public officer cases 1

8/18/2019 Public Officer Cases 1

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G.R. No. 104732 June 22, 1993

ROBERTO A. FLORES, DANIEL Y. FIGUEROA, ROGELIO T. PALO, DOINGO A. JADLO!, !ARLITO T.

!RU" #n$ ANUEL P. REYES, petitioner,

vs.

%ON. FRAN&LIN . DRILON, E'e(u)*+e Se(e)#-, #n$ RI!%ARD J. GORDON, respondents.

Isagani M. Jungco, Valeriano S. Peralta, Miguel Famularcano, Jr. and Virgilio E. Acierto for petitioners.

BELLOSILLO, J.:

The constitutionality of Sec. 13, par. (d), of R.A. 7227, 1 otherwise nown as the !"ases #onversion and

$evelop%ent Act of 1&&2,! under which respondent 'ayor Richard . ordon of *lon+apo #ity was appointed

#hair%an and #hief -ecutive *fficer of the Suic "ay 'etropolitan Authority (S"'A), is challen+ed in this

ori+inal petition with prayer for prohiition, preli%inary in/unction and te%porary restrainin+ order !to prevent

useless and unnecessary e-penditures of pulic funds y way of salaries and other operational e-penses

attached to the office . . . .! 2 0ara+raph (d) reads

(d) Chairman administrator The 0resident shall appoint a professional %ana+er as

ad%inistrator of the Suic Authority with a co%pensation to e deter%ined y the

"oard su/ect to the approval of the Secretary of "ud+et, who shall e the ex

oficio chair%an of the "oard and who shall serve as the chief e-ecutive officer of the

Suic Authority Proided, ho!eer, "hat for the first #ear of its operations from the

effectiit# of this Act, the ma#or of the Cit# of $longapo shall %e appointed as the

chairman and chief executie officer of the Su%ic Authorit# (e%phasis supplied).

0etitioners, who clai% to e ta-payers, e%ployees of the .S. 4acility at the Suic, 5a%ales, and officers and

%e%ers of the 4ilipino #ivilian %ployees Association in .S. 4acilities in the 0hilippines, %aintain that

the proiso in par . (d) of Sec. 13 herein6aove uoted in italics infrin+es on the followin+ constitutional and

statutory provisions (a) Sec. 7, first par., Art. 896", of the #onstitution, which states that !&n'o electie official

shall %e eligi%le for appointment or designation in an# capacit# to an# pu%lic officer or position during his

tenure,! 3 ecause the #ity 'ayor of *lon+apo #ity is an elective official and the su/ect posts are pulic

offices: () Sec. 1;, Art. he 0resident shall . . . . appoint all other

officers of the overn%ent whose appoint%ents are not otherwise proided for y law, and those who% he

%ay e authori?ed y law to appoint!, 4 since it was #on+ress throu+h the uestioned proiso and not the

0resident who appointed the 'ayor to the su/ect posts:

and, (c) Sec. 2;1, par. (+), of the *%nius lection#ode, which says

Sec. 2;1. Prohi%ited Acts. The followin+ shall e +uilty of an election offense . . . (+)

Appoint%ent of new e%ployees, creation of new position, pro%otion, or +ivin+ salary

increases. $urin+ the period of forty6five days efore a re+ular election and thirty

days efore a special election, (1) any head, official or appointin+ officer of a

+overn%ent office, a+ency or instru%entality, whether national or local, includin+

+overn%ent6owned or controlled corporations, who appoints or hires any new

e%ployee, whether provisional, te%porary or casual, or creates and fills any new

position, e-cept upon prior authority of the #o%%ission. The #o%%ission shall not

+rant the authority sou+ht unless it is satisfied that the position to e filled is essential

to the proper functionin+ of the office or a+ency concerned, and that the position shall

not e filled in a %anner that %ay influence the election. As an e-ception to the

fore+oin+ provisions, a new e%ployee %ay e appointed in case of ur+ent

needProided

, ho!eer , That notice of the appoint%ent shall e +iven to the

#o%%ission within three days fro% the da te of the appoint%ent. Any appoint%ent or

hirin+ in violation of this provision shall e null and void. (2) Any +overn%ent official

who pro%otes, or +ives any increase of salary or re%uneration or privile+e to any

+overn%ent official or e%ployee, includin+ those in +overn%ent6owned or controlled

corporations . . . .

for the reason that the appoint%ent of respondent ordon to the su/ect posts %ade y respondent -ecutive

Secretary on 3 April 1&&2 was within the prohiited @6day period prior to the 11 'ay 1&&2 lections.

The principal uestion is whether the proiso in Sec. 13, par. (d), of R.A. 7227 which states, !Proided,

ho!eer ,"hat for the first #ear of its operations from the effectiit# of this Act, the ma#or of the Cit# of

$longapo shall %e appointed as the chairman and chief executie officer of the Su%ic Authorit# ,! violates the

constitutional proscription a+ainst appoint%ent or desi+nation of elective officials to other +overn%ent posts.

8n full, Sec. 7 of Art. 896" of the #onstitution provides

Bo elective official shall e eli+ile for appoint%ent or desi+nation in any capacity to

any pulic office or position durin+ his tenure.

nless otherwise allowed y law or y the pri%ary functions of his position, no

appointive official shall hold any other office or e%ploy%ent in the overn%ent or any

sudivision, a+ency or instru%entality thereof, includin+ +overn%ent6owned or

controlled corporations or their susidiaries.

The section e-presses the policy a+ainst the concentration of several pulic positions in one person, so that a

pulic officer or e%ployee %ay serve full6ti%e with dedication and thus e efficient in the delivery of pulic

services. 8t is an affir%ation that a pulic office is a full6ti%e /o. Cence, a pulic officer or e%ployee, lie the

head of an e-ecutive depart%ent descried in Ciil (i%erties )nion . Executie Secretar# , *.+. o. --/0 ,

and Anti1*raft (eague of the Philippines, Inc. . Philip Ella C. Juico, as Secretar# of Agrarian +eform, .R. Bo.

D3D1, / !. . . . should e allowed to attend to his duties and responsiilities without the distraction of other

+overn%ental duties or e%ploy%ent. Ce should e precluded fro% dissipatin+ his efforts, attention and ener+y

a%on+ too %any positions of respo nsiility, which %ay result in hapha?ardness and inefficiency . . . .!

0articularly as re+ards the first para+raph of Sec. 7, !(t)he asic idea really is to prevent a situation where a

local elective official will wor for his appoint%ent in an e-ecutive position in +overn%ent, and thus ne+lect his

constituents . . . .! 7

8n the case efore us, the su/ect proiso directs the 0resident to appoint an elective official, i.e., the 'ayor of

*lon+apo #ity, to other +overn%ent posts (as #hair%an of the "oard and #hief -ecutive *fficer of S"'A).

Since this is precisely what the constitutional proscription sees to prevent, it needs no stretchin+ of the

i%a+ination to conclude that the proiso contravenes Sec. 7, first pa r., Art. 896", of the #onstitution. Cere, the

fact that the e-pertise of an elective official %ay e %ost eneficial to the hi+her interest of the ody politic is of

no %o%ent.

8t is ar+ued that Sec. &@ of the Eocal overn%ent #ode (E#) per%its the appoint%ent of a local elective

official to another post if so allowed y law or y the pri%ary functions of his office. "ut, the contention is

fallacious. Section &@ of the E# is not deter%inative of the constitutionality of Sec. 13, par. (d), of R.A. 7227,

for no le+islative act can prevail over the funda%ental law of the land. 'oreover, since the constitutionality of

Sec. &@ of E# is not the issue here nor is that section sou+ht to e declared unconstitutional, we need not

rule on its validity. Beither can we invoe a practice otherwise unconstitutional as authority for its validity.

8n any case, the view that an elective official %ay e appointed to another post if allowed y law or y the

pri%ary functions of his office, i+nores the clear6cut difference in the wordin+ of the two (2) para+raphs of Sec.

7, Art.


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896", of the #onstitution. Fhile the second para+raph authori?es holdin+ of %ultiple offices y

an appointieofficial when allowed y law or y the pri%ary functions of his position, the first para+raph

appears to e %ore strin+ent y not providin+ any e-ception to the rule a+ainst appoint%ent or desi+nation of

an electie official to the +overn%ent post, e-cept as are particularly reco+ni?ed in the #onstitution itself, e.+.,

the 0resident as head of the econo%ic and plannin+ a+ency: 9 the he desi+nation of a person, y the person or persons havin+

authority therefor, to dischar+e the duties of so%e office or trust,! 17 or !=t>he selection or desi+nation of a

person, y the person or persons havin+ authority therefor, to fill an office or pulic function and dischar+e the

duties of the sa%e. 1 8n his treatise, Philippine Political

(a! , 19 Senior Associate ustice 8sa+ani A. #ru? defines appoint%ent as !the selection, y the authority vested

with the power, of an individual who is to e-ercise the functions of a +iven office.!

#onsiderin+ that appoint%ent calls for a selection, the appointin+ power necessarily e-ercises a discretion.

Accordin+ to Foodury, ., 20 !the choice of a person to fill an office constitutes the essence of his

appoint%ent,! 21 and 'r. ustice 'alcol% adds that an !=a>ppoint%ent to office is intrinsically an e-ecutive act

involvin+ the e-ercise of discretion.! 22 8n Pamantasan ng (ungsod ng Ma#nila . Intermediate Appellate

Court

23 we held

The power to appoint is, in essence, discretionary. The appointin+ power has the ri+ht

of choice which he %ay e-ercise freely accordin+ to his /ud+%ent, decidin+ for hi%self

who is est ualified a%on+ those who have the necessary ualifications and

eli+iilities. 8t is a prero+ative of the appointin+ power . . . .

8ndeed, the power of choice is the heart of the power to appoint. Appoint%ent involves an e-ercise of

discretion of who% to appoint: it is not a %inisterial act of issuin+ appoint%ent papers to the appointee. 8n

other words, the choice of the appointee is a funda%ental co%ponent of the appointin+ power.

Cence, when #on+ress clothes the 0resident with the power to appoint an officer, it (#on+ress) cannot at the

sa%e ti%e li%it the choice of the 0resident to only one candidate. *nce the power of appoint%ent is conferred

on the 0resident, such confer%ent necessarily carries the discretion of who% to appoint. ven on the prete-t

of prescriin+ the ualifications of the officer, #on+ress %ay not ause such power as to divest the appointin+

authority, directly or indirectly, of his discretion to pic his own choice. #onseuently, when the ualifications

prescried y #on+ress can only e %et y one individual, such enact%ent effectively eli%inates the

discretion of the appointin+ power to choose and constitutes an irre+ular restriction on the power of

appoint%ent. 24

8n the case at ar, while #on+ress willed that the su/ect posts e filled with a presidential appointee for the

first year of its operations fro% the effectivity of R.A. 7227, the proiso nevertheless li%its the appointin+

authority to only one eli+ile, i.e., the incu%ent 'ayor of *lon +apo #ity. Since only one can ualify for the

posts in uestion, the 0resident is precluded fro% e-ercisin+ his discretion to choose who% to appoint. Such

supposed power of appoint%ent, sans the essential ele%ent of choice, is no power at all and +oes a+ainst the

very nature itself of appoint%ent.

Fhile it %ay e viewed that the proiso %erely sets the ualifications of the officer durin+ the first year of

operations of S"'A, i.e., he %ust e the 'ayor of *lon+apo #ity, it is %anifestly an ause of con+ressional

authority to prescrie ualifications where only one, and no other, can ualify. Accordin+ly, while the


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confer%ent of the appointin+ power on the 0resident is a perfectly valid le+islative act, the proiso li%itin+ his

choice to one is certainly an encroach%ent on his prero+ative.

Since the ineli+iility of an elective official for appoint%ent re%ains all throu+hout his tenure or durin+ his

incu%ency, he %ay however resi+n first fro% his el ective post to cast off the constitutionally6attached

disualification efore he %ay e considered fit for appoint%ent. The delieration in the #onstitutional

#o%%ission is enli+htenin+

'R. $A


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vs.

T%E %ONORABLE SANDIGANBAYAN, :T%IRD DIISION


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nu%er to warrant representation, there will asolutely e no

asis for the desi+nationKappoint%ents.

8n the process of such inuiry as to the sufficiency in nu%er of the sector concerned to

warrant representation, the San++unian is en/oined y law (".0. "l+. 337) to consult

with associations and persons elon+in+ to the sector concerned. #onsultation with the

sector concerned is %ade a pre6reuisite. This is so considerin+ that those who elon+

to the said sector are the ones pri%arily interested in ein+ represented in the

San++unian. 8n the sa%e aforecited case, the Supre%e #ourt considers such prior

deter%ination y the San++unian itself (not y any other person or ody) as a

condition sine 2ua non to a valid appoint%ent or desi+nation.

Since in the present case, there was total asence of the reuired prior deter%ination

y the San++unian+ "ayan of i%alalud, this #ourt cannot help ut declare the

desi+nations of private defendants as sectoral representatives null and void.

This verdict is not without precedence. 8n several si%ilar cases, the Supre%e #ourt

invarialy nullified the desi+nations wher e the reuire%ents of Sec. 1@; (2), ".0. "l+.

337 were not co%plied with. ust to cite one case, the Supre%e #ourt ruled

There is no certification fro% the San++unian+ "ayan of


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". The Respondent #ourt acted without or in e-cess of /urisdiction in refusin+ to

suspend the proceedin+s that would entail a retrial and rehearin+ y it of the asic

issue involved, i .e., the validity of the appoint%ents of private respondents and their

entitle%ent to co%pensation which is already pendin+ resolution y the #ourt of

Appeals in #.A. .R. #< Bo. 3;7;&: and

#. The Respondent #ourt co%%itted +rave ause of discretion andKor acted without or

in e-cess of /urisdiction in effectively allowin+ petitioners to e prosecuted under two

alternative theories that private respondents are de 3ure andKor de facto officers in

violation of petitionersI ri+ht to due process. 10

8n su%, the only issue in the case at ench is whether or not the le+ality or validity of private respondentsI

desi+nation as sectoral representatives which is pendin+ resolution in #A6.R. Bo. 3;7;& is a pre/udicial

uestion /ustifyin+ suspension of the proceedin+s in the cri%inal case a+ainst petitioners.

A pre/udicial uestion is one that %ust e decided efore any cri%inal prosecution %ay e instituted or efore

it %ay proceed (see Art. 3;, #ivil #ode) ecause a decision on that point is vital to the eventual /ud+%ent in

the cri%inal case. Thus, the resolution of the pre/udicial uestion is a lo+ical antecedent of the issues involved

in said cri%inal case. 11

A pre/udicial uestion is defined as that which arises in a case the resolution of which is a lo+ical antecedent of

the issue involved therein, and the co+ni?ance of which pertains to another triunal. The pre/udicial uestion

%ust e deter%inative of the case efore the court ut the /urisdiction to try and resolve the uestion %ust e

lod+ed in another court or triunal. 12 8t is a uestion ased on a fact distinct and separate fro% !the cri%e ut

so inti%ately connected with it that it deter%ines the +uilt or innocence of the accused, and for it to suspendthe cri%inal action, it %ust appear not only that said case involves facts inti%ately related to those upon which

the cri%inal prosecution would e ased ut also that in the resolution of the issue or issues raised in the civil

case, the +uilt or innocence of the accused would necessarily e deter%ined. 8t co%es into play +enerally in a

situation where a civil action and a cri%inal action are oth pendin+ and there e-ists in the for%er an issue

which %ust e pree%ptively resolved efore the cri%inal action %ay proceed, ecause howsoever the issue

raised in the civil action is resolved would e deter%inative 3uris et de 3ure of the +uilt or innocence of the

accused in the cri%inal case.! 13

The rationale ehind the principle of pre/udicial uestion is to avoid two conflictin+ decisions. 14 8t has two

essential ele%ents

(a) the civil action involves an issue si%ilar or inti%ately related to the issue raised in

the cri%inal action: and

() the resolution of such issue deter%ines whether or not the cri%inal action %ay

proceed. 1

Applyin+ the fore+oin+ principles to the case at ench, we find that the issue in the civil case, #A6.R. #< Bo.

3;7;&, constitutes a valid pre/udicial uestion to warrant suspension of the arrai+n%ent and further

proceedin+s in the cri%inal case a+ainst petitioners.

All the ele%ents of a pre/udicial uestion are clearly and un%istaaly present in this case. There is no dout

that the facts and issues involved in the civil action (Bo. 3;7;&) and the cri%inal case (Bo. 1;&3;) are closely

related. The filin+ of the cri%inal case was pre%ised on petitionersI alle+ed partiality and evident ad faith in

not payin+ private respondentsI salaries and per diems as sectoral representatives, while the civil action was

instituted precisely to resolve whether or not the desi+nations of private respondents as sectoral

representatives were %ade in accordance with law.

'ore i%portantly, ,the resolution of the civil case will certainly deter%ine if there will still e any reason to

proceed with the cri%inal action.

0etitioners were cri%inally char+ed under the Anti6raft M #orrupt 0ractices Act (RA 3H1&, sec, 3=e>) due to

their refusal, alle+edly in ad faith and with %anifest partiality, to pay private respondentsI salaries as sectoral

representatives. This refusal, however, was anchored on petitionersI assertion that said desi+nations were

%ade in violation of the Eocal overn%ent #ode (".0. "l+. 337) and thus, were null a nd void. Therefore,

should the #ourt of Appeals uphold the trial courtIs decision declarin+ null and void private respondentsI

desi+nations as sectoral representatives for failure to co%ply with the provisions of the Eocal overn%ent

#ode (".0. "l+. 337, sec. 1@;=2>), the char+es a+ainst petitioners would no lon+er, so to spea, have a le+ to

stand on. 0etitioners cannot e accused of ad faith and partiality there ein+ in the first place no oli+ation ontheir part to pay private respondentsI clai%s. 0rivate respondents do not have any le+al ri+ht to de%and

salaries, per diems and other enefits. 8n other words, the #ourt of AppealsI resolution of the issues raised in

the civil action will ulti%ately deter%ine whether or not there is asis to proceed with the cri%inal case.

0rivate respondents insist that even if their desi+nations are nullified, they are entitled to co%pensation for

actual services rendered. 1/ Fe disa+ree. As found y the trial court and as orne out y the records, fro% the

start, private respondentsI desi+nations as sectoral representatives have een challen+ed y petitioners. They

e+an with a petition filed with the *ffice of the 0resident copies of which were received y private

respondents on 2; 4eruary 1&D&, arely ei+ht (D) days after they too their oath of office. 17 Cence, private

respondentsI clai% that they have actually rendered services as sectoral representatives has not een

estalished.

4inally, we find un%eritorious respondent Sandi+anayanIs thesis that even in the event that private

respondentsI desi+nations are finally declared invalid, they %ay still e considered de facto pulic officersentitled to co%pensation for services actually rendered.

The conditions and ele%ents of de facto officership are the followin+

1) There %ust e a de 3ure office:

2) There %ust e color of ri+ht or +eneral acuiescence y the pulic: and

3) There %ust e actual physical possession of the office in +ood faith. 1

*ne can ualify as a de facto officer only if all the aforestated ele%ents are present. There can e no de

factoofficer where there is no de 3ure office, althou+h there %ay e a de facto officer in a de 3ure office. 19

FCR4*R, the resolution dated 17 4eruary 1&&2 and orders dated 1& Au+ust 1&&2 and 13 'ay 1&&3 of

respondent Sandi+anayan in #ri%inal #ase Bo. 1;&3; are herey ST AS8$. Respondent Sandi+anayan

is en/oined fro% proceedin+ with the arrai+n%ent and trial of petitioners in #ri%inal #ase Bo. 1;&3; pendin+

final resolution of #A6.R. #< Bo. 3;7;&.

S* *R$R$.

G.R. No. L;121 #( 13, 1917

JOSE LINO LUNA, Petitioner , vs. EULOGIO RODRIGUE", +espondent .

+amon 4io5no 6 Agapito 7gnacio for petitioner.Sumulong 6 Estrada for respondent.


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ORELAND, J.>

This is an action ased upon the alle+ed usurpation of a pulic office, that of +overnor of the 0rovince of Ri?al,

in which a de%urrer was filed to the co%plaint. The uestion efore us arises on the issues fra%ed y the

de%urrer.chanrolesvirtualawlirary chanroles virtual law lirary

After settin+ out the election of the defendant, the co%plaint alle+es that !The plaintiff duly e+an a contest in

the #ourt of 4irst 8nstance of Ri?al a+ainst the said election, and, while the said contest was pendin+ decision,

the defendant too possession of the office to which he was elected on the 1;th of *ctoer, 1&1;, y virtud of

a certificate of election issued to hi% y the oard of provincial canvassers, which certificate of election was

the su/ect of controversy in the election contest.!chanroles virtual law lirary

The co%plaint further alle+es that !The protest was decided y the #ourt of 4irst 8nstance on the 1@th day of

anuary, 1&17, and the plaintiff was declared to have received @H1D votes while the defendant was found to

have received only 3,317 votes, that is to say, that the plaintiff was the one who received a plurality of the le+al

votes cast at the said election: and the court ordered, in conseuence, that the provincial oard, as the

provincial oard of canvassers, correct its canvass in accordance with the decision of the court.!chanroles

virtual law lirary

The co%plaint avers that !8n view of the decision referred to, the plaintiff notified the defendant that he was

ready to ualify and to assu%e possession of the office and de%anded that he uit the office and deliver it to

the plaintiff: ut that the defendant refused to do so.!chanroles virtual law lirary

pon these facts plaintiff asserts in his co%plaint that !The defendant is retainin+ and usurpin+ the office inuestion to the +reat in/ury of the plaintiff and to the detri%ent of the pulic interest:! and %aintains that !the

plaintiff has the ri+ht, y virtue of the decision of the #ourt of 4irst 8nstance aove %entioned, to tae

possession of and e-ercise the duties of the office, and the defendant, y virtue of said decisions, has lost his

ri+ht to occupy it, and is at the present ti%e in possession thereof without ri+ht.!chanroles virtual law lirary

A de%urrer was filed to the co%plaint on the +round that !The alle+ations of the co%plaint fail to show that the

plaintiff is entitled to occupy the office and dischar+e the duties of the office now held y the defendant:! and

that !The facts set out in the co%plaint are not sufficient to constitute a cause of action as they do not show

that the defendant is usurpin+ or ille+ally retainin+ possession of the office in uestion.!chanroles virtual law

lirary

Fe are of the opinion that the de%urrer %ust e sustained. The co%plaint does not show that the plaintiff was

entitled to the office or that the defendant is ille+ally in possession thereof. Section 1&7 of the #ode of #ivil

0rocedure provides that !A civil action %ay e rou+ht in the na%e of the overn%ent of the 0hilippine8slands (1) A+ainst a person who usurps, intrudes into, or unlawfully holds or e-ercises a pulic civil office:!

and that such action %ay e co%%enced y any !person clai%in+ to e entitled to a pulic office, unlawfully

held and e-ercised y another.! Section 2H2 declared that !Fhen the action is a+ainst a person for usurpin+

an office, the co%plaint shall set forth the na%e of the person who clai%s to e entitled thereto, with an

aver%ent of his ri+ht to the sa%e: and that the defendant is unlawfully in possession of the sa%e: and

/ud+%ent %ay e rendered upon the ri+ht of the defendant, and also upon the ri+h t of the person so averred to

e entitled, or only upon the ri+ht of the defendant, as /ustice reuires.!chanroles virtual law lirary

Section 2H7 deter%ines the for% and nature of the /ud+%ent to e rendered in this class of action. 8t provides

that !Fhen the defendant is found +uilty of usurpin+, intrudin+ into, or unlawfully holdin+ or e-ercisin+ an

office, . . . /ud+%ent shall e rendered that such defendant e ousted and alto+ether e-cluded therefro%, and

that the relator or plaintiff, as the case %ay e, recover his costs.!chanroles virtual law lirary

This court has held on several occasions, in applyin+ that portion of the lection Eaw referrin+ to the electionof provincial +overnors, that a person is not entitled to occupy the office of provincial +overnor until his election

has een duly proclai%ed y the provincial oard of canvassers and a certificate of election has een issued

to hi% in pursuance of that procla%ation ('analo s.Sevilla, 2@ 0hil. Rep., ;H&). The certificate of election is

the credential which proves his ri+ht to e-ercise the functions of the office and ad%its hi% into possession

thereof.chanrolesvirtualawlirary chanroles virtual law lirary

Section 1&&& of the Ad%inistrative #ode provides in effect that a person holdin+ a pulic office shall continue

to possess and e-ercise the functions of the sa%e until his successor is elected and ualifies. "y virtue of this

statute on who occupies a pulic office is reuired to %aintain possession thereof until his successor is elected

and ualifies. 8f he turns the office over to a person who was not duly elected and who has not ualified he is

actin+ in violation of law and will e responsile for the loss of %oney or property occasioned y such transfer.

Fhile section 2H& of the #ode of #ivil 0rocedure provides that a plaintiff in an action of uo warranto %ay edeclared entitled to the office in uestion efore he has taen the oath of office or e-ecuted the official ond

reuired y law, that fact is not in conflict with our opinion that the plaintiff in the present action %ust +o so far

as to alle+e in his co%plaint and prove on the trial that he was duly elected to the office in

dispute.chanrolesvirtualawlirary chanroles virtual law lirary

The co%plaint rests the plaintiffIs ri+ht to the office e-clusively upon the decision of the #ourt of 4irst 8nstance

in the election contest. That ri+ht is not ased on a procla%ation of the provincial oard of canvassers or on a

certificate of election issued in pursuance thereof. There is no alle+ation in the co%plaint that the provincial

oard of canvassers corrected its canvass in accordance with the decision of the #ourt of 4irst 8nstance, or

that, after such correction, that ody duly proclai%ed the plaintiff elected to the office in uestion. Beither is

there an alle+ation that a certificate of election was duly issued to the plaintiff in pursuance of such

procla%ation. 0laintiffIs ri+ht to the office, accordin+ to his own alle+ations, rests e-clusively on the /ud+%ent

of the #ourt of 4irst 8nstance referred to.chanrolesvirtualawlirary chanroles virtual law lirary

This court has held on several occasions (Topacio s. 0aredes, 23 0hil. Rep., 23D: Contiveros s. Altavas, 2@

0hil. Rep., ;32) that a #ourt of 4irst 8nstance in an election contest has no authority to declare any one elected

to the office to which the contest relates. 8ts sole duty is to order the provincial oard of canvassers to correct

its return. 8ts /ud+%ent, therefore, is not proof of plaintiffIs election. 'oreover, it is su/ect to appeal. 8n fact, the

/ud+%ent of the court in this case was appealed and that appeal is now pendin+ in this

court.chanrolesvirtualawlirary chanroles virtual law lirary

8t is our opinion, therefore, that the co%plaint does not show either that the plaintiff is entitled to the office or

that the defendant is usurpin+ the sa%e.chanrolesvirtualawlirary chanroles virtual law lirary

Althou+h it is not %entioned as +round of de%urrer and has not een presented or discussed, it is a +rave

uestion, even concedin+ that this action is %aintainale under any theory, whether the co%plaint is not

de%urrale on the +round that there is another action pendin+ etween the sa%e parties for the sa%e cause.

An election contest deter%ines finally the ri+ht of the contestant as well as of each of the respondents to theoffice contested. Fhile the contest does not deter%ine the eli+iility of the candidate for office, it deter%ines

who was elected to the office contested. 8t will e oserved that the co%plaint in this action is not ased on the

ineli+iility of the defendant ut sees to deter%ine who was elected to the office of provincial +overnor of the

0rovince of Ri?al in the last election. That uestion will e finally and conclusively deter%ined in the election

contest: and an action of uo warranto to deter%ine the sa%e uestion would see% to e unnecessary and

urdenso%e.chanrolesvirtualawlirary chanroles virtual law lirary

8t is clear to us that, althou+h the uestion has not een raised or discussed, this action is not %aintainale

under any theory. Section 27 of Act 1D2 provides a %ethod for the deter%ination of election contests which is

e-clusive of every other re%edy: and to the e-tent that it is applicale has %odified the #ode of #ivil

procedure dealin+ with actions founded upon the usurpation of pulic office. The case of aarro s.

*imene8 (1H 0hil. Rep., 22;) is si%ilar to the case efore us. There the election was contested under section

27 of Act Bo. 1D2. 8%%ediately after the decision of the court had een rendered in that contest an action of

usurpation was e+un under the provisions of the #ode of #ivil 0rocedure to which we have referred. The

Supre%e #ourt in that case decided the very uestion to which we have adverted. 8t said


8/33

8t is very evident that the Ee+islature intended to provide a su%%ary and e-clusive way for deter%inin+ the

facts in relation to certain elections held under the law. 8t is e-pressly provided y section 27 that the decision

of the #ourt of 4irst 8nstance shall e final and conclusive. Bo appeal is allowed fro% that decision. 8n the

present case there was such a proceedin+. The present plaintiff was a party thereto. Ce had an opportunity to

try and have decided the very uestions which he now ass to have decided y this court in this proceedin+.

Those uestions were, in fact, tried and decided in the court elow and if this action can e %aintained it

would a%ount to an allowance of an appeal fro% the /ud+%ent of the court elow in the election proceedin+,

the very thin+ which section 27 prohiits.chanrolesvirtualawlirary chanroles virtual law lirary

8t cannot e elieved that the Ee+islature, after providin+ a special and e-clusive %anner for deter%inin+ the

facts in an election case, and after declarin+ that deter%ination should e final, intended that the defeatedparty should have a ri+ht to try the sa%e uestions over a+ain y virtue of the provisions of section 2H1, aove

uoted. That the provisions of section 2H1 have een %odified to so%e e-tent y the lection Eaw is very

clear. Fhether or not it still re%ains in force and %ay e availed of y a defeated candidate, who clai%s that

the possessor of an office is not entitled thereto for so%e reason not connected with the %ethod of castin+ and

countin+ the votes, we do not decide. Fe do decide, however, that it has een so far %odified that no person

clai%in+ a ri+ht to a pulic office can now %aintain an action y virtue of this section when the +rounds alle+ed

y hi% in his co%plaint relate to the facts which the #ourt of 4irst 8nstance in proceedin+s under said section

27 had acuired a ri+ht to and did deter%ine.

This decision would see% to e conclusive of ri+ht to %aintain the present

action.chanrolesvirtualawlirary chanroles virtual law lirary

8n closin+ we call attention to the fact that unless the special re%edies %entioned in #hapter 89 of the #ode of

#ivil 0rocedure are directed a+ainst the court of 4irs 8nstance itself, the Supre%e #ourt will usually reuire theproceedin+ to e rou+ht in the #ourt of 4irst 8nstance instead of the Supre%e #ourt. The #ourt of 4irst

8nstance is etter adapted to the trial of these special re%edies than is the Supre%e #ourt: and we re+ard it as

the etter practice to e+in the proceedin+s to otain such re%edies in the trial court in the first instance. This

is especially true where the deter%ination of the uestions presented would reuire the tain+ of

evidence.chanrolesvirtualawlirary chanroles virtual law lirary

The de%urrer is sustained and unless the co%plaint is a%ended within five days the action will e finally

dis%issed with costs. So ordered.chanrolesvirtualawlirary chanroles virtual law lirary

"orres and Araullo, JJ., concur.

"rent, J., concurs in the result.

G.R. No. 907/2 #- 20, 1991

LEYTE A!TING I!E;GOERNOR AURELIO D. EN"ON, petitioner,vs.LEYTE A!TING GOERNOR, LEOPOLDO E. PETILLA *n * (#5#(*)- # !*e E'e(u)*+e o )ePo+*n(e o Le-)e #n$ %e#$ o SANGGUNIANG PANLALA?IGAN #n$ Le-)e Po+*n(*#6 Te#ueFLOREN!IO LUNA,respondents.

9o8imo *. Alegre for petitioner."he Proincial Attorne# for respondents.

R S * E T 8 * B

GUTIERRE", JR., J.:

This is a %otion for reconsideration of the resolution of the #ourt dated Au+ust 2D, 1&&H which initially deniedthe petition for certiorari and mandamus filed y then Actin+


9/33

Fe hold the view that the desi+nation e-tended y the Secretary of Eocal overn%ent in favor ofone of the San++unian+ 0anlalawi+an 'e%ers of Eeyte to te%porarily dischar+e the powers andduties of the vice6+overnor durin+ the pendency of the electoral controversy in the *ffice of theovernor, does not contradict the stand we have on the %atter. The fact that the San++unian+0anlalawi+an %e%er was te%porarily desi+nated to perfor% the functions of the vice6+overnorcould not e considered that the San++unian+ %e%er succeeds to the office of the latter, for it isasic that desi+nation is %erely an i%position of additional duties to e perfor%ed y the desi+neein addition to the official functions attached to his office. 4urther%ore, the necessity of desi+natin+an official to te%porarily perfor% the functions of a particular pulic office, would depend on thediscretion of the appointin+ authority and the prevailin+ circu%stances in a +iven area and ytain+ into consideration the est interest of pulic service.

*n the asis of the fore+oin+ and considerin+ that the law is silent in case of te%porary vacancy, inthe *ffice of the


10/33

declare valid the te%porary appoint%ent e-tended to the petitioner to act as the


11/33

election law filed in the #ourt of 4irst 8nstance of *riental Be+ros arisin+ in the #ourt of 4irst 8nstance of

*riental Be+ros arisin+ fro% the last election of une , 1&2D, the Conorale Si-to de la #osta was duly

desi+nated and acted as au-iliary /ud+e of the 0rovince of *riental Be+ros: that etween the au-iliary /ud+e

and the respondent /ud+e herein there was an understandin+, and the assi+n%ent of the said au-iliary /ud+e

was %ade with this understandin+, that the said au-iliary /ud+e so desi+nated would hear and tae co+ni?ance

of all election protests and cri%inal actions then pendin+ or to filed arisin+ fro% the said last +eneral election,

and that the respondent Conorale Bicolas #apistrano would try and hear the ordinary cases pendin+ in the

said court, ut, notwithstandin+ this understandin+ or a+ree%ent, the respondent /ud+e tried and is still tryin+

to tae co+ni?ance of the election protests an cri%inal actions in said court: that the respondent /ud+e

declared in open court that he will try the cri%inal cases herein %entioned for the reason that the au-iliary

/ud+e refused to try the sa%e on the +round that the preli%inary investi+ations were held efore hi%, when, in

truth and in fact, the said au-iliary /ud+e did not %ae the state%ent i%puted to hi% and was and is still willin+to try the election protests and cri%inal cases for violation of the election law pendin+ in the court of the

0rovince of *riental Be+ros: that the respondent Conorale Bicolas #apistrano, in spite of the fact that he was

holdin+ and is now pretendin+ to hold the office of /ud+e of the #ourt of 4irst 8nstance of *riental Be+ros, too

+reat interest and active part in the filin+ of cri%inal char+es a+ainst the petitioners herein to the un/ustifiale

e-tent of appointin+ a deputy fiscal, who then filed the proper infor%ations, when the provincial fiscal refused

to file cri%inal char+es a+ainst the petitioners for violation of the election law for lac of sufficient evidence to

sustain the sa%e: that said respondent is neither a /ud+e de 3ure nor de facto, ut that, notwithstandin+ this

fact, he continues to hold the office of /ud+e of the #ourt of 4irst 8nstance of *riental Be+ros and pretends to

e duly ualified and actin+ /ud+e of the said province: and that he has tried, and continues to try, to act as

such /ud+e and that there is reasonale +round to elieve that he will tae co+ni?ance of the cases in uestion

unless he e restrained y order of this court: that in actin+ as a duly ualified /ud+e notwithstandin+ the facts

alle+ed in the fifth, si-th, and seventh para+raphs hereof, the respondent /ud+e acted and is aout to act

without and in e-cess of /urisdiction and also after the loss of /urisdiction.

To this petition the respondents de%ur on the +round that the facts stated in that (1) none of the facts alle+ed

in the petition divest the respondent /ud+e of his /urisdiction to tae co+ni?ance of the cases referred to in the

co%plaint, and (2) even ad%ittin+ as true, for the sae of this de%urrer, the facts alle+ed in para+raph 7 of the

petition, the respondent /ud+e is still a de facto /ud+e and his title to the office and his /urisdiction to hear the

cases referred to in the petition cannot e uestioned y prohiition, as this writ, even when directed a+ainst

persons actin+ as /ud+es, cannot e treated as a sustitute for 2uo !arranto, or e ri+htfully called upon to

perfor% any of the functions of that writ.

The +round upon which the petition rests %ay e reduced to three propositions. (1) That the assi+n%ent of the

Au-iliary ud+e, Si-to de la #osta, to $u%a+uete was %ade with the understandin+ that the he was to hear

and tae co+ni?ance of all election contests and cri%inal causes for violation of the election law and that the

respondent /ud+e was to tae co+ni?ance of the ordinary cases and that there was an understandin+ etween

the% that this arran+e%ent was to e followed.

(2) That the respondent /ud+e too +reat interest and an active part in the filin+ of the cri%inal

char+es a+ainst the petitioners herein to the un/ustifiale e-tent of appointin+ a deputy fiscal who

filed the proper infor%ations when the re+ular provincial fiscal refused to file the% for lac of

sufficient evidence.

(3) That the respondent /ud+e is already over ; years of a+e and has, therefore, auto%atically

ceased as /ud+e of the #ourt of 4irst 8nstance of *riental Be+ros and that he is neither a /ud+e de

3ure nor de facto.

(a) "ut little need e said as to the first proposition. A writ of prohiition to a /ud+e of an

interior court will only lie in cases where he acts without or in e-cess of his /urisdiction

(section 22;, #ode of #ivil 0rocedure), and it is ovious that a %ere !understandin+! as

to the distriution of cases for trial did not deprive the respondent /ud+e of the

/urisdiction conferred upon hi% y law. 8t %ay e noted that it is not alle+ed that

another /ud+e had taen co+ni?ance of the cases in uestion or that they had een

definitely assi+ned to trial efore such other /ud+e.

() The second proposition is eually untenale.:a!ph


12/33

8n these circu%stances the re%edy prayed for cannot e +ranted. !The ri+htful authority of a /ud+e, in the full

e-ercise of his pulic /udicial function, cannot e uestioned y any %erely private suitor, nor y any other,

e-ceptin+ in the for% especially provided y law. A /ud+e de facto assu%es the e-ercise of a part of the

prero+ative of soverei+nty, and the le+ality of that assu%ption is open to the attac of the soverei+n power

alone. Accordin+ly, it is a well estalished principle, datin+ fr o% the earliest period and repeatedly confir%ed

y an unroen current of decisions, that the official acts of a de facto /ud+e are /ust as valid for all purposes

as those of a de 3ure /ud+e, so far as the pulic or third persons who are interested therein are concerned. The

rule is the sa%e in civil cri%inal cases. The principle is one founded in policy and convenience, for the ri+ht of

no one clai%in+ a title or interest under or throu+h the proceedin+s of an officer havin+ an apparent authority

to act would e safe, if it were necessary in every case to e-a%ine the le+ality of the title of such officer up to

its ori+inal source, and the title or interest of such person were held to e invalidated y so%e accidental

defect or flaw in the appoint%ent, election or ualification of such officer, or in the ri+hts of those fro% who%his appoint%ent or election e%anated: nor could the supre%acy of the laws e %aintained, or their e-ecution

enforced, if the acts of the /ud+e havin+ a colorale, ut not a le+al title, were to e dee%ed invalid. As in the

case of /ud+es of courts of record, the acts of a /ustice de facto cannot e called in uestion in any suit to

which he is not a party. The official acts of a de facto /ustice cannot at taced collaterally. An e-ception to the

+eneral rule that the title of a person assu%in+ to act as /ud+e cannot e uestioned in a suit efore hi% is

+enerally reco+ni?ed in the case of a special /ud+e, and it is held that a party to an action efore a special

/ud+e %ay uestion his title to the office of a /ud+e on the proceedin+s efore hi%, and that the /ud+%ent will

e reversed on appeal, where proper e-ceptions are taen, if the person assu%in+ to act as special /ud+e is

not a /ud+e de 3ure. The title of a de facto officer cannot e indirectly uestioned in a proceedin+ to otain a

writ of prohiition to prevent hi% fro% doin+ an official act nor in a suit to en/oin the collection of a /ud+%ent

rendered y hi%. Cavin+ at least colorale ri+ht to the office his title can e deter%ined only in a uo warranto

proceedin+ or infor%ation in the nature of a 2uo !arranto at suit of the soverei+n.! (1 R. #. E., pp. 1&621.)

The de%urrer to the petition is sustained, and inas%uch as it is evident that the weaness of the petitioncannot e cured y a%end%ent the present proceedin+s are herey dis%issed with the costs a+ainst the

petitioners /ointly and severally. The preli%inary in/unction hereinefore issued is dissolved. So ordered.

G.R. No. L;37471 J#nu#- 2, 190

DUL!ISIO TONG!O JANDAYAN, petitioner,

vs.

T%E %ONORABLE JUDGE FERNANDO S. RUI", # E'e(u)*+e Ju$8e, !ou) o F*) In)#n(e o Boo6

T%E !%IEF OF POLI!E, An$#, Boo6 #n$ !ANDELARIA ARANA, respondents.

FERNANDO, C.J.:

A resort to a haeas corpus proceedin+ would not have een necessary had there een a little %ore attention

paid to the authoritative doctrine. 0etitioner, $ulcisi%o Ton+co andayan, had to e confined in the "ohol

provincial /ail on uly 1;, 1&73 when respondent ud+e 4ernando S. Rui? of the court of the 4irst 8nstance of

"ohol 1 pro%ul+ated the sentence in the accordance with a decision of the then /ud+e 0aulino 'arue?, dated

une 22, 1&73, notwithstandin+ the undeniale fact that such /ud+e had retired y reason of a+e as far ac

as une 27, 1&73. This, then is essentially a proper case for the invocation of the +reat writ of lierty, althou+h

counsel for petitioner did liewise lael his pleadin+ as one for certiorari and mandamus. 8t is re+rettale that

respondent /ud+e failed to yield deference to the authoritative controllin+ doctrine as to the co%petence of a

/ud+e to continue dischar+in+ the functions of his office after retire%ent. 8t is co%%endale of Solicitor eneral

stelito 0. 'endo?a 2 then, that when reuired to co%%ent, he %ade clear that he was in a+ree%ent with

petitioner and that the pro%ul+ation of the sentence %ade on uly 1;, 1&73 y respondent ud+e on the asis

of what purportedly was a decision of the retired ud+e 0aulino 'arue? should e set aside and that

petitioner should e released fro% confine%ent without pre/udice to the proceedin+s ein+ continued

accordin+ to law. That, in the opinion of the #ourt, is liewise the proper disposition of this case.

The facts, as succinctly set forth in the co%%ent of the Solicitor eneral follows !*n 'ay 1H, 1&73 petitioner

was convicted of Serious 0hysical 8n/uries throu+h Recless 8%prudence y the 'unicipal #ourt of Eoay,

"ohol and sentenced to suffer three (3) %onths of Arrests 'ayor. *n appeal, the case (#ri%. #ase Bo. 7H;)

was raffled to the #48 of "ohol, "ranch 1, presided over y the Conorale 0aulino 'arue?. *n une 2;,

1&73, an order was served on petitioner that the pro%ul+ation of the decision would tae place on uly ;,

1&73. *n une 27, 1&73, ud+e 0aulino 'arue? retired fro% service. ... pon %otion of counsel for petitioner,

the pro%ul+ation of decision was postponed fro% uly ; to uly 12. 4inally on uly 1;, 1&73, the decision

dated une 22, 1&73 as prepared and si+ned y ud+e 'arue? was pro%ul+ated y respondent ud+e.! 3

Fhat other conclusion, then. could such facts lead to e-cept the followin+, as set forth in the aove co%%ent

of the Solicitor eneral !8n the li+ht of ... settled rulin+s, the pro%ul+ation %ade y respondent /ud+e on uly1;, 1&73 of the decision dated une 22, 1&73, si+ned and prepared y ud+e 'arue? who retired on une

27, 1&73 is su%itted to e null and void.! 4 Fe are in a+ree%ent, as earlier noted, and we +rant the petition.

There are areas in the /uristic sphere where the dividin+ line is oscure, ut certainly not this one, e-cept, it

would see%. for respondent ud+e. There is no real need to plot it on the le+al %ap for those whose

nowled+e of the terrain of the law rises aove the superficial. As so tersely put y the then ustice, later #hief

ustice, #esar "en+?on !Fe have then that, le+ally, the decisions of ud+e 'aOalac were pro%ul+ated on

uly 3, 1&@. Fherefore, ecause he had left the "ench efore that date, his decisions have no indin+

effect.! Such a doctrine +oes ac to a 1&17 decision, (ino (una . +odrigue8 . / 8t did cite in support thereof

several leadin+ A%erican Supre%e #ourt decisions. 7 A recent case, Jimene8 . +epu%lic , applies with even

%ore pertinence. The antecedent facts, as set forth in the opinion of ustice An+eles, follow !duardo

i%ene?, herein petitioner, to+ether with others, was char+ed with ho%icide in an infor%ation, dated 'ay 13,

1&;H, efore the #ourt of 4irst 8nstance of Ri?al, cri%inal case Bo. &31, of said court. The case was heard

and tried efore ud+e ulo+io 'encias, presidin+ one of the ranches of the court . Ad%ittedly, the decision

prepared and si+ned y ud+e 'encias was delivered to the cler of court on anuary 1;, 1&;, *n the sa%edate, the cler of court issued and served notice on the petitioner to appear in court on anuary 21, 1&; for

the pro%ul+ation of the sentence. 8n view that anuary 21, was declared y the 0resident a special holiday, the

pro%ul+ation of the decision could not e carried out on that day. *n anuary 21, 1&;, ud+e ulo+io

'encias had reached the a+e of 7H and was retired on that day fro% the ench. Respondent ud+e 0edro

Bavarro was i%%ediately desi+nated to tae the place of ud+e 'encias The for%er /ud+e ordered that the

sentence e pro%ul+ated on anuary 2&, 1&;, ut for so%e reason, it was postponed to 'arch 1,

1&;.! 9 0etitioner i%ene? filed a %otion to set aside the decision as well as. its pro%ul+ation an the +round

of ud+e 'encias havin+ retired. Respondent ud+e, however, denied the %otion, necessitatin+ the filin+ of a

petition for certiorari and prohiition. The concludin+ para+raph of the opinion reads !Fe hold that the

decision rendered y the retired ud+e ulo+io 'encias cannot e validly pro%ul+ated and acuire a indin+

effect for the sa%e has eco%e null and void under the circu%stances.! 10

The latest case in point is Vera . People, 11 where it was noted y this #ourt that a decision of a /ud+e

pro%ul+ated after his retire%ent could have een set aside on the authority of the aove two cases of People. Court of Appeals 12 andJimene8 . +epu%lic , 13 e-cept for their non6applicaility in view of the failure to raise

such an o/ection in the lower court as well as in the #ourt of Appeals. There was no thou+ht, however, of

deviatin+ fro% the principle that a /ud+e who had retired had no le+al authority to pro%ul+ate a decision. 14

That is all then that this case presents, and it is uite ovious that there was no /ustification not even a

plausile e-planation, for the unwarranted action taen y respondent ud+e in the face of such co%pellin+

/uristic nor%.

This #ourt did not feel the need for decidin+ the petition earlier considerin+ the co%%ent filed y the

respondent #hief of 0olice of Anda, "ohol, in the li+ht of its last two para+raphs. Thus !That as a %unicipal

prisoner, petitioner $ulcisi%o Ton+co andayan had served the rest of his sentence in the %unicipal /ail of

Anda "ohol fro% Au+ust 1@, 1&73 to *ctoer , 1&73 when the undersi+ned respondent in his capacity as and

#hief of 0olice of Anda "ohol released pri soner $ulcisi%o Ton+co andayan for havin+ fully served out his

sentence: and that the undersi+ned only new of petitionerIs present petition and received the different copiesof the pleadin+s and, resolutions fro% the Conorale Supre%e #ourt =only after> the undersi+ned has already


13/33

released petitioner $ulcisi%o Ton+co andayan who had already fully served his sentence as said

aove.! 1 Cence the haeas corpus aspect was rendered t and acade%ic. Bonetheless, this opinion is

handed down to re%ove any dout that this #ourt adheres to the well6settled doctrine on the %atter at issue.

FCR4*R, this petition is dis%issed for ein+ %oot and acade%ic, petitioner havin+ een rel eased in the

%eanwhile. Bo costs.

G.R. No. L;70/ Ju6- 12, 1912

!ARROLL %. LAB, petitioner,

vs.

?.%. P%IPPS, # Au$*)o o )e P*6*55*ne I6#n$, respondent.

An8i =. >ell# for petitioner.

$ffice of the Solicitor1*eneral ?are# for respondent.

JO%NSON, J.

This was an application for the writ of mandamus presented to the Supre%e #ourt. The petition alle+ed that

8. Relator states that oth of the parties to this proceedin+ are within the /urisdiction of this court,respondent residin+ in the city of 'anila and is the duly appointed and actin+ Auditor for the

0hilippine 8slands: relator residin+ in the puelo of Tacloan, Eeyte, 0hilippine 8slands, and prior to

anuary 1, 1&12, was an e%ployee of said overn%ent as superintendent of the 8wahi+ 0enal

#olony.

88. Respondent, as the !8nsular Auditor,! has certain le+al duties to perfor% which are especially

en/oined y law or which are oli+atory upon hi% y virtue of his office as Auditor for the 0hilippine

8slands: and the said duties which relator desires coerced do not reuire on the part of said Auditor

the use of discretion: ut should this court decide that said duties are discretionary, then this relator

alle+es that respondentIs use of such discretion is e-ceptionally aritrary and ille+al.

888. 8t is the le+al duty of respondent to issue an auditorIs certificate (clearance) to any e%ployee or

a+ent of the overn%ent who has left the service, when the le+al records of the office of the

Auditor for the 0hilippine 8slands de%onstrate and show that the accounts of said e%ployee ora+ent are alanced and that said a+ent or e%ployee has properly accounted for all +overn%ent

property and funds which have co%e into his possession durin+ the ti%e of said e%ploy%ent. This

status of relatorIs accounts so e-ist, ut respondent, thou+h reuested oth verally and in writin+,

has failed and refused, and unlawfully ne+lected to issue said certificate (clearance) as a result

of which relator is unlawfully e-cluded fro% the use and en/oy%ent of two of his ri+hts

4irst. Fithout this clearance relator cannot collect fro% the overn%ent the a%ounts due hi% for

accrued leave, salary and transportation. (See note on -hiit #.)

Second. Fithout this clearance relator is deprived of his lierty and unale to leave these 8slands:

in fact, should necessity de%and his leavin+, and should he even atte%pt to leave, it would e a

cri%inal offense for hi% to do so. (Sec. ;;, #o%pilation of the acts o f the 0hilippine #o%%ission.)

8


14/33

The said F.C. 0hipps, as auditor, refused to issue said clearance for the aove noted period

ecause of the dan+er of a proale suit, application to rin+ which has not even een %ade, and

never will e +ranted, as to the last alle+ation in 0ara+raph


15/33

0ersonally appeared efore %e, the undersi+ned #. C. Ea%, who e-hiited to %e his cedula

certificate nu%ered D71, issued at 'anila dated 1K3HKH&, and who, ein+ duly sworn, deposes

and says, that he has rendered a full and co%plete accountin+ to the Auditor for the 0hilippine

8slands for all funds and property for which he has een accountale or responsile under the

provisions of e-istin+ law.

(Si+ned) #. C. EA'",

Supt. I. P. C.

Suscried and sworn to efo re %e at 'anila, 0. 8., this 11th day of

'arch, 1&11.

(Si+ned) #CAS. A. ST8ES, otar# Pu%lic.

'y co%%ission e-pires an. 1st, 1&13.

(Cere appears seal of #has. A. Stiles, notary pulic.)

8 herey acnowled+e receipt of duplicate copies of this affidavit, which is confir%ed y an

e-a%ination of the records of this date, of accounts6current and property returns as rendered and

received.

'anila, 0.8., 'arch 11, 1&11.

(Si+ned) F. A. RAB$AEE,

Acting Auditor.

"y #. A. ST8ES.

B*T. 8n these case of civil officers the proper disursin+ officer will withhold final pay until the

officerIs copy of this certificate is presented, duly si+ned y the auditor.

(Si+ned in duplicate.)

TC8S #RT848#AT 'ST " CE$ 8B RA$8BSS 4*R 0RSBTAT8*B, 84 #AEE$ 4*R,

0*B '"ARJAT8*B.

0C8E8008B 8SEAB$S,

Cit# of Manila, ss

#arroll C. Ea%, late superintendent of 8wahi+ 0enal #olony, states that he is the relator in the

proceedin+s: that he has read and is fa%iliar with the contents of each of the para+raphs of this

petition, and that the state%ents %ade herein, e-cept the conclusions of law and those uotations

appearin+ as %ade y the Auditor for the 0hilippine 8slands, are true and correct, and that the said

conclusion of law and the said state%ents %ade to the relatorIs attorney y said auditor are true to

the est of relatorIs nowled+e and elief.

(S+d.) #. C. EA'", +elator.

Sworn and suscried to efore %e this 1Dth day of 'arch, A. $. 1&12, y #. C. Ea%, whopresented cedula Bo. 463271&, issued at 'anila on 'arch 1&, 1&12.

(S+d.)


16/33

of mandamus, the de%urrer is sustained and the petitioner is authori?ed to a%end his

application within five days. 'essrs. ustices #arson and Trent dissent and 'r. ustice

Trent reserves the ri+ht to su%it later in writin+ his dissentin+ opinion.!

The aove very rief order of the court was directed y reason of the fact that it was the last day of the session

of the court for the anuary ter% of 1&12, and for the further reason that no %e%er of the court then had ti%e

to %ore fully state the reasons upon which said order was ased. 8n view of the i%portance of the uestion

presented, it is dee%ed advisale to %ore fully discuss the law relatin+ thereto. 8t %ay een noted that the

petitioner did not file an a%ended petition within the ti%e %entioned in the aove order. The facts involved in

the present case are stated in the petition. The %ateriality of the e-hiits is not uite clear. 8t is elieved that all

of the %aterial alle+ations of the petition which the relator intended to ma5e, eli%inatin+ all purely evidential

and i%%aterial alle+ations, %ay e fairly stated as follows, to wit

First , that the relator had een for a period of four years the superintended of the 8wahi+ 0enal #olony. (See

para+raphs 1, @ and & of the petition.)

Second , that the relator has rendered an account for all property and funds of the overn%ent which have

co%e into his possession. (See para+raphs 3 and D of the petition.)

"hird , that it is the le+al duty of the respondent as Auditor for the 0hilippine 8slands to issue an AuditorsI

certificate (clearance) to any e%ployee or a+ent of the overn%ent who has left the service, when

the records of the office of the Auditor show that the accounts of said e%ployee or a+ent are alanced and that

said e%ployee or a+ent has properly rendered an account for all overn%ent property and funds which have

co%e into his possession durin+ the ti%e of said e%ploy%ent. (See para+raph 3 of the petition.)

'AB8B *4 A$8T*RIS #RT848#AT *R #EARAB#.

"efore discussin+ the rules of law controllin+ in the present case, a word or e-planation of what is %eant y

the AuditorIs certificate (clearance) %ay e of assistance to a etter understandin+ of the purpose of the

present petition. Act Bo. 1;H of the 0hilippine #o%%ission provides that no onded officer or onded

e%ployee of the 8nsular overn%ent, or of any provincial or %unicipal +overn%ent in the 0hilippine 8slands, or

of the city of 'anila, whether in the actual service of such overn%ent or separated therefro%, shall leave or

atte%pt to leave the 0hilippine 8slands without first securin+ a certificate (clearance) fro% the Auditor showin+

that his accounts with the overn%ent of which he is or was such onded officer or onded e%ployee have

een finall# settled y said Auditor. Said Act further provides that any such officer or e%ployee violatin+ of the

provision of this Act shall, on conviction thereof, e punished y i%prison%ent for not e-ceedin+ si- %onths or

y a fine of not %ore than 01,HHH or oth, in the discretion of the court.

$urin+ the ar+u%ent of the present cause, the attorney for the relator stated that he could not leave or atte%pt

to leave the 0hilippine 8slands, without renderin+ hi%self liale to a cri%inal prosecution under and y virtue of

said Act (Bo. 1;H), without havin+ the AuditorIs certificate or clearance. 8t will e noted upon readin+ the

petition that there is no word or inti%ation therein indicatin+ in any way (e-cept the alle+ation that the relator

had een the custodian of overn%ent property and funds) that he was a onder officer. nless he was a

onded officer or e%ployee of the overn%ent, said Act does not apply to hi% and there is no necessity for a

clearance. Said Act (Bo. 1;H) only applies to %onded officers of emplo#ees. 8t %ay e assu%ed, however, for

the purposes of the present case, that the relator was a onded officer or e%ployee of the 0hilippine

overn%ent and that in the asence of the AuditorIs certificate or clearance he %i+ht e su/ected to a

cri%inal action under said Act (Bo. 1;H) if he atte%pted to leave the 0hilippine 8slands without said certificate.

$TG *4 TC A$8T*R 8B A00R*


17/33

e-ecutive ranches of the overn%ent e-cept when an appeal therefro% is taen y the a++rieved party or

the head of the depart%ent concerned !ithin one #ear . nder the law of the 0hilippine 8slands, the Auditor

+enerally has lie authority as that conferred y law upon the several auditors of the States of the nited

States and the #o%ptroller of the nited States Treasury. (See sec. ;, Act Bo. 17&2.) Sections 2@ to 3; of Act

Bo. 17&2 provide in %ore or less detail a %ethod of accountin+ for funds and property of the 0hilippine

overn%ent in its various ranches and for the settle%ent of such accounts. Section 2& provides that even

after accounts have een settled, the Auditor, on account of fraud, collusion, error in calculation, or newly

discovered %aterial evidence, or when in his /ud+%ent the interests of the overn%ent %ay see% to reuire it,

is authori?ed within three years after the ori+inal settle%ent, to reopen any account previously settled y hi%

or y a district auditor, and, after written notice to the person involved, and after a reasonale ti%e for the reply

or appearance of said person, to certify thereon a new alance.

The fore+oin+, in a %ost +en eral way, points out the duties of the Auditor for the 0hilippine 8slands. Cis duties

%ay e restated riefly as follows (a) Ce has e-clusive /urisdiction to e-a%ine, audit and settle all accounts

pertainin+ to the revenues and receipts fro% whatever source of the 8nsular overn%ent, the city of 'anila,

the provinces, the %unicipalities, the townships, the settle%ents, or any other +overn%ental ranch: and ()

his decisions arefinal and conclusive except !hen an appeal is taen therefro% within one year. (Secs. 2, ;,

Act Bo. 17&2.) Section 3; of Act Bo. 17&2 provides that when any person is a++rieved y the action or

decision of the Auditor in the settle%ent of his accounts or clai%s, that such person, within one year, %ay tae

an appeal in writin+ to the overnor6eneral, which appeal shall specifically set forth the particular action of

the Auditor to which e-ception is taen, with the reasons and authorities relied upon for a reversal of the action

or decision of the Auditor. 8f the overnor6eneral shall confir% the action of the Auditor, he shall so endorse

the appeal and trans%it it to the Auditor and the action shall thereupon e final and conclusive. Should the

overnor6eneral refuse to sustain or approve the action of the Auditor, he shall forthwith trans%it his +rounds

of disapproval of the Secretary of Far, to+ether with the appeal and papers necessary to a proper

understandin+ of the %atter. "he decision of the Secretar# of Bar in such cases shall %e final and conclusie.

To recapitulate then, we elieve that the followin+ propositions relatin+ to the power and /urisdiction of the

Auditor in auditin+ the accounts for the different +overn%ental entities of the 0hilippine 8slands are true, to wit

First , that the Auditor for the 0hilippine 8slands has exclusie /urisdiction in the first instance to e-a%ine, audit,

and settle all accounts pertainin+ to the revenues and receipts fro% whatever source of every +overn%ental

entity within the 0hilippine 8slands.

Second , that his decision or the result of his accountin+ upon such revenues and receipts and accounts is final

and conclusive upon all parties unless an appeal is taen within a period of one year.

"hird , that the overnor6eneral of the 0hilippine 8slands (See sec. 3;, Act Bo. 17&2) is not possessed with

power to revoe or alter or %odify the results of accountin+s %ade y the Auditor without reference to the

Secretary of Far.

Fourth, that when an appeal is taen to the overnor6eneral and the latter disapproves of the accountin+

%ade y the auditor, he %ust at once forward to the Secretary of Far for final action the %atter in controversy.

8f, then, the Auditor for the 0hilippine 8slands is possessed with e-clusive and final /urisdiction to audit all

accounts of the 0hilippine overn%ent, and if his 3udgment is final unless an appeal therefro% is taen and

finally reversed y the Secretary of Far, it would see% to e a reasonale conclusion to hold that he has at

least a certain discretion in arriing at an uncontrolled and independent conclusion as to any accountaility of

any accountale e%ployee or official of the 0hilippine overn%ent.

The uestion which are now discussin+ is not a new one.


18/33

to act. 8f he douts, he has a ri+ht to call on the attorney6+eneral to assist hi% with his counsel: and

it would e difficult to i%a+ine why a le+al adviser was provided y law for the heads of

depart%ents, as well as for the 0resident, unless their duties were re+arded as e-ecutive in which

/ud+%ent and discretion were to e e-ercised. (Jendall s. . S., 12 0et., 2@.)

The statutes of the nited States reuire the #o%ptroller to e-ercise his /ud+%ent upon the le+ality, not only of

provisions of law and resolutions of #on+ress providin+ for the pay%ent of %oney, ut they also provide the

%eans of procurin+ testi%ony upon which he %ay act. The statutes also provide hi% with counsel to enli+hten

hi% if he should dee% it proper to e-tend his investi+ation eyond the papers su%itted with the clai% or

account. (See Rev. Stat. of . S., secs. 1 D@ 1D7, 2;&, 277.) Ce (the Auditor or #o%ptroller) is reuired to

certify alances due in f avor or a+ainst the +overn%ent. To certify is to %ae certain. To %ae a certificate is to

e-ercise /ud+%ent and discretion. Ce is reuired to render decisions upon the le+ality of clai%s, and his

conclusions are not mere opinions. 8f they were %ere opinions, they would not e final. 8n renderin+ decisions,

/ud+%ent and discretion %ust necessarily e e-ercised. A decision is y the law presu%ed to e %ade after an

intelli+ent scrutiny of all the facts: has een %ade. 8n the dischar+e of his duty (Auditor or #o%ptrollerIs) he is

a /ud+e not only of the law ut of the facts: and he would not e /ustified in acceptin+ the views, opinions,

findin+s or rulin+s of any other officer of the +overn%ent upon the clai%s or vouchers ad%itted. 8n the

perfor%ance of his duties, the Auditor is not su/ect to the /urisdiction of any officer of the e-ecutive ranch of

the +overn%ent nor to that of any court of the /udicial ranch. Ce is not a %ere %achine to re+ister or lindly

e-ecute the opinions or acts of other officers in %atters which pertain, y the laws of the fiscal syste% of the

+overn%ent, y well defined pulic policy, and y lon+ practice, to the /urisdiction of the accountin+ officer a

/urisdiction which it is his duty to %aintain, even in cases in which its e-istence %ay e doutful.

(.S. s. Arredondo et al., ; 0et., ;D&, 72&.) The le+islative depart%ent of the +overn%ent would not have

%ade the decisions of the Auditor final, unless an appeal is taen therefro%, without intendin+ to +ive to the

Auditor an uncontrollale discretion in full e-a%inin+ and scrutini?in+ every account presented a+ainst the

overn%ent. The power to certify a alance, for a lie reason, includes the authority to review and decide all

uestions of law and fact, and to use all sources of infor%ation for that purpose. A settle%ent of an account

and a certificate of a alance which cannot +o to the sources of evidence and e-a%ine all uestions of law

and fact would e practically no e-a%ination.

8n the case of Eon+will s. nited States (17 #ourt of #lai%s, 2&1) it was said

The accountin+ officers of the treasury are in duty ound to scrutini?e clai%s and accounts with

+reat care, as is their custo%s, and it is the undouted ri+ht of those who have authority to decide

thereon to re/ect in whole or in part, ad their /ud+%ent dictates, all those clai%s which they have

reasonale cause to suspect are tainted with fraud or to which they elieve there %ay e

sustantial defects in law or as to the validity of which they are in dout.

8n the case of "oard of Eiuidation et al. s. 'c#o% (&2 . S., @1) the court said

The o/ections to proceedin+s a+ainst state officers y mandamus or in/unction are 4irst, that it is,

in fact, proceedin+ a+ainst the State itself: and, second, that it interferes with the official discretion

vested in the officers. 8t is conceded that neither of this thin+s can e done . A State, without its

consent, cannot e sued y an individual, and a court cannot sustitute its own discretion for that

of e-ecutive officers in %atters elon+in+ to the proper /urisdiction of the latter.

For the courts to re2uire an auditor to allo! or disallo! a clai% a+ainst or in favor of the overn%ent would e

to sustitute the courts as the auditin+ officers of the overn%ent. Such a result was not conte%plated y a

law, which conferred upon another depart%ent of the overn%ent the final and exclusie 3urisdiction to

consider claims. (Jendall s. . S., 12 0et., 2@: The "orou+h of niontown s. The #o%%onwealth of

0ennsylvania, 3@ 0a., 2&3: Carersha% et al. s. Savannah etc. #anal #o., 2; a., ;;: State of 8owa

etc. s. #ounty ud+e etc., 7 8owa, 1D;.)

nder the statutes of the nited States the co%ptroller is y e-press statute authori?ed to e-a%ine accounts

and to certify alances thereon. The e-ercise of this power necessarily involves the e-ercise of /udicial

discretion. udicial action cannot e su/ect to any control or direction, e-cept y law, or y an appeal. 8t is

independent of all control e-cept y law. The authority so +iven y statute should e e-ercised with that

untra%%eled independence of /ud+%ent which is essential to its proper e-ercise.

8n the case of the nited States s. Eynch (137 . S., 2DH), a petition was presented in which it was alle+ed

That the respondents (the co%ptrollers) have refused, and still do continue to refuse, to pay the

petitioner, or to credit hi% with, the su% of P2DD.;H, that ein+ the a%ount re%ainin+ unpaid on the

said travel under the said Act of #on+ress.

To this petition the respondents (the co%ptrollers) de%urred upon the followin+ +round

That mandamus will not lie a+ainst an officer of the Treasury $epart%ent for refusal to allow and

pay a clai% a+ainst the united States, for, however oviously without le+al /ustification his refusal

%ay e, amandamus a+ainst hi% to co%pel such allowance and pay%ent is none the less in effect

a suit a+ainst the nited States.

8n passin+ upon the ri+ht of the relator to the writ of mandamus, 'r. #hief ustice 4uller, speain+ for the court

and citin+ the case of $ecatur s. 0auldin+ (1@ 0et., @&7), supra, said

8t is now ar+ued that the duty of the 4ourth Auditor and of the Second #o%ptroller under the last

clause of section 2 of the Act of 1D3, and the decision of this court in relation to it, was %erely%inisterial, and that y the disallowance of relatorIs clai% for %ilea+e these officers e-ercised a

discretion which they did not posses: that this was an invalid e-ercise of an authority under the

nited States: and that hence the validity of the authority was drawn in uestion. . . .

Fe thin that the authority of the second co%ptroller and the fourth auditor is not thus denied here,

nor the validity of that authority uestioned, ut that what his clai% is that in the e-ercise of a valid

authority, the Auditor and #o%ptroller erred in respect to an allowance, in view of the decision of

this court in another case.

The writ of error %ust e dis%issed and it is so ordered.

8n the case of Riverside *il #o. s. Citchcoc (1&H . S., 31;), the relator presented a petition in the Supre%e

#ourt of the $istrict of #olu%ia asin+ for a writ of mandamus to co%pel the respondent, the Secretary of the

8nterior, to vacate a certain order %ade y hi% in relation to the disposition of pulic lands. 'r. ustice

0echa%, speain+ for the court and citin+ a+ain the case of $ecatur s. 0auldin+, supra, said

That the decision of the uestions presented to the Secretary of the 8nterior was no %erely for%al or

%inisterial act is shown eyond the necessity of ar+u%ent y a perusal of the fore+oin+ state%ents of the

issues presented y this record for the decision of the Secretary. Bhether he de decided right or !rong is not

the 2uestion. Cavin+ /urisdiction to decide at all, he had necessarily /urisdiction, and it was his duty to decide

as he thou+ht the law was, and the courts have no power whatever under those circu%stances to review his

deter%ination ymandamus.

8n this case the Supre%e #ourt of the $istrict of #olu%ia refused to issue the mandamus, and the Supre%e

#ourt of the nited States affir%ed that decision.

The writ of mandamus cannot e used to control the 3udgment and discretion of an officer in the decision of aa %atter which the law +ave hi% the power and i%posed upon hi% the dut# to decide for hi%self.


19/33

8n the case of "ates and uild #o. s. 0ayne (1&@ . S., 1H,) an application was %ade for the writ

of mandamusto co%pel 'r. 0ayne, then 0ost%aster6eneral of the nited States, to receive and trans%it

throu+h the %ails, as %atter o f the second class, a cer tain periodical nown as !'asters of 'usic.! 'r. ustice

"rown, speain+ for the court, said

That were the decision of uestion of fact is co%%itted y #on+ress of the /ud+%ent and discretion

of the head of a depart%ent, his decision thereon is conclusie unless the la! allo!s an appeal .

Fith reference to the power of #o%ptrollers of the Treasury of the nited States, it %ay e said that they are

e e-press statute authori?ed to e-a%ine accounts and to certify alances thereon. (. S. Rev. Stat., sec.

2;&.) The e-ercise of this power involves /udicial discretion. udicial action cannot e su/ect to any control ordirection e-cept y law and continue to e /udicial action. 8t is independent of all control e-cept y law or

otherwise it cannot e /udicial. The authority so +iven should e e-ercised with that untra%%eled

independence of /ud+%ent which asolutely essential to its proper e-ercise.

8t will e noted that what has een said with reference to the independence of the #o%ptroller of the nited

States Treasury is also applicale to the Auditor for the 0hilippine 8slands for the reason that section ; of Act

Bo. 17&2 provides that he shall have lie authority as that conferred y law upon the several auditors of the

states of the nited States and the #o%ptroller of The nited States Treasury. Fe have hitherto cited authority

fro% the court of the nited States. 8t will e interestin+ to now what the authors and law writers have said

upon this uestion.

$r. a%es E. Ci+h, one of the clearest A%erican Eaw writers, in his valuale wor on !-traordinary Ee+al

Re%edies! (3rd ed.) in section 1H2, after discussin+ the ri+ht of the courts to coerce the perfor%ance of purely

%inisterial duties, says

Fhere, however, auditin+ officers entrusted y law with the duty of passin+ upon and deter%inin+

the validity of clai%s a+ainst the state, are vested with powers of discretionary nature as to the

perfor%ance of their duties, a different rule fro% that aove stated prevails. 8n such cases the

funda%ental principle denyin+ relief y mandamus to control the e-ercise of official discretion

applies, and the officers havin+ e-ercised their /ud+%ent and decided adversely to a

clai%ant, mandamus will not lie to control their decision or to co%pel the% to audit and allow a

re/ected clai%. The re%edy, if any, for such a +rievance, %ust e sou+ht at the hands of the

le+islature, and not of the courts. (Auditorial "oard s. Arles, 1 Te-., 72: Auditorial

"oard s. Cendric, 2H Te-., ;H: Towle s. State, 3 4la., 2H2: State s. $oyle, 3D Fis., &2:

0eople s. Auditor of #olorado, 2 #olo., &7: State s. *liver, 11; 'o., 1DD: "urton s. 4ur%an, 11

B.#., 1H;: Failes s. S%ith, 7; 'd., @;&: State s. "acoc, 22 Be., 3D: State s. "oyd, 3; Be.,

;H.) specially will relief y mandamus e refused in such cases when the party a++rieved has

a plain and ade2uate remed# y appeal fro% the refusal of the auditin+ officer to allow his clai%.

And when a state co%ptroller is vested with certain discretionary powers in the ad/ustin+ and

settle%ent of de%ands a+ainst the state, he cannot e co%pelled to issue his warrant or liuidate

said clai% for the pay%ent of a particular su%, nor will the writ +o to co%pel an officer to audit a

clai% unless it is clearly his du ty to do so. (Failes s. S%ith, 7; 'd., @;&: $rew s. Russel, @7

See also the followin+ cases ($anley s. Fhitely, 1@ Ar., ;D7: 0eople s. #olorado Territorial Auditor, 2 #olo.,

&7: State s. Tho%pson, @1 'o., 13: State s. "arnes, 2 4la., 2&D (23 A%. St. Rep., 1;) Failes s. S%ith,

7; 'd., @;&: Eewri+ht s. Eove, & Te-., 17: 0eople s. Ada%, 3 'ich., @27: "urton s. 4ur%an, 11 B.#.,

1;;: #ounty of San Euis *ispo s. a+e, 13& #al., 3&D: 0eople s. Roerts, 1;3 B. G. 7H: Rut+ers

#olle+e s.'or+an, 71 B. . E., ;;3 B. G. Bolan, D Eea, ;;3: 0eople s. Attorney6eneral, @1 'ich., 72D:

Tho%pson s.Fatson, @D *hio, 2: wan s. Turner, 13@ B. #., 77: State "oard of $ental

-a%iners s. 0eople, 123 8ll., 227: State s. Slocu%, 3@ Be., 3;D.)

An e-a%ination of the decisions of the Supre%e #ourt of the 0hilippine 8slands will show that it has followed

the +eneral rule aove noted with reference to the issuance of mandamus. The +eneral rule adopted y theSupre%e #ourt of the 0hilippine 8slands is that mandamus will never e issued (a) to control discretion, nor (%)


20/33

when another adeuate re%edy e-ists. (See Jni+ht s. 'c'icin+, 2 0hil. Rep., ;&D: 'anotoc s. 'c'icin+,

1H 0hil. Rep., 11&: #ru? Cerrera s. 'c'icin+, 1@ 0hil. Rep., ;@1: on?ale? y Sala?ar s. The "oard of

0har%acy, 2H 0hil. Rep., 3;7.) 8n this latter case, it was said

8s it essential to the issuance of a writ of mandamus that the plaintiff have a clear le+al ri+ht to the

thin+ de%anded and it %ust e the i%perative duty of the defendant to perfor% the act reuired. 8t

never issues in doutful cases. Fhile it %ay not e necessary that the duty e asolutely e-press,

it is necessary that it should e clear. The writ will not issue to co%pel an official to do anythin+

which it is not his duty to do or which it is his duty not to do, or to +ive the applicant anythin+ to

which he is not entitled y law. The writ neither confers power n or i%poses duties. 8t is si%ply a

co%%and to exercise a po!er alread# possessed and to perform a dut# alread# imposed .

(#alvo s. utierre?, @ 0hil. Rep., 2H3.)

The writ of mandamus cannot e used to control the discretion of a /ud+e or to co%pel hi% to decide a case or

a %otion pendin+ efore hi% in a particular way. Ce %ust e left to e-ercise the discretion which the law

i%poses upon hi%. ('erchant s. Rosario, @ 0hil. Rep., 31;: 'ace et al. s. #a%ps, 0hil. Rep., 1D:

$erunner s.ara%illo, 12 0hil. Rep., 31;.)

$8S#RT8*B $48B$.

$iscretion %ay e defined as !the act or the lierty to decide accordin+ to the principles of /ustice and oneIs

ideas of what is ri+ht and proper under the circu%stances, without wilfullness or favor.! (standard $ictionary,

ed. 1&11.) 'r. Fester defines discretion as the !freedo% to act accordin+ to oneIs own /ud+%ent:

unrestrained e-ercised of choice or will.!

'r. "lac in his valuale law dictionary says

$iscretion, when applied to pulic functionaries, %eans a power or ri+ht conferred upon the% y

law of actin+ officially in certain circu%stances, accordin+ to the dictates of their own /ud+%ent and

conscience, uncontrolled y the /ud+%ent or conscience of others. . . .

Eord #oe defined discretion to e !discernere per legem 2uid sit 3ustum.!

'r. "ouvier defines discretion as follows

That part of the /udicial function which decides uestions arisin+ in the trial of a cause, accordin+ to

the particular circu%stances of each case, and as to which the /ud+%ent of the court is

uncontrolled y fi-ed rules of law. The power e-ercised y courts to deter%ine uestion to which

no strict law is applicale ut which, fro% their nature, and the circu%stances of the case, are

controlled y the personal /ud+%ent of the court.

ud+e Sanorn, in his article on mandamus (2; #yc., 1;1) defines discretion, when applied to pulic

functionaries, as the power or ri+ht conferred upon the% y law actin+ officially under certain circu%stances,

accordin+ to the dictates of their own /ud+%ent or conscience and not controlled y the /ud+%ent or

conscience of others. (4arrelly s. #ole, ;H Jan., 3;, @@ E. R. A., @;@: State s. Cult?, 1H; 'o., @1: *neida

#o%%on 0leas s.0eople, 1D Fend., 7&: Rio rande #ounty s. Eewis, 2D #olo., 37D.)

'8B8STR8AE $TG $48B$.

A purely %inisterial act, in constradistinction to a discretional act, is one which an officer or triunal perfor%s in

a +iven state of facts, in a prescried %anner, in oedience to the %andate of le+al authority, without re+ard toor the e-ercise of his own /ud+%ent upon the propriety of i%propriety if the act done. ( Ex parte "atesville etc.

Ry. #o., 3& Ar., D2, D: A%erican #asualty 8ns. #o., s. 4yler, ;H #onn., @@D, 2 A%. St. Rep., 337:

ray s. State, 72 8nd., ;7: 4lournoy s. effersonville, 7& A%. $ec., @;D: State s. #oo, 17@ 'o., 1HH:

'arcu% s. Eincoln #o. etc., @2 F.


21/33

Fhen the co%plaint in an action in a #ourt of 4irst 8nstance alle+es that any inferior triunal,

corporation, oard, or person unlawfully ne+lects the perfor%ance of an act which the law specially

en/oins as a duty resultin+ fro% an office, trust, or station . . . and the court, on trial, finds the

alle+ations of the co%plaint to e true, it %ay, if there is no other plain, speedy and adeuate

re%edy in the ordinary courts of law, . . . .

8t is asserted that the phrase !courts of law! should read !course of law.! 'any of the provisions of said Act Bo.

1&H were copied verati% fro% the #ode of #ivil 0rocedure of #alifornia. Section 222 of Act Bo. 1&H was

taen fro% section 1HD of the #alifornia #ode of #ivil 0rocedure. The section of the #alifornia #ode reads

!course of law,! instead of !courts of law.! Fe elieve that a %istae or error has een %ade in the printin+ of

said section. Fe elieve that it was the intention of the le+islative depart%ent of the +overn%ent to follow

e-actly the provision of the #alifornia #ode and that they intended to use the phrase !course of law! and not

!courts of law.! 8t will e noted in section 22;, the section relatin+ to the writ of prohiition, the le+islature used

the phrase !course of law.! An e-a%ination of the Spanish translation of said section (222) %ore clearly

indicates what the le+islative depart%ent of the +overn%ent intended. 8n spanish the other re%edy is not

li%ited to the ordinary !courts of law.! Fe are per%itted under Act Bo. ;3 as a%ended y Act Bo. 17DD to refer

to the Spanish te-t, for the purpose of e-plainin+ the n+lish te-t. Act Bo. 17DD provides

8n the construction of all Acts or laws which %ay e enacted y the 0hilippine Ee+islature, the

n+lish te-t shall +overn, e-cept that in ovious cases of a%i+uity, o%ission, or %istae the

Spanish te-t %ay e consulted to e-plain the n+lish te-t.

Fe cannot elieve that the le+islature intended to li%it the /urisdiction of this court in mandamus to the cases

where there was no other adeuate and speedy re%edy in the ordinary courts of law. 8t is our dut y, therefore,

to +ive the statute a sensile construction: such as will effectuate the le+islative intention and, if possile,

avoid an in/ustice or an asurd conclusion (Eau *w "ew s. . S., 1@@ . S., @7, &). #lerical errors or

%isprints, which, if uncorrected, would render the statute un%eanin+ or nonsensical or would defeat or i%pair

its intended operation, will not vitiate the act: they will e corrected y the court and the statute read as

a%ended, provided the true %eanin+ is ovious, and the real %eanin+ of the le+islature is apparent of the face

of the whole enact%ent. ("lac on 8nterpretation of Eaws, p. 77: Eancaster, s. 4rey, 12D 0a., &3: Eancaster

#ounty s. #ity of Eancaster, 1;H 0a., @11.)

Since writin+ the fore+oin+ we have received a very recent ('arch 11, 1&12) decision of the Supre%e #ourt of

the nited States, upon the uestion which we have een discussin+. A+ain the doctrine announced in the

case of $ecatur s. 0auldin+ (1@ 0eters, @&7) has een confir%ed. 8n this decision (. S. ex

rel. Bess s. 4isher, nited States Supre%e #ourtIs Advance Sheets, Bo. 1H, p. 3; ='arch 11, 1&12>, the

uestion was whether mandamuswould lie a+ainst the Secretary of the 8nterior, for the purpose of controlling

his decisions after he had re/ected the relatorIs clai% or application.

The supre%e court, speain+ throu+h 'r.

public officer cases 1

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