky appointee.
There is no need of a notice to the “acting” appointee or any form of hearing. Such procedural requirements apply where the officer is removable only for cause. This is not the case. In changing an acting appointee, the appointing power has full discretion, and is not limited to removals “for cause.”
It becomes unnecessary at this time to decide whether the appointments made by the President may be upheld in view of his emergency powers, because both parties do not raise the question, even assume its existence. Neither can petitioner assail the respondent’s appointment by a Presidential agent, because his appointment (petitioner’s) by the Secretary to the President Exhibit 2, being in the same category, would also be invalid, and then he has to fall back on his “designation” by the acting governor of the province, which as hereinbefore indicated fails to support his claim. (Cf. Topacio Nueno vs. Angeles, supra.)
Net result of the foregoing discussion is that claimant has no solid ground upon which he may be ordered reinstated. Wherefore, his petition is denied.
Moran, C.J., Paras, Feria, Hilado, and Padilla, JJ., concur.