[ G.R. No. L-9669. January 31, 1956 ] 98 Phil. 364
[ G.R. No. L-9669. January 31, 1956 ]
NICANOR G. SALAYSAY, ACTING MUNICIPAL MAYOR OF SAN JUAN DEL MONTE, RIZAL, PETITIONER, VS. HONORABLE FRED RUIZ CASTRO, EXECUTIVE SECRETARY, OFFICE OF THE PRESIDENT OF THE PHILIPPINES, HONORABLE WENCESLAO PASCUAL, PROVINCIAL GOVERNOR OF RIZAL, AND DOCTOR BRAULIO STO. DOMINGO, RESPONDENTS. D E C I S I O N
MONTEMAYOR, J.:
The facts in this case are not disputed. Briefly stated, they are as follows. Engracio E. Santos is the duly elected Municipal Mayor of San Juan del Monte, Rizal, and the petitioner Nicanor G. Salaysay is the duly elected Vice- Mayor. In the month of September, 1955 and for some time prior thereto, Santos was under suspension from his office due to administrative charges filed against him and so petitioner Salaysay acted as Mayor under section 2195 of the Revised Administrative Code providing that in case of temporary disability of the Mayor such as absence, etc., his duties shall be discharged by the Vice-Mayor. On September 8, 1955, while acting as Mayor, Salaysay filed his certificate of candidacy for the same office of Mayor. Interpreting said action of Salaysay in running for the office of Mayor as an automatic resignation from his office of Vice-Mayor under the provisions of section 27 of the Revised Election Code, as a consequence of which he no longer had authority to continue acting as Mayor, the Office of the President of the Philippines on September 12, 1955 designated Braulio Sto. Domingo acting Municipal Vice-Mayor of Sail Juan del Monte, Rizal. On the same date Salaysay was advised by respondent Provincial Governor Wenceslao Pascual of Rizal that in view of his (Salaysay’s) automatic cessation as Vice-Mayor due to his having filed his certificate of candidacy for the office of Mayor, and in view of the appointment of Sto. Domingo, as acting Vice-Mayor by the President of the Philippines, and because he (Pascual) had directed Sto. Domingo to assume the office of Mayor during the suspension of Mayor Santos, he (Salaysay) should turn over the office of Mayor to Sto. Domingo. On September 13, 1955, Salaysay was also advised by Executive Secretary Fred Ruiz Castro to turn over the office of Mayor to Sto. Domingo immediately, otherwise he might be prosecuted for violation of Article 237 of the Revised Penal Code for prolonging performance of duties. Salaysay refused to turn over. the office of Mayor to Sto. Domingo and brought this action of Prohibition with preliminary injunction against Executive Secretary Castro, Governor Pascual’ and Sto. Domingo, to declare invalid, illegal and unauthorized the designation.of Sto. Domingo as acting Vice-Mayor of San Juan del Monte as well as his designation by Governor Pascual to assume the office of Mayor during the suspension of Mayor Santos; to order respondents to desist and refrain from molesting, interfering or in any way preventing petitioner from performing his duties as acting Municipal Mayor and prohibiting Sto. Domingo from performing or attempting to perform any of those powers and duties belonging to petitioner. Acting upon a prayer contained in the petition, we issued a writ of preliminary injunction. Petitioner contends that his ease does not come under section 27 of the Election Code for the reason that when he filed his certificate of candidacy for the office of Mayor, he was actually holding said office. The respondents, however, maintain that the office petitioner was actually holding when he filed his certificate of candidacy for the office of Mayor was that of Vice-Mayor, the one to which he had been duly elected; that he was not actually holding the office of Mayor but merely discharging the duties thereof and was merely acting as Mayor during the temporary disability of the regular incumbent. Elaborating, respondents claim that a Vice-Mayor acting as Mayor merely discharges the duties of the office but does not exercise the powers thereof;. that his tenure is provisional, lasting only during the temporary disability of the regular incumbent. Petitioner counters with the argument that a Vice-Mayor acting as Mayor does not only discharge the duties of the office of Mayor but also exercises the powers thereof; and that while acting as Mayor, he actually holds the office of Mayor for all legal purposes. It is clear that petitioner’s stand is taken from the point of view of his acting as Mayor, and not of his office of Vice-Mayor, while respondents’ position is taken from the point of view of petitioner actually holding the office of Vice-Mayor though incidentally and temporarily discharging the duties of the office of Mayor. We have given the case considerable study and thought because we find no precedents to aid and guide us. The parties have ably adduced pertinent and extensive citations and arguments not only at the original hearing but also at the re-hearing. As to whether a Vice-Mayor acting as Mayor may be regarded as actually holding the office of Mayor, there are plausible arguments and good reasons for either side. We are inclined to agree with petitioner that one acting as Mayor not only discharges the duties of the office but also exercises the powers of said office, and that in one sense and literally, he may legitimately be considered as actually holding the office of Mayor. But there is also force and logic in the argument of respondents that inasmuch as a Vice-Mayor takes over the duties of the Mayor only temporarily and in an acting capacity, he may not be regarded as actually holding the office, because the duly elected Mayor incumbent though actually under temporary disability such as suspension, illness or absence (section 2195, Revised Administrative Code) could and should be considered as retaining his right to the office of Mayor and actually holding the same; otherwise there would be a situation where two officials at the same time would be having a right to the same office and actually holding the same. In view of the possible uncertainty and doubt as to whether or not a Vice-Mayor by acting as Mayor can be regarded as actually holding said office of Mayor, we have to go back and resort to the legislative proceedings had, particularly the discussions and interpellations in-both houses of Congress leading to the enactment of section 27 of the Revised Election Code, with a view to ascertaining the intention of that body. After all, in interpreting a law, the primary consideration is the ascertainment of the intent and the purpose of the legislature promulgating the same.
“Statute law is the will of the legislature; find the object of all judicial interpretation of it is to determine what intention is conveyed, either expressly or By implication, by the language used, so far as it is necessary for determining whether the particular case or state of facts presented to the interpreter falls within it.” (Black, Handbook on the Construction and Interpretation of the Laws, 2nd ed., p. 11.)
HISTORY OR BACKGROUND OF SECTION 27 REVISED ELECTION CODE
Before the enactment of section 27 of the Revised Election Code, the law in force covering the point or question in controversy was section 2, Commonwealth Act No. 666. Its burden was to allow an elective provincial, municipal, or city official such as Mayor, running for the same office to continue in office until the expiration of his term. The legislative intention as we see it was “to favor re-election,of the incumbent by allowing him to continue in his office and use the prerogatives and influence thereof in his campaign for re-election and to avoid a break in or interruption of his incumbency during his current term and provide for continuity thereof with the next term of office if re-elected. But section 2, Commonwealth Act No. 666 had reference only to provincial and municipal officials duly elected to their offices and who were occupying the same by reason of said election at the time that they filed their certificates of candidacy for the same position.’ It did not include officials who hold or occupy elective provincial and municipal offices not by election but by appointment. We quote section 2, Commonwealth Act No. 666:
“Any elective provincial, municipal or city official running for an office other than the one for which he has been lastly elected, shall be considered resigned from his office from the moment of the filing of his certificate of candidacy,”
However, this was exactly the situation facing the Legislature in the year 1947 after the late President Roxas had assumed office as President and before the elections coming up that year. The last national elections for provincial and municipal officials were held in 1940, those elected therein to serve up to December, 1943. Because of the war and the occupation by the Japanese, no elections for provincial and municipal officials could be held in 1943. Those elected in 1940 could not hold-over beyond 1943 after the expiration of their term of office because according to the views of the Executive department as later confirmed by this Court in the case of Topacio Nueno vs. Angeles, 76 Phil., 12, through Commonwealth Act No. 357, Congress had intended to; suppress the doctrine or rule of hold-over. So, those provincial and municipal officials elected in 1940 ceased in 1943 and their offices became vacant, and this was the situation when after liberation, President Osmefia , took over as Chief Executive. He filled these vacant positions by appointment. When President Roxas was elected in 1946 and assumed office in 1947 he replaced many of these Osmefia appointees with his own men. Naturally, his Liberal Party followers wanted to extend to these appointees the same privilege of office retention thereto given by section 2, Commonwealth Act No. 666 to local elective officials. It could not be done because section 2, Commonwealth Act No. 666 had reference only to officials who had been elected. So, it was decided by President Roxas and his party, to amend said section 2, Commonwealth Act No. 666 by substituting the phrase “which he is actually holding”, for the phrase “for which he has been lastly elected” found in section 2 of Commonwealth Act No. 666. The amendment is now found in section 27 of the Revised Election Code which we quote below: “SEC. 27. Candidate holding office.—Any elective provincial municipal, or city official running for an office, other than one which he is actually holding, shall be considered resigned his office from the moment of the filing of his certificate of candidacy.” The purpose of the Legislature in making the amendment, in our opinion, was to give the benefit or privilege of retaining office not only to those who have been elected thereto but also to those who have been appointed; stated differently, to extend the privilege and benefit to the regular incumbents having the right and title to the office either by election or by appointment. There can be no doubt, in our opinion, about this intention. We have carefully examined the proceedings in both Houses of the Legislature. The minority Nacionalista members of Congress bitterly attacked this amendment, realizing that it was partisan legislation intended to favor those officials appointed by President Roxas; but despite their opposition the amendment was passed. „
LEGISLATIVE INTENT
We repeat that the purpose of the Legislature in enacting section 27 of the Revised Election Code was to allow an official to continue occupying an elective provincial, municipal or city office to which he had been appointed or elected, while campaigning for his election as long as he runs for the same office. He may keep said office continuously without any break, through the elections and up to the expiration of the term of the office. By continuing in office, the office holder was allowed and expected to use the prerogatives, authority and influence of his office in his campaign for his election or re-election to the office he was holding. Another intention of the Legislature as we have hitherto adverted to was to provide for continuity of his incumbency so that there would be no interruption or break, which would happen if he were required to resign because of his filing his certificate of candidacy. Bearing this intention of the Legislature in this regard in mind, can it be said that a Vice-Mayor like the petitioner herein, merely acting as Mayor because of the temporary disability of the regular incumbent, comes under the provision and 1 exception of section 27 of the Election Code? The answer must necessarily be in the negative. A Vice-Mayor acts as Mayor only in a temporary, provisional capacity. This tenure is indefinite, uncertain and precarious. He may act for a few days, for a week or a month or even longer. But surely there, ordinarily, is no assurance or expectation that he could continue acting as Mayor, long, indefinitely, through the elections and up to the end of the term of the office because the temporary disability of the regular, incumbent Mayor may end any time and he may resume his duties.
VICE-MAYOR ACTING AS MAYOR, OUTSIDE LEGAL CONTEMPLATION
The case of a Vice-Mayor acting as Mayor could not have been within the contemplation and the intent of the Legislature because as we have already stated, that law- making body or at least the majority thereof intended to give the benefits and the privilege of section 27 to those officials holding their offices by their own right and by a valid title either by election or by appointment, permanently continuously and up to the end of the term of the office, not to an official neither elected nor appointed to that office but merely acting provisionally in said office because of the temporary disability of the regular incumbent. In drafting and enacting section 27, how could the Legislature have possibly had in mind a Vice-Mayor acting as Mayor, and include him in its scope, and accord him the benefits of retaining the office of Mayor and utilizing its authority and influence in his election campaign, when his tenure in the office of Mayor is so uncertain, indefinite and precarious that there may be no opportunity or occasion for him to enjoy said benefits; and how could Congress have contemplated his continuing in the office in which he is acting, when the very idea of continuity is necessarily in conflict and incompatible with the uncertainty, precariousness and temporary character of his tenure in the office of Mayor?
“ACTUALLY HOLDING OFFICE” EQUIVALENT TO “INCUMBENT”
All these doubts about the meaning and application of the phrase “actually holding office” could perhaps have been avoided had the intention of this Legislature been phrased differently. It could perhaps have more happily used the term “incumbent” to refer to those provincial and municipal officials who were holding office either by election or by appointment, and so had a legal title and right thereto. As a matter of fact, this term “incumbent” was actually used by Congressman Laurel in explaining the idea of the committee that drafted this amendment to section 2, Commonwealth Act No. 666, of which committee he was the Chairman. The deliberations of the lower House as quoted by the very counsel for petitioner reads as follows:
“Mr. Roy. What must be the reason, then, Mr. Chairman of the Committee for deleting the words ‘has been lastly elected’? “Mr. Laurel. The idea is to cover the present incumbents of the local offices.” (II Congressional Record 1143.)
In this connection, a happier phraseology of another portion of section 27 could have been used for purposes of precision. For instance, the first part of said section reads thus: “Any elective provincial, municipal or city official running for an office”, and yet as we have already said, the Legislature intended said section to refer to officials who were appointed by President Roxas to fill vacancies in provincial, municipal and city elective offices. In other words, those officials were not really elected or elective officials but they were officials occupying or holding local elective offices by appointment. All this goes to show that we should not and cannot always be bound by the phraseology or literal meaning of a law or statute but at times may interpret, nay, even disregard loose or inaccurate wording in order to arrive at the real meaning and spirit of a statute intended and breathed into it by the law-making body.
MEANING OF PHRASE “RESIGNED FROM HIS OFFICE”
Section 27 of Republic Act No. 180 in providing that a local elective official running for an office other than the one he is actually holding, is considered resigned from his office, must necessarily refer to an office which said official can resign, or from which he could be considered resigned, even against his will. For instance, an incumbent Mayor running for the office of Provincial Governor must be considered as having resigned from his office of Mayor. He must resign voluntarily or be compelled to resign. It has to be an office which is subject to resignation by the one occupying it. Can we say this of a Vice-Mayor, acting as Mayor? Can he or could he resign from the office of Mayor or could he be made to resign therefrom? No. As long as he holds the office of Vice- Mayor to which he has a right and legal title, he, cannot resign or be made to resign from the office of Mayor because the law itself requires that as Vice-Mayor he must act as Mayor during the temporary disability of the regular or incumbent Mayor. If he cannot voluntarily resign the office of Mayor in which he is acting temporarily, or could not be made to resign therefrom, then the provision of section 27 of the Code about resignation, to him, would be useless, futile and a dead letter. In interpreting a law, we should always avoid a construction that would have this result, for it would violate the fundamental rule that every legislative act should be interpreted in order to give force and effect to every provision thereof because the Legislature is not presumed to have done a useless act.
“A statute is a solemn enactment of the state acting through its legislature and it muat be assumed that this process achieve result. It cannot the presumed that the legislature would d futile thing.” (Sutherland, Statutory Construction, Vol. 8, p. 237.)
EXAMPLE
To emphasize and illustrate this inapplicability of section 27 to a Vice-Mayor acting as Mayor, let us consider an example. A Vice-Mayor while acting as Mayor files his certificate of candidacy for the office of Vice-Mayor. In other words, he wants to run for re-election. The Provincial Governor, especially if belonging to a different political party wants to keep him out of the office of Mayor, especially during the electoral campaign, and instead have his party man, the councilor who obtained the highest number of votes in the last elections, act as Mayor (section 2195, Revised Administrative Code). So, he hastens to the Municipal building and enters the Mayor’s office where the Vice-Mayor has installed himself. Using the same argument of herein petitioner, he tells the Vice- Mayor that inasmuch as while acting as Mayor, he was “actually holding” said office of Mayor, and because while thus holding it, he filed his certificate of candidacy for Vice-Mayor which is a different office, he must be considered resigned from; the office of Mayor; and he even asks him to leave the Mayor’s room and office. The Vice- Mayor, a law abiding citizen acquiesces and obeys, he reluctantly, leaves and abandons the office of the Mayor and repairs to his own room as Vice-Mayor. But he has a happy inspiration and remembers the law (section 2195, Revised Administrative Code); he rushes back to the office of the Mayor and tells the Governor and the authorities that he is still the Vice-Mayor because when he filed his certificate of candidacy for Vice-Mayor, he was also actually holding said office, and so did not lose it; that as such Vice-Mayor, he can act and must act as Mayor during the temporary disability of the incumbent, because he cannot resign and no one can make him resign from the office of Mayor; and he defies the Governor to oust him from the office and room of the Mayor. The Governor is helpless for the Vice-Mayor is right, that is, if we apply section 27 of the Election Code to him. This possible, undesirable and anomalous situation is another reason why section 27 may not be applied to the case of a Vice-Mayor acting as Mayor. In the above given example, the Governor might contend that when the Vice-Mayor filed his certificate of candidacy for Mayor, he was actually holding only the office of Mayor and not that of Vice-Mayor and so he lost his office of Vice- Mayor. But that contention of the Governor is untenable. Even counsel for herein petitioner in his memorandum admits that a Vice-Mayor while acting as Mayor, also actually holds his office of Vice-Mayor. And it has to be that way. A Vice-Mayor acting as Mayor does not cease to be Vice-Mayor. In fact, that is his real, principal and basic office or function. Acting as Mayor is only an incident, an accessory. Let him cease holding the office of Vice-Mayor even for an instant, and he automatically, also ceases acting as Mayor. Furthermore, a Vice-Mayor has administrative duties to perform. He is an ex-officio member of the Municipal Council and he is in charge of the barrio or district where the town offices are. located (section 2204, Revised Administrative Code). While acting as Mayor he may not say that he ceases to hold the office of Vice-Mayor and so cannot look after the needs of the residents of his district and present them to the town council.
ANOTHER EXAMPLE
The regular incumbent Mayor files his certificate of candidacy for the same office of Mayor. Then he goes on leave of absence or falla sick and the Vice-Mayor acts in his place, and while thus, acting he also files his certificate of candidacy for the same office of Mayor. Then the Vice- Mayor also goes on leave or falls sick or is suspended,, and because the regular Mayor is still unable to return to office, under section 2195 of the Revised Administrative Code, the councilor who at the last general elections received the highest number of votes, acts as Mayor, and while thus acting he also files his certificate of candidacy for the office of Mayor. The Vice-Mayor also campaigns for the same post of Mayor claiming like the herein petitioner that he did not, lose Ms office of Vice-Mayor because he filed his certificate of candidacy while acting as Mayor and thus was actually holding the office of Mayor. Using the same argument, the councilor who had previously acted as Mayor also campaigns for his election to the same post of Mayor while keeping his position as councilor. Thus we would have this singular situation of three municipal officials occupying three separate and distinct offices, running for the same office of Mayor, yet keeping their different respective offices, and strangely enough two of those offices (Vice-Mayor and Councilor) are different from the office of Mayor they are running for. Could that situation have been contemplated by the Legislature in enacting section 27 of the Revised Election Code? We do not think so, and yet that would happen if the contention of the petitioner about the meaning of “actually holding office” is to prevail.
CONGRESS CONTEMPLATED ONLY ONE OFFICE ACTUALITY HELD
Another argument against the contention that a Vice- Mayor acting as Mayor actually holds the office of Mayor, occurs to us. For purposes of ready reference we again quote section 27 in its entirety:
“Sec. 27. Candidate holding office.—Any elective provincial, municipal, or city official running for an office, other than the one which he is actually holding, shall be considered resigned from his office from the moment of the filing of his certificate of candidacy.”
It will readily be noticed from the quoted section, especially the words underlined by us that the Legislature contemplated only one office, not two or more. To us, this is significant as well as important. As we have previously stated, there is no question that a Vice-Mayor acting as Mayor still holds the office of Vice-Mayor. Petitioner himself admits this in his written argument and even contends that there is nothing wrong or illegal in an official holding two offices at the same time provided there is no incompatibility between them. If the Legislature believed that a Vice-Mayor acting as Mayor actually holds the office of Mayor and that he would thus be actually holding two offices, then it would have provided in section 27 for offices ill the plural instead of employing the words office, his office, and the one which it used in the singular. Besides this clear expression of legislative intent for only one office being actually held and to be resigned from, to say that the Vice-Mayor when’ acting as Mayor is actually holding two offices would create confusion and uncertainty because we would not know which office he would be considered resigned from.
TWO OFFICIALS “ACTUALLY HOLDING” THE SAME ELECTIVE OFFICE
We have already said that a Mayor under temporary . disability continues to be Mayor (Gamalinda vs. Yap* No. L-6121, May 30, 1953) and actually holds the office despite his temporary disability to discharge the duties of the office; he receives full salary corresponding to his office, which payment may not be (legal if he were not actually holding the office, while the Vice-Mayor acting as Mayor does not receive said salary but is paid only a sum equivalent to it (section 2187, Revised Administrative Code). Now, if a Mayor under temporary disability actually holds the office of Mayor and the Vice-Mayor acting as Mayor, according to his claim ia also actually holding the office of Mayor, then we would have the anomalous and embarrassing situation of two officials actually holding the very same local elective office. Considered from this view, point, and to avoid the anomaly, it ia to us clear that the Vice-Mayor should not be regarded as holding the office of Mayor but merely acting for the regular incumbent, a duty or right as an incident to his office of Vice-Mayor and not as an independent right or absolute title to the office by reason of election or appointment.
ACTING MAYOR AND ACTING AS MAYOR, DISTINGUISHED
Petitioner claims that he is the acting Mayor, Respondents insist that petitioner is merely acting as Mayor. It is pertinent and profitable, at least in the present case, to make a distinction between an Acting Mayor and a , Vice-Mayor acting as Mayor. “When a vacancy occurs in the office of Mayor, the Provincial Governor under section 21 (a) or the President under section 21(6), (d) and (e) of the Election Code appoints or designates an Acting Mayor. In that case the person designated or appointed becomes the Mayor and actually holds the office for the unexpired term of the office (section 21 [f]) because when he was appointed there was no regular incumbent to the office. However, when a Vice-Mayor acts as Mayor, there is no vacancy in the post of Mayor. There is a regular incumbent Mayor only that the latter is under temporary disability. So, strictly and correctly speaking, the Vice-Mayor may not be considered Acting Mayor. He is only acting as Mayor temporarily, provisionally and during the temporary disability of the regular incumbent. He is not the incumbent. In baseball parlance, petitioner is only a “pinch hitter”,—pinch hitting for, say, the pitcher in an emergency. As a mere pinch hitter his name does not grace the regular line up, he is not the pitcher, does not hold the position of pitcher, neither does he receive all the benefits and privileges of the regular pitcher. Ordinarily, this apparently fine and subtle distinction would seem unimportant and unnecessary. When a Vice- Mayor acts as Mayor we usually call him Mayor or Acting Mayor and deal with him as though he were the regular incumbent; but there are times and occasions like the present when it is necessary to make these distinction and use correct and precise language in order to determine whether or not under section 27 of the Election Code a Vice Mayor acting as Mayor like the petitioner herein comes within the phrase “actually holding office” used in that section.
EXCEPTION TO BE CONSTRUED STRICTLY
Section 26 of the Revised Election Code provides that every person holding an appointive office shall ipso facto cease in his office on the date he files his certificate of candidacy. Then we have section 27 of the same Code as well as section 2 of Commonwealth Act No. 666 which it amended, both providing that local elective officials running for office shall be considered resigned from their posts, except when they run for the same office they are occupying or holding. It is evident that the general rule is that all Government officials running for office must resign. The authority or privilege to keep one’s office when running for the same office is the exception. It is a settled rule of statutory construction that an exception or a proviso must be strictly construed specially when considered in an attempt to ascertain the legislative intent.
“Exceptions, as a general rule, should be strictly, but reasonably construed; they extend only so far as their language fairly warrants, and all doubts should be resolved in favor of the general provision rather than the exception. Where. a general rule is established by statute with exceptions, the court will not curtail the former nor add to the latter by implication, and it is a general rule that an express exception excludes all others, although it ,is always proper in determining the applicability of this rule, to inquire whether, in the particular case, it accords with reason and justice. * * *.” (Francisco, Statutory Construction, p. 304, citing 69 C. J., section 643, pp. 1092-1093; Italics supplied.) “As in all other cases, a proviso should be interpreted consistently with the legislative intent. Where the proviso itself must be considered. In an attempt to determine the intent of the Legislature it should be strictly construed. This is true because the legislative purpose set forth in the general enactment expresses the legislative policy and only those subjects expressly exempted by the proviso should be freed from the operation of the statute. (Sutherland, Statutory Construction, 3rd ed., Vol. 2, pp. 471-472.)
Applying this rule, inasmuch as petitioner herein claimed the right to retain his office under the exception above referred to, said claim must have to be judged strictly,— whether or not his mere acting in the office of Mayor may be legally interpreted as actually holding the same so as to come within the exception. As we have already observed, literally and generally speaking, since he is discharging the duties and exercising the powers of the office of Mayor he might be regarded as actually holding the office; but strictly speaking and considering the purpose and intention of the Legislature behind section 27 of the Revised Election Code, he may not and cannot legitimately be considered as actually holding the office of Mayor.
RETENTION OF OFFICE
We have, heretofore discussed the case as regards the resignation of an office holder from his office by reason of his running for an office different from it; and our conclusion is that it must be an office that he can or may resign or be considered resigned from; and that the office of Mayor is not such an office from the stand point of a Vice-Mayor. Let us now consider the case from the point of view of retaining his office because he is running for the same office, namely—retention of his offidej… As we have already said, the Legislature intended to allow an office holder and incumbent to retain his office provided that he runs for the same. In other words, he is supposed to retain the office before and throughout the elections and up to the expiration of the term of the office, without interruption. Can a Vice-Mayor acting as Mayor.be allowed or expected to retain the office of Mayor? The incumbent Mayor running, for the same office can and has a right to keep and retain said office up to the end of his term. But a Vice-Mayor merely acting as Mayor and running for said office of Mayor, may not and cannot be expected to keep the office up to the end of the term, even assuming that by acting as Mayor he is actually holding the office of Mayor, for the simple reason that his holding of the same is temporary, provisional and precarious and may end any time when the incumbent Mayor returns to duty. Naturally, his temporary holding of the office of Mayor cannot be the retention or right to keep the office intended by the Legislature in section 27 of Republic Act No. 180. So that, neither from the point of view of resignation from the office of Mayor nor the standpoint of retention of said office, may a Vice-Mayor acting as Mayor, like herein petitioner, come within the provisions and meaning of section 27 of the Election Code, particularly the exception m it.
SUPPOSED DISCRIMINATION AGAINST VICE-MAYOR ACTING AS MAYOR
During the hearing and oral argument of this case, the suggestion was made, which suggestion was also used as an argument during the deliberations among the members of this Tribunal, that to include in section 27 particularly the phrase “actually holding office” one who has been appointed as acting official such as Acting Mayor and at the same time exclude a Vice-Mayor who acts as Mayor, would be discriminating against an official (Vice-Mayor) who by statutory provision and sanction is required to act as Mayor, and give more importance to one merely appointed to said office. We fail to see any discrimination for the reason that an appointee to the office of Mayor fills a vacancy and serves until the end of the term of the office, whereas a Vice-Mayor acting as Mayor fills no vacancy because there is none and he serves only temporarily until the disability of the incumbent, such as suspension, absence, illness, etc. is removed. Now, if a vacancy is created in the office of Mayor by removal, resignation, death or cessation of the incumbent, then the Vice-Mayor automatically fills the vacancy, becomes Mayor (section 2195, Revised Administrative Code), and serves until the end of the term (section 21[/], Revised Election Code). That is the time when he may invoke section 27 because he would then be actually holding the office of Mayor.
CONCLUSION
In conclusion, we believe and hold that a Vice-Mayor . acting as Mayor does not “actually hold the office” of Mayor within the meaning of section 27 of Republic Act No. 180; that a Vice-Mayor who files his certificate of candidacy for the office of Mayor, even while acting as Mayor, is considered resigned from the office of Vice-Mayor for the reason that that is the only office that he “actually holds” within the contemplation of section 27 of the Revised Election Code and the office he is running for (Mayor) is naturally other than the one he is actually holding (Vice-Mayor); and that having ceased to be a Vice-Mayor, he automatically lost all right to act as Mayor. A word of explanation. This decision should have been promulgated long before now. In truth, this Tribunal was anxious and determined to decide this case before the last November elections, at least before the newly elected local officials assumed office. However, after long, careful deliberations the court was deadlocked, the vote standing five to five.. The rehearing ordered by us as decreed by ., law failed to break the deadlock. It was only when the new addition to the membership of the Tribunal, Mr. Justice Endencia studied the case, weighed the arguments and considered the authorities on either side, that the tie vote could be broken. He voted for and signed the .present opinion which now becomes the majority opinion. The question involved in the present case may in a way be regarded as moot. Just the same, we doomed it advisable to proceed with its final determination, even elaborate on the discussion of its different aspects, by reason of its importance and for the information and guidance of local elective officials, and perchance so that the Legislature, apprised of the judicial interpretation and meaning given to section 27 of the Revised Election Code, may be in a better position to decide whether to continue and leave it as it stands on the statute books, or amend or change it before the next general elections. In view of the foregoing the petition for prohibition is denied, with costs. The writ of preliminary injunction heretofore issued is hereby dissolved. Padilla, Jugo, Labrador, and Endencia, JJ., concur.