EN BANC
[G.R. No. L-6121. May 30, 1953. ]
MANUEL S. GAMALINDA, Petitioner, v. JOSE V. YAP, Respondent.
Ramon Diokno and Jose W. Diokno for Petitioner.
Solicitor General Juan R. Liwag and Solicitor Martiniano P. Vivo for Respondent.
SYLLABUS
1. PUBLIC OFFICERS; ELECTION; FAILURE OF ELECTION DUE TO DECLARATION OF INELIGIBILITY. — The effect of the decision declaring a person ineligible to hold the office is only that the election fails entirely.
2. D.; ID.; ID.; VACANCY CREATED TEMPORARY; HOW FILED. — Failure of election creates a temporary vacancy within the meaning of section 21(a) of Republic Act No. 180, which shall be filled by appointment by the President if it is a provincial or city office, and by the provincial governor, with the consent of the provincial board, if it is a municipal office. The vacancy is temporary, because the President is bound to call a special election as soon as practicable.
3. ID.; ID.; ID.; ID.; CASE AT BAR. — Although the designation of the respondent as acting municipal mayor was made by the President, since it was expressly upon the recommendation of the provincial board, the appointment was deemed as having been extended by the provincial governor, with the consent of the provincial board.
2. D.; ID.; ID.; VACANCY CREATED TEMPORARY; HOW FILED. — Failure of election creates a temporary vacancy within the meaning of section 21(a) of Republic Act No. 180, which shall be filled by appointment by the President if it is a provincial or city office, and by the provincial governor, with the consent of the provincial board, if it is a municipal office. The vacancy is temporary, because the President is bound to call a special election as soon as practicable.
3. ID.; ID.; ID.; ID.; CASE AT BAR. — Although the designation of the respondent as acting municipal mayor was made by the President, since it was expressly upon the recommendation of the provincial board, the appointment was deemed as having been extended by the provincial governor, with the consent of the provincial board.
D E C I S I O N
PARAS, J.:
The respondent was proclaimed elected in the 1951 general elections as mayor of the municipality of Victoria, Tarlac. In an election protest the Court of First Instance of Tarlac ruled that the respondent was ineligible, and the decision of said court was, upon appeal, affirmed by this Court. On September 3, 1952, the Acting Executive Secretary, by order of the President, designated the respondent as acting mayor of Victoria, pending the election and qualification of the permanent mayor. After the respondent had taken the corresponding oath of office, the petitioner, as duly elected and qualified Vice Mayor of said municipality, demanded that the respondent turn over to the former the office of mayor, and upon the respondent’s refusal to do so, the petitioner instituted the present petition for quo warranto in this Court, seeking a judicial declaration that the petitioner is entitled to occupy the said office.
The petitioner relies on section 2195 of the Revised Administrative Code and on section 21, paragraph (b) of the Revised Election Code, Republic Act No. 180. Upon the other hand, the respondent invokes section 21, paragraphs (c), (d) and (e) of the Revised Election Code, in connection with paragraph 1, section 10, Article VII of the Constitution.
Section 2195 of the Revised Administrative Code is clearly not in point, since, as its subject denotes, it has reference to a temporary disability. More particularly, it speaks of the "absence, suspension, or other temporary disability," logically contemplating a case where the mayor continues to be so, though actually unable to discharge the functions of his office due to the causes mentioned which, however, are not of permanent character.
Section 21 of the Revised Election Code reads as follows:jgc:chanrobles.com.ph
"SEC. 21. Vacancy in elective provincial, city or municipal office. —
(a) Whenever a temporary vacancy in any elective local office occurs, the same shall be filled by appointment by the President if it is a provincial or city office, and by the provincial governor, with the consent of the provincial board, if it is a municipal office.
"(b) Whenever in any elective local office a vacancy occurs as a result of the death, resignation, removal or cessation of the incumbent, the President shall appoint thereto a suitable person belonging to the political party of the officer whom he is to replace, upon the recommendation of said party, save in the case of a mayor, which shall be filled by the vice-mayor.
"(c) Whenever the election for local office fails to take place on the date fixed by law, or such election result in a failure to elect, the President shall issue, as soon as practicable, a proclamation calling a special election to fill said office.
"(d) When a local officer-elect dies before assumption of office, or fails to qualify for any reason, the President may in his discretion either call a special election or fill the office by appointment.
"(e) In case a special election has been called and held and shall have resulted in a failure to elect, the President shall fill the office by appointment.
"(f) The person appointed or elected to fill a vacancy in an elective provincial, city or municipal office shall hold the same for the unexpired term of office. (The Revised Election Code, Rep. Act No. 180)."cralaw virtua1aw library
The petitioner also relies on paragraph (b) which, in our opinion, is not applicable, because it deals with a vacancy resulting from the death, resignation, removal, or cessation of the incumbent, thereby implying that the latter is, as correctly contended by the Solicitor General, a de jure officer, the vacancy occurring only by virtue of a cause arising subsequent to his qualification.
The Solicitor General, while admitting that there is a failure of election in the case at bar, contemplated by paragraph (c), nevertheless argues that the respondent’s appointment as acting mayor is warranted under paragraphs (d) and (e). Paragraph (d) is obviously not applicable, for it does not cover a case where there is failure of election. But it is argued that, if the President can under paragraph (e) fill an elective municipal office by appointment after a special election has been called and held, which has resulted in a failure to elect, there is no reason why he cannot make the appointment pending the calling of a special election under paragraph (c). This contention is untenable, as paragraph (e) deals expressly with a situation where a special election has already been called and held, resulting in a failure to elect.
In our opinion, the Solicitor General is correct in stating that paragraph (c) must be applied, because the 1951 elections resulted in a failure to elect a mayor in the municipality of Victoria. Indeed, this Court already held in Topacio v. Paredes (23 Phil. 238), that the effect of a decision declaring a person ineligible to hold an office is only that the election fails entirely.
We therefore incline to hold, by the logical process of elimination, that the failure of election herein has created a temporary vacancy within the meaning of paragraph (a), which shall be filled by appointment by the President if it is a provincial or city office, and by the provincial governor, with the consent of the provincial board, if it is a municipal office. The vacancy has to be temporary for the simple reason that the President is called upon, under paragraph (c), to call a special election as soon as practicable.
It appearing that, although the designation of the respondent was made by the President, the appointment expressly stated that it was upon the recommendation of the provincial board of Tarlac, it can properly be deduced that said designation carried the sanction of the provincial governor and the provincial board. This necessarily leads us to conclude that the disputed appointment may be deemed as having been extended in effect by the provincial governor, with the consent of the provincial board.
Wherefore, the petition is dismissed without costs. So ordered.
Montemayor, Reyes, Jugo, Bautista Angelo and Labrador, JJ., concur.
Tuason, J., concurs in the result.
PABLO, M., disidente:chanrob1es virtual 1aw library
Tratase de un recurso de quo warranto. El recurrente reclama tener derecho de ocupar el cargo de alcalde del municipio de Victoria, provincia de Tarlac.
Los hechos no controvertidos son los siguientes: El recurrente fue elegido vice-alcalde de dicho municipio en las elecciones generales del 13 de noviembre de 1951, habiendose cualificado para el cargo el 1.
The petitioner relies on section 2195 of the Revised Administrative Code and on section 21, paragraph (b) of the Revised Election Code, Republic Act No. 180. Upon the other hand, the respondent invokes section 21, paragraphs (c), (d) and (e) of the Revised Election Code, in connection with paragraph 1, section 10, Article VII of the Constitution.
Section 2195 of the Revised Administrative Code is clearly not in point, since, as its subject denotes, it has reference to a temporary disability. More particularly, it speaks of the "absence, suspension, or other temporary disability," logically contemplating a case where the mayor continues to be so, though actually unable to discharge the functions of his office due to the causes mentioned which, however, are not of permanent character.
Section 21 of the Revised Election Code reads as follows:jgc:chanrobles.com.ph
"SEC. 21. Vacancy in elective provincial, city or municipal office. —
(a) Whenever a temporary vacancy in any elective local office occurs, the same shall be filled by appointment by the President if it is a provincial or city office, and by the provincial governor, with the consent of the provincial board, if it is a municipal office.
"(b) Whenever in any elective local office a vacancy occurs as a result of the death, resignation, removal or cessation of the incumbent, the President shall appoint thereto a suitable person belonging to the political party of the officer whom he is to replace, upon the recommendation of said party, save in the case of a mayor, which shall be filled by the vice-mayor.
"(c) Whenever the election for local office fails to take place on the date fixed by law, or such election result in a failure to elect, the President shall issue, as soon as practicable, a proclamation calling a special election to fill said office.
"(d) When a local officer-elect dies before assumption of office, or fails to qualify for any reason, the President may in his discretion either call a special election or fill the office by appointment.
"(e) In case a special election has been called and held and shall have resulted in a failure to elect, the President shall fill the office by appointment.
"(f) The person appointed or elected to fill a vacancy in an elective provincial, city or municipal office shall hold the same for the unexpired term of office. (The Revised Election Code, Rep. Act No. 180)."cralaw virtua1aw library
The petitioner also relies on paragraph (b) which, in our opinion, is not applicable, because it deals with a vacancy resulting from the death, resignation, removal, or cessation of the incumbent, thereby implying that the latter is, as correctly contended by the Solicitor General, a de jure officer, the vacancy occurring only by virtue of a cause arising subsequent to his qualification.
The Solicitor General, while admitting that there is a failure of election in the case at bar, contemplated by paragraph (c), nevertheless argues that the respondent’s appointment as acting mayor is warranted under paragraphs (d) and (e). Paragraph (d) is obviously not applicable, for it does not cover a case where there is failure of election. But it is argued that, if the President can under paragraph (e) fill an elective municipal office by appointment after a special election has been called and held, which has resulted in a failure to elect, there is no reason why he cannot make the appointment pending the calling of a special election under paragraph (c). This contention is untenable, as paragraph (e) deals expressly with a situation where a special election has already been called and held, resulting in a failure to elect.
In our opinion, the Solicitor General is correct in stating that paragraph (c) must be applied, because the 1951 elections resulted in a failure to elect a mayor in the municipality of Victoria. Indeed, this Court already held in Topacio v. Paredes (23 Phil. 238), that the effect of a decision declaring a person ineligible to hold an office is only that the election fails entirely.
We therefore incline to hold, by the logical process of elimination, that the failure of election herein has created a temporary vacancy within the meaning of paragraph (a), which shall be filled by appointment by the President if it is a provincial or city office, and by the provincial governor, with the consent of the provincial board, if it is a municipal office. The vacancy has to be temporary for the simple reason that the President is called upon, under paragraph (c), to call a special election as soon as practicable.
It appearing that, although the designation of the respondent was made by the President, the appointment expressly stated that it was upon the recommendation of the provincial board of Tarlac, it can properly be deduced that said designation carried the sanction of the provincial governor and the provincial board. This necessarily leads us to conclude that the disputed appointment may be deemed as having been extended in effect by the provincial governor, with the consent of the provincial board.
Wherefore, the petition is dismissed without costs. So ordered.
Montemayor, Reyes, Jugo, Bautista Angelo and Labrador, JJ., concur.
Tuason, J., concurs in the result.
Separate Opinions
PABLO, M., disidente:chanrob1es virtual 1aw library
Tratase de un recurso de quo warranto. El recurrente reclama tener derecho de ocupar el cargo de alcalde del municipio de Victoria, provincia de Tarlac.
Los hechos no controvertidos son los siguientes: El recurrente fue elegido vice-alcalde de dicho municipio en las elecciones generales del 13 de noviembre de 1951, habiendose cualificado para el cargo el 1.
