Fabella, Lindsey

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PART I. THE LAW ON PUBLIC OPFICERS AND CIVIL SERVICE
Prof. Gisella Dizon-Reyes
First Semester AY 2014-2015

I. INTRODUCTION

Concepts and Priciples

A. Public Office and Public Officers

1. Definitions

a. Mechem, Floyd R., A Treatise on the Law of
Public Officer and Offices, 1890

Public Office and Officer defined A public office is the
right, authority and duty, created and conferred by law,
by which for a given period, either fixed by law or
enduring at the pleasure of the creating power, an
individual is invested with some portion of the sovereign
functions of the government, to be exercised by him for
the benefit of the public. The individual so invested is a
public officer.

The word office is to be distinguished from its
application to such positions as are at most quasi public
only, as the charge or office of an executor, administrator
or guardian, and from the offices of private corporations.

Office vs. Employment
CJ Marshall although an office is an employment,
it does not follow that every employment is an office.
Office implies a delegation of a portion of the
sovereign power to, and the possession of it by, the
person filling the office; and the exercise of such
power within legal limits constitutes the correct
discharge of the duties of such office. -> it is a legal
power which may be rightfully exercised, and in its
effects it will bind the rights of others, and be subject
to revision and correction only according to the
standing laws of the state.
An employment does not have the distinguishing
features mentioned above. -> A public agent acts only
on behalf of his principal, the public, whose sanction
is generally considered as necessary to give the acts
performed the authority and power of a public act or
law. And if the act be such not to require such
subsequent sanction, still it is only a species of
service performed under the public authority and for
the public good, but not in the exercise of any
standing laws which are considered as rules of action
and guardians of rights.
Officer vs. Employee (Judge Cooley) the officer is
distinguished from the employee in greater
importance, dignity and independence of his position;
in being required to take an official oath, and perhaps
to give an official bond; in the liability to be called to
account as a public offender for misfeasance or non-
feasance in office, and usually, though not
necessarily, in the tenure of his position. In
particular cases, other distinctions will appear which
are not general.

Office vs. Contract
Contract, from its nature, is necessarily limited in its
duration and specific in its objects. The terms agreed
upon define the rights and obligations of both parties,
and neither may depart from them without the assent
of the other.

Office involves Delegation of Sovereign Functions
The most important characteristic which
distinguishes an office from an employment or
contract is that the creation and conferring of an
office involves a delegation to the individual of some
of the sovereign functions of the government, to be
exercised by him for the benefit of the public; - that
some portion of the sovereignty of the country, either
legislative, executive or judicial, attaches for the time
being, to be exercised for the public benefit. Unless
the powers conferred are of this nature, the individual
is not a public office.

Office is created by Law and not by Contract
In distinguishing between an office and an
employment, the fact that the powers in question are
created and conferred by law, is an important
criterion. For though an employment may be created
by law, it is not necessarily so, but is often, if not
usually, the creature of contract. A public office, on
the other hand, is never conferred by a contract, it
must be regarded as an employment and not as a
public office.

Oath a usual but not a necessary criterion
Public officers are usually required by law to take the
oath of office, and this fact goes far in determining
the character of the duty. But the taking of the oath
is not an indispensible criterion and the office may
exist without it, for, as has been said, the oath is a
mere incident and constitutes no part of the office.

Salary or fee not a necessary criterion
The fact of the payment of a salary or fee may aid in
determining the nature of the position, but it is not
conclusive, for while a salary or fees are usually
annexed in the office, it is not necessarily so.
It is also an incident but constitutes no part of the
office.
Where a salary or fees are annexed, the office is often
said to be coupled with an interest; where neither is
provided for it is a naked or honorary office, and is
supposed to be accepted merely for public good.

Duration or Continuance as criterion
The term office embraces the idea of tenure and
duration, and certainly a position which is merely
temporary and local cannot ordinarily be considered
an office.
CJ Marshall But if a duty be a continuing one,
which is defined by rules prescribed by the
government and not by contract, which an individual
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is appointed by government to perform, who enters on
the duties pertaining to his station without any
contract defining them, if those duties continue
though the person be changed, - it seems very
difficult to distinguish such a charge or employment
from an office or the person who performs the duties
from an officer.
CJ Pearson at the same time, however, this element
of continuance can not be considered as
indispensible, form if the other elements are present,
it can make no difference, whether there be but no
one act or a series of acts to be done, - whether the
office expires as soon as the one act is done, or is to
be held for years or during good behavior.

Scope of duties as criterion
Any man is a public officer who hath any duty
concerning the public, and he is not the less a public
officer where his authority is confined to narrow
limits; for it is duty of his office and the nature of that
duty which make him an officer, and not the extent of
his authority.

Designation of Place as Office as criterion
The fact that the place is designated, in the law
providing for its creation, as an office, affords some
reason for determining it to be such.

Authority to appoint to Office constitutes a public
officer
The authority and duty of appointing others to office,
of themselves constitute the person vested with that
authority and duty a public officer, and it is
immaterial that such person is not designated as an
officer and takes no oath and receives no fees.

Authentication by Chief Executive not necessary
Where an individual has been appointed or elected, in
a manner prescribed by law, has a designation or title
given him by law, and exercises functions concerning
the public assigned to him by law, he must be
regarded as a public officer, and it can make no
difference whether he be commissioned by the chief
executive officer with the authentication of the seal of
state or not. Where that is given it is but evidence of
his title to the office, and this evidence may in some
cases be of greater and in others of less solemnity.

Lucrative Offices, or Office of Profit
An office to which salary, compensation or fees are
attached is a lucrative office, or, as it is frequently
called, an office of profit. The amount attached is
supposed to be an adequate compensation and fixes
the character of the office as a lucrative one, or an
office of profit.

Office coupled with an interest
An office to which a salary or fees are attached is
often said to be an office coupled with an interest.

Honorary Office
So an office to which no compensation attaches is
frequently called a naked or honorary office, and is
supposed to be accepted merely for the public good.

Office of Trust
As office whose duties and functions require the
exercise of discretion, judgment, experience and skill
is an office of trust, and it is not necessary that the
officer should have the handling of public money or
property, or the care and oversight of some pecuniary
interest of the government.

Place of Trust or Profit
The term place of trust or profit is frequently used to
designate positions which approximate to, but are not
strictly offices, and yet occupy the same general level
in dignity and importance.

Executive Officers
Executive officers are those whose duties are mainly
to cause the laws to be executed.

Legislative Officers
Legislative officers are those whose duties relate
mainly to the enactment of laws, such as members of
Congress and of the several state Legislators.

Judicial Officers
Judicial officers are those whose duties are to decide
controversies between individuals and accusations
made in the name of the public against persons
charged with a violation of the law.

Ministerial Officers
Ministerial officers are those whose duty it is to
execute the mandates, lawfully issued, of their
superiors.

Military Officers
Military officers are those who have command in the
army.

Naval Officers
Naval officers are those who are in command in the
navy.

Civil Officers
Any officer who holds his appointment under the
government, whether his duties are executive or
judicial, in the highest or the lowest departments of
the government, with the exception of officers of the
army and navy, is a civil officer.

Officer de Jure
An officer de jure is one who is, in all respects, legally
appointed and qualified to exercise the office. The
distinction between an officer de jure, and officer de
facto, and a mere intruder, is one of great importance
and will be fully considered hereafter.

Officer de Facto
CJ Butler of Connecticut An officer de facto is one
whose acts, though not those of a lawful officer, the
law, upon principles of policy and justice, will hold
valid so far as they involve the interests of the public
and third persons, where the duties of the office were
exercised.
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First, without a known appointment or election, but
under such circumstances of reputation or
acquiescence as were calculated to induce people,
without inquiry, to submit to or invoke his action,
supposing him to be the officer he assumed to be.
Second, under color of a known and valid
appointment or election, but where the officer had
failed to conform to some precedent requirement or
condition, as to take an oath, give a bond, or the like.
Third, under color of a known election or
appointment, void, because the officer was not eligible
or because there was a want of power in the electing
or appointing body, or by reason of some defect or
irregularity in its exercise, such ineligibility, want of
power or defect being unknown to the public.
Fourth, under color of an election or appointment by
or pursuant to a public unconstitutional law, before
the same is adjudged to be such.

b. ADMINISTRATIVE CODE of 1987 General
Provisions and Administrative Procedure (see
codal)

c. REVISED PENAL CODE

Title Seven
CRIMES COMMITTED BY PUBLIC OFFICERS
Chapter One
PRELIMINARY PROVISIONS

Article 203. Who are public officers. - For the purpose of
applying the provisions of this and the preceding titles of
this book, any person who, by direct provision of the law,
popular election or appointment by competent authority,
shall take part in the performance of public functions in
the Government of the Philippine Islands, of shall perform
in said Government or in any of its branches public
duties as an employee, agent or subordinate official, of
any rank or class, shall be deemed to be a public officer.

DE LEON Notes

Office
An office may be defined to be that position or
function by virtue of which a person has some
employment in the affairs of another, whether the
incumbent is selected by appointment or by election,
and whether he is appointed during the pleasure of
the appointing power or for a fixed term. (Am Jur)

2. Purpose and Nature
Grounded on public office being a public trust.
1. Public offices are created for effecting the end
for which the government has been
instituted, which is the common good, and
not for the profit, honor, or private interest of
any person, family, or class of persons.
2. A public office is a public trust created in the
interest and for the benefit of the people, and
belongs to them. The nature of a public office
is inconsistent with either a property or
contract right. It is conceived of as a
responsibility and not a right.

a. Public Office, as Public Trust (Sec. 1 Admin.
Code)
1. Holders regarded as public servants since
public officers are invested with certain
powers and charged with duties pertinent to
the sovereign, such powers are held in trust
for the people and are to be exercised in
behalf of the government or of all citizens who
may need the officers intervention. The trust
extends to all matters within the range of
duties pertaining to the office. In other
words, public officers are but the servants of
the people, and not their rulers.
b. Holders subject to highest standards of
accountability and service
Stressed by the Constitution Art XI, Sec. 1 -
> Public office is a public trust. Public
officers and employees must at all times be
accountable to the people, serve them with
utmost responsibility, integrity, loyalty, and
efficiency, act with patriotism and justice,
and lead modest lives.
A public official occupies a very delicate
position which exacts from him certain
standards which are generally not demanded
from ordinary citizens. He occupies the office
to render service to the people and not as a
means to promote his personal interest. The
only justification for his continuance in such
office is his ability to advance public ends
and contribute to the public welfare.
The Code of Conduct and Ethical Standards
for Public Officials additionally provides that
every public servant shall at all times uphold
public interest over his or her personal
interest.

b. Public Office, not Property
1. Holder subject to removal or suspension
according to law the constitutional principle of
a public office as a public trust precludes any
proprietary claim to public office. A public office
is also not the property of the holder within the
contemplation of the due process requirements of
the Constitution (Art. III, Sec. 1). A public officer
is not denied due process of law by abolition of
his office before the expiration of his term or by
his removal or suspension according to law, or by
the passage of a statute or reducing his
compensation, and that an officer has no
property right in the books and papers pertaining
to his office.
2. Holder without vested right in any public office
No one has any private right of property or vested
right in any public office he holds, much less a
vested right to an expectancy of holding a public
office, at least as against the public interest. This
is not diminished by the fact that the
Constitution limits legislatures power to abolish
an office or reduce his salary during his term.
The only exceptions are constitutional offices
which provide for special immunity as regards
salary and tenure. It is only when salary is
already earned or accrued that it becomes private
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property and entitled to the protection of dual
(due?) process.
3. Holders right in nature of privilege entitled to
protection The incumbents right to office is
recognized as a privilege entitled to the protection
of the law, and an office may be considered as
property within the protection of the due process
guarantee of the Constitution in controversies
relating to the question as to which of the two
persons is entitled thereto.
4. Holders right personal to him In this sense, it is
not property which passes to his heirs upon
death and cannot be inherited.

c. Public Office, not a Contract The right of an
incumbent of an office does not depend on any
contract in the sense of an arrangement or
bargain between him and the public.
1. Creates no contractual relation between
holder and the public The nature of the
relation of a public officer to the public is
inconsistent with either a property or a
contract right. The incumbent is not under
contract so as to withdraw his tenure, salary,
and the like, from the control of the
legislature, or to preclude the legislature from
abolishing the office.
2. Exists by virtue of some law Right to hold
public office in our political system is not a
natural right and exists only by virtue of
some law which expressly or impliedly creates
or confers it.
3. Generally entitles holder to compensation
while public office is not usually regarded
as a contract, a public officer is entitled to
compensation for the performance of his
public duties when the law attaches it to the
office. If no salary is provided by law for an
office, it is presumed that the incumbent has
accepted it as such and cannot recover
anything for services he rendered. Salary is a
mere incident and forms no part of the office.

d. Security of Tenure in Public Office as property
for purposes of due process When the dispute
concerns ones constitutional right to security of
tenure, public office is deemed analogous to
property in a limited sense; hence, the right to
due process could rightfully be invoked.

Case:

National Land Titles and Deeds Registration
Administration v. Civil Service Commission and
Violeta Garcia (April 7, 1993)

Facts:

Violeta Garcia was a Bachelor of Laws graduate who was
designated to be the Acting Branch Register of Deeds of
Meycauayan, Bulacan formore or less 2 years before
being issued an appintment as Deputy Register of Deeds
II on Oct. 1, 1984 under temporary status for not being a
member of the Philippine Bar. This was due to the
passage of EO 649 (which took effect on February 9,
1981) which authorized the restructuring of the Land
Registration Commission to National Land Titles and
Deeds Registration Administration and regionalizing the
Offices of the Registers therein.
DOJ: he appealed to the Secretary of Justice but her
request was denied. Petitioner Garcia moved for
reconsideration but her motion remained unacted. On
October 23, 1984, petitioner Garcia was administratively
charged with Conduct Prejudicial to the Best Interest of
the Service. While said case was pending decision, her
temporary appointment as such was renewed in 1985. In
a Memorandum dated October 30, 1986, the then
Minister, now Secretary, of Justice notified petitioner
Garcia of the termination of her services as Deputy
Register of Deeds II on the ground that she was "receiving
bribe money". Said Memorandum of Termination which
took effect on February 9, 1987, was the subject of an
appeal to the Inter-Agency Review Committee which in
turn referred the appeal to the Merit Systems Protection
Board (MSPB).
MSPB: In its Order dated July 6, 1987, the MSPB
dropped the appeal of petitioner Garcia on the ground
that since the termination of her services was due to the
expiration of her temporary appointment, her separation
is in order. Her motion for reconsideration was denied on
similar ground.
CSC: in its Resolution 2 dated June 30, 1988, the CSC
directed that private respondent Garcia be restored to her
position as Deputy Register of Deeds II or its equivalent in
the NALTDRA. It held that "under the vested right theory
the new requirement of BAR membership to qualify for
permanent appointment as Deputy Register of Deeds II or
higher as mandated under said Executive Order, would
not apply to her (private respondent Garcia) but only to
the filling up of vacant lawyer positions on or after
February 9, 1981, the date said Executive Order took
effect." 3 A fortiori, since private respondent Garcia had
been holding the position of Deputy Register of Deeds II
from 1977 to September 1984, she should not be affected
by the operation on February 1, 1981 of Executive Order
No. 649.
National Land Titles filed a petition before the SC
assailing the validity of the CSC Resolution contending
that Sections 8 and 10 of Executive Order No. 649
abolished all existing positions in the LRC and transferred
their functions to the appropriate new offices created by
said Executive Order, which newly created offices
required the issuance of new appointments to qualified
office holders. Verily, Executive Order No. 649 applies to
private respondent Garcia, and not being a member of the
Bar, she cannot be reinstated to her former position as
Deputy Register of Deeds II.

Issue: WON membership in the bar, which is the
qualification requirement prescribed for appointment to
the position of Deputy Register of Deeds under Section 4
of Executive Order No. 649 (Reorganizing the Land
Registration Commission (LRC) into the National Land
Titles and Deeds Registration Administration or
NALTDRA) should be required of and/or applied only to
new applicants and not to those who were already in the
service of the LRC as deputy register of deeds at the time
of the issuance and implementation of the abovesaid
Executive Order.

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Held/Ratio: NO
According to the SC, EO 649 abolished all the positions is
the former LRC and required new appointments to be
issued to all employees of the NALTDRA. Abolition of an
office, in turn is a question of legislative intent about
which there can be no controversy whatsoever is there is
an explicit declaration in the law itself. mandates that
from the moment an implementing order is issued, all
positions in the Land Registration Commission are
deemed non-existent. This, however, does not mean
removal. Abolition of a position does not involve or mean
removal for the reason that removal implies that the post
subsists and that one is merely separated therefrom.
After abolition, there is in law no occupant. Thus, there
can be no tenure to speak of. It is in this sense that from
the standpoint of strict law, the question of any
impairment of security of tenure does not arise.

Requisites for a valid abolition of an office:
(1) abolition carried out by a legitimate body; -
Under Section 9, Article XVII of the 1973
Constitution, the applicable law at that time:
Sec. 9. All officials and employees in the existing
Government of the Republic of the Philippines
shall continue in office until otherwise provided
by law or decreed by the incumbent President of
the Philippines, but all officials whose
appointments are by this Constitution vested in
the Prime Minister shall vacate their respective
offices upon the appointment and qualifications
of their successors.
(2) it was done in good faith - Executive Order No.
649 was enacted to improve the services and
better systematize the operation of the Land
Registration Commission. 9 A reorganization is
carried out in good faith if it is for the purpose of
economy or to make bureaucracy more efficient.
10 To this end, the requirement of Bar
membership to qualify for key positions in the
NALTDRA was imposed to meet the changing
circumstances and new development of the times.

SC also rejected vested right theory of the CSC.
Accordingly, t here is no such thing as a vested interest or
an estate in an office, or even an absolute right to hold it.
Except constitutional offices which provide for special
immunity as regards salary and tenure, no one can be
said to have any vested right in an office or its salary. 12
None of the exceptions to this rule are obtaining in this
case.

CONCLUSION: It is clear that Garcia cannot hold any key
position in the NALTDRA, The additional qualification was
not intended to remove her from office. Rather, it was a
criterion imposed concomitant with a valid reorganization
measure.

Distinctions

Public Office Public Contract
KEY CONSIDERATIONS
Creation incident of
sovereignty
Originates from the will of
the contracting parties,
subject to the limitations
imposed by law
OBJECT
Has for its object the
carrying out of sovereign as
well as governmental
functions affecting even
persons not bound by
contract
Imposes obligations only
upon persons who entered
the same
SUBJECT MATTER AND
SCOPE
Embraces the idea of
tenure, duration, and
continuity, and the duties
connected therewith are
generally continuing and
permanent
Is almost always limited in
its duration and specific in
its objects. Its terms define
and limit the rights and
obligations of the parties,
and neither may depart
therefrom without the
consent of the other

Public Office Public Employment
KEY CONSIDERATIONS

While every public office is
an employment, every
public employment is not
an office.

The delegation to the office
holder of some of the
sovereign functions of the
government is the most
important characteristic
which distinguishes a
public office from
employment or contract.
May be created under a
contract, express or
implied, to perform a
service, without becoming
an office
MANNER OF CREATION

Created by law imposing
duties involving the
exercise of some portion of
the sovereign power and
the performance of which
concerns the public.
Not created by force of law,
but by contract of
employment -> it does not
rise to the dignity of an
office

OFFICER EMPLOYEE
Law on Public Officers
Greater importance, dignity
and independence
OPPOSITE
Required to take an oath,
give an official bond

Liability accounts as public
offense of misfeasance or
non-feasance

Revised Penal Code
Eliminates Pub Off distinction and includes any person
who, by direct provision of law, popular election or
appointment by competent authority, takes part in the
performance of a public function in the government, or
performs in said government or any of its branches,
public duties as an employee, agent, or subordinate
official, or any rank or class, is deemed a public officer.


3. Elements:
a. Created by the Constitution or by law or by
some body or agency to which the power to
create the office has been delegated;
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b. It must be invested with an authority to
exercise some portion of the sovereign power of
the State to be exercised for public interest;
c. Its powers and functions are defined by the
Constitution, or by law, or through legislative
authority;
d. The duties pertaining thereto are performed
independently, without control of a superior
power other than law, unless they are those of
an inferior or subordinate officer, created or
authorized by the legislature and placed by it
under the general control of a superior officer
or body; and
e. It is continuing and permanent in nature and
not occasional or intermittent.
Delegation of sovereign functions is essential in
the public office but compensation is not.

4. Creation of Public Office
a. Generally created by some constitutional or
statutory provision or by authority conferred by
it.
b. By Congress Creation of public offices is
primarily a legislative function, except offices
that are created by the Constitution. In so far
as the legislative power is not restricted by
constitutional provisions, it is supreme, and the
legislature may decide for itself what offices are
suitable, necessary, or convenient.
c. By the President As far as bureaus, agencies,
or offices in the executive department are
concerned, the Presidents power of control may
justify him to inactivate the functions of a
particular office, or certain laws may grant him
the broad authority to carry out reorganization
measures - > Example Admin Code Book III
Sec. 31

5. Kinds/Classifications

Public Offices and the public officers occupying them may
be classified as follows:

AS TO NATURE OF FUNCTIONS:

1. Civil office(r) it covers any kind of a public
office, whether executive, legislative, or judicial.
However, it does not include military offices, and
the terms civil office and military office are
used in the law in contradistinction to each other.
2. Military office(r) it includes all offices in the
armed forces which solely involve military
functions.

AS TO CRITERION:
1. Constitutional office(r) it is one created by the
constitution
2. Statutory Congress has full control

AS TO THE DEPARTMENT OF GOVERNMENT TO
WHICH IT BELONGS:
1. Legislative Officer one charged with functions
involving mainly the enactment of laws
2. Executive Officer one charged with functions
involving mainly the execution and
administration of laws
3. Judicial Officer One charged with functions
connected with the adjudication of actual
justiciable controversies and interpretation of
laws

AS TO BRANCH OF GOVERNMENT SERVED:
1. National Office(r) includes any office in the
national or central government, as distinguished
from the different forms of local governments
2. Local Office(r) includes any office in the political
subdivisions of the Philippines, whether
pertaining to the autonomous regions, the
provinces, cities, municipalities, barangays, ang
other forms of local government.

AS TO WHETHER EXERCISE OF DISCRETION IS
REQUIRED:
1. Quasi-judicial officer includes any office (other
than the courts) whose officers are charged with
functions that are not strictly judicial but require
the exercise of discretion or judgment
2. Ministerial Officer includes any office whose
officers are charged with the duty to execute the
mandates lawfully issued, of their superior.

AS TO COMPENSATION:
1. Lucrative office, office of profit, office coupled with
an interest includes any office to which salary,
compensation or fees are attached. The amount
of salary is supposed to be an adequate
compensation and fixes the character of the office
as a lucrative one
2. Honorary office it is one to which no
compensation is attached and is supposed to be
accepted merely for the public good.

OTHERS:
Office of trust duties and functions require the exercise
of discretion, judgment, experience, and skill. It is not
necessary that the officer should have the handling of
public money or property, or the care and oversight of
some pecuniary interest of the government. Salary or
compensation may or may not be attached to the office to
make it one of trust.

****According to the legality of title to the office, a puclic
officer is either de jure or de facto.

CASES:

Secretary of DOTC vs. Toberto Mabalot (Feb. 27, 2002)

Facts: DOTC Secretary Jesus B. Garcia, Jr., issued
Memorandum Order No.96-735 (February 19, 1996)
addressed to LTFRB Chairman Dante Lantin. It
contained a directive to the transfer of regional functions
of LTFRB to the DOTCCAR Regional Office, as follows:

In the interest of the service, you are hereby directed to
effect the transfer of regional functions of that office to the
DOTCCAR Regional Office, pending the creation of a
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regular Regional Franchising and Regulatory Office
thereat, pursuant to Section 7 of Executive Order No. 202.
Organic personnel of DOTC-CAR shall perform the LTFRB
functions on a concurrent capacity subject to the direct
supervision and control of LTFRB Central Office.

Roberto Mabalot filed a petition for certiorari and
prohibition before the RTC of QC in March of 1996
assailing Memorandum Order No. 96-735 praying that it
be declared illegal and without effect. While said case
was pending, Secretary Lagdameo issued the assailed
Department Order No. 97-1025 in 1997 which
established the DOTC-CAR Regional Office, created by
virtue of Executive Order No. 220 (July 15, 1987), as the
Regional Office of the LTFRB. In response, Mabalot filed a
Supplemental Petition also assailing the validity of DO
No. 97-1025.
RTC QC: Held in favor of petitioner and declared MO No.
96-733 and DO No. 97-1025 of the DOTC Secretary null
and void and without any legal effects because it violated
the Constitutional prohibition against encroachment on
the powers of the legislative department and also of the
provision enjoining appointive officials from holding any
other office or employment in the Government.
The DOTC Secretary filed a petition before the SC
assailing the decision of the lower court.
Argument of Mabalot: Acts of DOTC Sec. constitute an
undue exercise of legislative power -> this should have
been done by act of Congress (quoted from lower court
decision)

Issue: WON MO No. 96-733 and DO No. 97-1025 issued
by the DOTC Secretary are valid

Held/Ratio: Yes, said administrative issuances are valid.
Legal Basis:
1. Section 17, Article VII of the Constitution - The
President shall have control of all executive
departments, bureaus and offices. He shall
ensure that the laws be faithfully executed.
2. Administrative Code of 1987 - also provides legal
basis for the Chief Executives authority to
reorganize the National Government.
3. Republic Act 7645, Sec. 62 (G.A.A. for FY 1993) -
the President is authorized to effect
organizational changes including the creation of
offices in the department or agency concerned.

The DOTC Sec. also did not encroach upon the legislative
prerogative of Congress as the DOTC-CAR was created by
authority of law. Elementary rule in administrative law
and the law on public officers that a public office maybe
created through any of the following modes: (1) by the
Constitution (fundamental law), (2)by law (statute duly
enacted by Congress), or (3) by authority of law, thus,
Congress can delegate the power to create positions. The
creation and establishment of LTFRB-CAR Regional Office
was made pursuant to the third mode - by authority of
law, which could be decreed for instance, through an E.O.
issued by the President or an order of an administrative
agency such as the Civil Service Commission pursuant to
Section 17, Book V of E.O. 292(The Administrative Code
of 1987). In this case, the DOTC Secretary issued the
assailed Memorandum and Department Orders pursuant
to Administrative Order No. 36 of the President:

Section 1. Establishment of Regional Offices in the
CAR- The various departments and other agencies of the
National Government that are currently authorized to
maintain regional offices are hereby directed to establish
forthwith their respective regional offices In the
Cordillera Administrative Region with territorial
coverage as defined under Section 2 of Executive Order No.
220 dated July 15, 1987, with regional headquarters at
Baguio City.

It is as if the President himself carried out the creation
and establishment of LTFRB-CAR Regional Office, when
in fact, the DOTC Secretary, as alter ego of the President,
directly and merely sought to implement the Chief
Executives Administrative Order.

Section 17, Article VII of the Constitution mandates:
The President shall have control of all executive
departments, bureaus and offices. He shall ensure that
the laws be faithfully executed. -> Villena vs. Exec. Sec.
was cited at this point on the doctrine of qualified political
agency and power of control of the President.

It is also true that in our jurisdiction, reorganization is
regarded as valid provided it is pursued in good faith. As
a general rule, a reorganization is carried out in good
faith if it is for the purpose of economy or to make
bureaucracy more efficient. The reorganization in this
case was decreed in the interest of the service and for
purposes of economy and more effective coordination of
the DOTC functions in the Cordillera Administrative
Region, thus in good faith.

Finally, the SC held that the assailed Orders of the DOTC
Secretary do not violate Sections 7 and 8, Article IX-B
of the Constitution. Considering that in the case of
Memorandum Order No. 96-735, the organic personnel of
the DOTC-CAR were, in effect, merely designated to
perform the additional duties and functions while
performing the functions of their permanent office. Also,
an office or employment held in the exercise of the
primary functions of ones principal office is an exception
to, or not within the contemplation, of the prohibition
embodied in Section 7,Article IX-B. No evidence was
adduced and presented to clearly establish that the
appointive officials andemployees of DOTC-CAR shall
receive any additional, double or indirect compensation,
inviolation of Section 8, Article IX-B of the Constitution
-> check Consti

Engineer Claro Preclaro vs. Sandiganbayan and the
People of the Philippines (Aug. 21, 1995)

Facts:
On October 1, 1989, the Chemical Mineral Division of the
ITDI (Industrial Technology Development Institute which
was a component of the DOST) hired Engr. Preclaro (aka
Dave) under a written contract of services as Project
Manager to supervise the construction of the ITDI-CMD
(JICA) Building at the DOST Compound in Bicutan,
Taguig, Metro Manila. Accordingly, said contract was to
remain in effect from October 1, 1989 up to the end of the
construction period unless sooner terminated. Engr.
Preclaros monthly salary was drawn from counter-part
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funds duly financed by foreign-assisted projects and
government funds duly released by the DBM. To facilitate
the building of said JICA structure, DOST contracted the
services of the Jaime Sta. Maria Construction Company
with Engr. Alexander Resoso, as the company's project
engineer. Thereafter, Engr. Preclaro allegedly committed
a violation of RA 3019 in making overtures towards Engr.
Resoso regarding the Charge Order. Accordingly, Preclaro
can forget about the expenses in the Charge Order as
being deductive (and not additive or charged against the
owner) provided he gets paid P200,000.00, from the
contractor's profit which he roughly computed at
aroundP460,000.00. Upon informing his superior, Jaime
Sta. Maria Sr., they enlisted the aid of the NBI to set up
an entrapment which took place at a Wendys Restaurant.
Preclaro was soon after charged before the
Sandiganbayan with a violation of Sec. 3(b)of R.A. No.
3019 as amended (Anti-Graft and Corrupt Practices Act)
and was later held GUILTY of all charges. Preclaro then
filed a present petition for review before the SC alleging
that the Sandiganbayan erred in ruling that he was guilty
because he was not a public officer.
Preclaros Arguments:
According to him, he cannot be considered as a public
officer because he was neither elected nor appointed to a
public office. Rather, he maintains that he is merely a
private individual hired by the ITDI on contractual basis
for a particular project and for a specified period and that
he was not issued any appointment paper separate from
the abovementioned contract. He was also not required to
use the Bundy clock to record his hours of work and
neither did he take an oath of office.

Issue: WON Engr. Claro Preclaro is a public officer.
Held/Ratio: Yes, the petitioner is a public officer and
can therefore be held liable under RA 3019

According to the SC, Preclaro misconstrued the definition
of "public officer". This is because in Sec. 2(b) of RA
3019, the term public officer "includes elective and
appointive officials and employees, permanent or
temporary, whether in the classified or unclassified or
exemption service receiving compensation, even nominal,
from the government . . ."

In this case, the word "includes" used in defining a public
officer in Sec. 2(b) indicates that the definition is not
restrictive. The terms "classified, unclassified or
exemption service" were the old categories of positions in
the civil service which have been reclassified into Career
Service and Non-Career Service 11 by PD 807 providing
for the organization of the Civil Service Commission and
by the Administrative Code of 1987.

The further explained that non-career service in
particular is characterized by:
(1) entrance on bases other than those of the usual test of
merit and fitness utilized for the career service; and
(2) tenure which is limited to a period specified by law, or
which is coterminous with that of the appointing
authority or subject to his pleasure, or which is limited to
the duration of a particular project for which purpose
employment was made.

The Non-Career Service shall include:
(1) Elective officials and their personal or confidential
staff;
(2) Secretaries and other officials of Cabinet rank who
hold their positions at the pleasure of the President and
their personal or confidential staff(s);
(3) Chairman and members of commissions and boards
with fixed terms of office and their personal or
confidential staff;
(4) Contractual personnel or those whose employment
in the government is in accordance with a special
contract to undertake a specific work or job,
requiring special or technical skills not available in
the employing agency, to be accomplished within a
specific period, which in no case shall exceed one
year, and performs or accomplishes the specific work
or job, under his own responsibility with a minimum
of direction and supervision from the hiring agency;
and
(5) Emergency and seasonal personnel.

The Supreme Court classified Engr. Preclaro under the 4
th

category leading to the conclusion that he is indeed a
public officer and within the ambit of RA 3019. The SC
further explained that the fact that Preclaro is not
required to record his working hours by means of a
Bundy clock or did not take an oath of office became
unessential considerations in view of the provision of law
clearly including petitioner within the definition of a
public officer.

Additional: The SC also affirmed the Sandiganbayans
findings that the accused was guilty under RA 3019
beyond reasonable doubt, rejecting his factual assertions
(computation of the P200k improbable, etc.)

Feliciano Maniego vs. People of the Philippines (April
20, 1951)

Facts:
Maniego, in this case, was charged and found guillty
under Art. 210 of the RPC.

Feliciano Maniego, although appointed as a laborer, had
been placed in charge of issuing summons and
subpoenas for traffic violations in the Sala of Judge
Crisanto Aragon of the Municipal Court of the City of
Manila. He had been permitted to write motions for
dismissal of prescribed traffic cases against offenders
without counsel, and to submit them to the Court for
action, without passing through the regular clerk.

What happened was that Felix Raba (complainant)
appeared and inquired from the accused about a
subpoena that he received. Maniego informed him that it
was in connection with a traffic violation for which said
Rabia had been detained and given traffic summons by
an American MP (military police?). The accused then
informed Fiscal De la Merced that the case against Rabia
had already prescribed. Consequently, the Fiscal
instructed the Maniego that if the traffic violator (in this
case Rabia) had no lawyer, he could write the motion for
dismissal and have it signed by the party concerned. This
was done by the accused and after the signing by Felix
Raba the matter was submitted to the Court, which
granted the petition for dismissal.
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However, Maniego told Rabia that he would be charged
P15 pesos as penalty for his offense. However, he
intimated that he could fix the case if Rabia would pay
him P10. Accordingly, Rabia did pay the accused P10
which Maniego pocketed. The accused was then charged
and convicted of violating of Art. 210 of the RPC. He then
lodged an appeal before the SC asserting that the lower
court and CA erred in considering him as a public officer.
Maniegos arguments:
a. The doctrine of "the temporary performance of public
functions by a laborer" should not apply in defendant's
case.
b. The overt act imputed on the accused does not
constitute a circumstance by which he may be considered
a public official.
c. His appointment as laborer came from one source,
while the designation and delimitation of the functions of
his appointment came from another source.

Issue: WON Maniego was a public officer

Held/Ratio: Yes, he was a public officer.

The SC enumerated the 4 essential elements of the
offense under Art. 210 of the RPC as follows:
(1) that the accused is a public officer within the scope of
article 203 of the Revised Penal Code;
(2) that the accused received by himself or thru another,
some gift or present, offer or promise;
(3) that such gift, present or promise has been given in
consideration of his commission of some crime or any act
not constituting a crime;
(4) that the crime or act relates to the exercise of the
functions of the public officer.

Element # 1
According to the SC, Maniego was a public officer within
the meaning of Art. 203 of the RPC, which includes all
persons "who, by direct provision of law, popular election
or appointment by competent authority, shall take part in
the performance of public functions in the Philippine
Government, or shall perform in said government or any
of its branches, public duties as an employee, agent or
subordinate official or any rank or class." This definition
is comprehensive, embracing every public servant from
the highest to the lowest. For the purposes of the Penal
Code, it obliterates the standard distinction in the law of
public officers between "officer" and "employee".

More importantly, the Court held that for the purposes of
punishing bribery, the temporary performance of public
functions is sufficient to constitute a person a public
official. Although originally appointed as a mere laborer,
this defendant was on several occasions designated or
given the work to prepare motions for dismissal. He was
consequently temporarily discharging such public
functions. And as in the performance thereof he accepted,
even solicited, a monetary reward, he is certainly guilty as
charged. The Court highlighted that the receipt of bribe
money is just as pernicious or destructive when
committed by temporary employees as when committed
by permanent officials.

Element # 2
The SC affirmed the findings of the CA that Maniego
received ten pesos from Rabia (and pocketed the money)
in consideration of his "fixing" Rabia's case, and
thereafter he "fixed" it by filing a motion for dismissal,
which was approved in due course.

Elements # 3 and 4
The SC reiterated its explanations under the first element
of this crime which sufficiently answer Maniegos
propositions elaborated in several parts of his brief,
revolving around the thesis that since he was a mere
laborer by appointment he may not be convicted, because
the preparation of motions for dismissal is not surely the
official function of a laborer. Enough to recall that
although originally appointed as a mere laborer, this
defendant was on several occasions designated or given
the work to prepare motions for dismissal. He was
consequently temporarily discharging such public
functions. And as in the performance thereof he accepted,
even solicited, monetary reward, he certainly guilty as
charged.

Salvador Laurel vs. Aniano Desierto, in his capacity as
Ombudsman (April 12, 2002)

Facts:
President Corazon Aquino issued Administrative Order
No. 223 on June 13, 1991constituting a Committee for
the preparation of the National Centennial Celebration in
1998. During the subsequent term of President Fidel V.
Ramos, he issued EO No. 128, reconstituting the
Committee for the preparation of the National Centennial
Celebrations in 1998. The Committee was renamed as
the National Centennial Commission. Appointed to
chair the reconstituted Commission was former VP
Salvador H. Laurel. As a consequence of the creation of
the NCC, a corporation named the Philippine Centennial
Expo 98 Corporation (Expocorp) was created. Laurel was
also among the 9 Expocorp incorporators, who were also
its first 9 directors. Laurel was also elected as Expocorp
Chief Executive Officer (CEO).

On Aug. 1998, Senator Ana Dominique Coseteng
delivered a privilege speech in the Senate denouncing
alleged anomalies in the construction and operation of
the Centennial Exposition Project at the Clark Special
Economic Zone. Investigation was referred to the Blue
Ribbon Committee.

President Joseph Estrada issued AO No. 35 (Feb 1999),
creating an ad hoc and independent citizens committee
to investigate all the facts and circumstances
surrounding the Philippine centennial projects, including
its component activities. Former Senator Rene A.V.
Saguisag was appointed to chair the Committee.

Eventually, the Senate Blue Ribbon Committee filed with
the Secretary of the Senate its Committee Final
Report No. 30 which recommended the prosecution by
the Ombudsman/DOJ of Dr. Salvador Laurel, chair of
NCC and of EXPOCORP for violating the rules on public
bidding, relative to the award of centennial contracts to
AK(Asia Construction & Development Corp.); for
exhibiting manifest bias in the issuance of theNTP (Notice
to Proceed) to AK to construct the FR (Freedom Ring) even
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PUB OFF 10

in the absence of a valid contract that has caused
material injury to government and for participating in the
scheme to preclude audit by COA of the funds infused by
the government for the implementation of the said
contracts all in violation of the anti-graft law. The
Saguisag Committee had similar recommendations. The
Ombudsman, in turn, filed a complaint against Laurel,
Pea (EXPOCORP Pres.) and Angeles (AK Pres.) for
violation of Sec. 3(e) and (g) of R.A. No. 3019, as amended
in relation to PD 1594 and COA Rules and Regulations.
However, the case against Pena and Angeles were
eventually dropped leaving Laurel to face the charges.


Laurel then filed with the Office of the Ombudsman a
Motion to Dismiss questioning the jurisdiction of said
office. -> DENIED by the Ombudsman which led Laurel to
file a Petition for Certiorari before the SC

Arguments of Laurel:

Petitioner assails the jurisdiction of the Ombudsman on
the ground that he is not a public officer because:
1. EXPOCORP was a private corporation, not a
GOCC,
2. NCC was not a public office, and
3. petitioner, both as Chairman of the NCC and
EXPOCORP was not a public officer as defined
under RA 3019.

Issues:
1. WON Laurel was a public officer
2. WON the Ombudsman had jurisdiction over
the case

Held/Ratio: Yes on both issues.

1. Laurel was a public officer and the NCC was a public
office.
The SC found that the NCC performs executive functions.
It explained that executive power is generally defined as
the power to enforce and administer the laws. It is the
power of carrying the laws into practical operation and
enforcing their due observance. The executive function,
therefore, concerns the implementation of the policies as
set forth by law. In this case, the law cited was no less
than the Article XIV Sec. 15. of the constitution which
states that:

Arts and letters shall enjoy the patronage of the State. The
State shall conserve, promote, and popularize the nations
historical and cultural heritage and resources, as well as
artistic creations.

The SC also cited the preamble, A.O. No. 223 which
states the purposes for the creation of the Committee for
the National Centennial Celebrations in 1998 as a vehicle
for fostering nationhood and a strong sense of Filipino
identity...showcase Filipino heritage and thereby
strengthen Filipino values.

The Supreme Court also emphasized that the NCC was
created via an Executive Order pursuant to Book III
(Office of the President), Chapter 2 (Ordinance Power),
Section 2:

Executive Orders. Acts of the President providing for rules
of a general or permanent character in implementation or
execution of constitutional or statutory powers shall
be promulgated in executive orders.

AS FOR THE NCC, THE SC FOUND THAT SINCE IT
PERFORMS SOVEREIGN FUNCTIONS, IT IS A PUBLIC
OFFICE. THEREFORE, LAUREL AS ITS CHAIR IS A
PUBLIC OFFICER.

Laurel allegedly did not receive any compensation
during his tenure - REJECTED BY THE COURT. A
salary is a usual but not a necessary criterion for
determining the nature of the position. It is not
conclusive. The salary is a mere incident and forms
no part of the office. The office of petitioner as NCC
Chair may be characterized as an honorary office, as
opposed to a lucrative office or an office of profit, i.e.,
one to which salary, compensation or fees are
attached.
Continuance of office ALSO REJECTED BY THE
COURT. The term office embraces the idea of tenure
and duration but the element of continuance cannot
be considered as indispensable, for, if the other
elements are present there is no difference whether
there be but one act or a series of acts to be done, -
whether the office expires as soon as the one act is
done, or is to be held for years or during good
behavior.

2. The Ombudsman also has jurisdiction over Laurel.

The SC rejected Laurels argument that since he did not
receive any compensation for his services as NCC or
Expocorp Chair, he is not a public officer as defined in
Republic Act No.3019 and is, therefore, beyond the
jurisdiction of the Ombudsman.

The Court cited the definition of a Public officer in Section
2 of RA 3019:

SEC. 2. Definition of terms.

As used in this Act, the term
x xx(b) Public officer includes elective and appointive
officials and employees, permanent or temporary, whether
in the classified or unclassified or exemption service
receiving compensation, even nominal, from the
government as defined in the preceding paragraph.

According to the court, while the definition of a public
officer above is limited to the application of R.A. No.
3019, it does not apply for purposes of determining the
Ombudsmans jurisdiction. Accordingly, the
Ombudsmans jurisdiction is defined by the Constitution
and the Ombudsman Act of 1989.

MORE IMPORTANTLY, the question of whether
petitioner is a public officer under the Anti-Graft and
Corrupt Practices Act involves the appreciation of
evidence and interpretation of law, matters that are
best resolved at trial. The SC cited the variety of
definitions of public officers under Phil. Law as
follows:
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PUB OFF 11


Art. 203 of the RPC:
a public officer is xxx any person who, by direct
provision of law, popular election or appointment by
competent authority, takes part in the performance of
public functions in the Government of Philippines or
performs in said Government or in any of its branches
public duties as an employee, agent or subordinate
official, of any rank or class.

Section 2 (14) of the Introductory Provisions of the
Administrative Code of 1987:
Officer - as distinguished from clerk or employee,
refers to a person whose duties not being of a clerical or
manual nature, involves the exercise of discretion in the
performance of the functions of the government. When
used with reference to a person having authority to do a
particular act or perform a particular person in the
exercise of governmental power, officer includes any
government employee, agent or body having authority to
do the act or exercise that function.

Section 3 (b) of Republic Act No. 6713 (The Code of
Conduct and Ethical Standards for Public Officials
and Employees)
Public Officials include elective and appointive officials
and employees, permanent or temporary, whether in the
career or non-career service including military and police
personnel, whether or not they receive compensation,
regardless of amount.
This means that one may be considered a public
official whether or not one receives
compensation.

CONCLUSION: The SC concluded that the Ombudsman
has the power to investigate any malfeasance,
misfeasance and non-feasance by a public officer or
employee of the government, or of any subdivision,
agency or instrumentality thereof, including GOCCs.

Definition of public officers according to Mechem: A
public office is the right, authority and duty, created and
conferred by law, by which, for a given period, either fixed
by law or enduring at the pleasure of the creating power,
an individual is invested with some portion of the
sovereign functions of the government, to be exercised by
him for the benefit of the public. The individual so
invested is a public officer.

Characteristics:
1. the delegation of sovereign functions -> MOST
IMPORTANT IN DETERMINING WON AN
OFFICE/OFFICER IS OF PUBLIC CHARACTER
2. its creation by law and not by contract,
3. an oath, salary, and continuance of the position,
scope of duties, and the designation of the
position as an office -> merely incidental

Salvador Fernandez and Anicia De Lima vs. Hon.
Patricia Sto. Tomas, CHAIRMAN and Hon Ramon
Ereneta, COMMISSIONER, CSC
March 7, 1995

Facts:
In this case, Fernandez de Lima assail the validity of
Resolution No.94-3710 of the CSC and the authority of
the Commission to issue the same.

What took place:
Fernandez -> was serving as Director of the Office of
Personnel Inspection and Audit ("OPIA") at the Central
Office of the Civil Service Commission in Quezon City
de Lima -> was serving as Director of the Office of the
Personnel Relations("OPR") at the Central Office of the
Civil Service Commission in Quezon City

Resolution No. 94-3710 - signed by CSC Chairman Sto.
Tomas and CSC Commissioner Ereneta, Jr., effectively
reorganized the departments of the CSC, including than
of the petitioners.

In effect:
the OPIA and OPR were merged into the Research
and Development Office (RDO)
Petitioners were transferred from the RDO to the
Commissions Regional Offices in Regions V (for
Fernandez) and III (for de Lima) without
diminution of rank and salary.

In response, the Petitioners filed this petition to assail the
validity of CSC Res. No. 94-3710

Issues:
1. WON the CSC was legally authorized to issue
the assailed resolution and streamline the CSC
2. WON said resolution violated the petitioners
security of tenure

Held/Ratio:
1. Yes, CSC was legally authorized.

The SC cited the Revised Administrative Code of 1987:

Book V, Title I, Subtitle A, Chapter 3 (the internal
structure and organization of the Commission)

Sec. 16 enumerates the Offices in the Commission.
Sec. 17 describes the Organizational Structure of thr
commission- As an independent constitutional body,
the Commission may effect changes in the
organization as the need arises.

The SC held that the OCSS, OPIA and OPR, were 3 of the
16 divisions of the CSC which were merged to become the
RDO. As a result, what Resolution No. 94-3710 did was
to re-arrange some of the administrative units within the
Commission and, among other things, merge 3 of them
(OCSS, OPIA and OPR) to form a new grouping called the
"Research and Development Office (RDO)." It also re-
allocated certain functions moving some functions from
one Office to another. -> This was within its power to do
pursuant to the Admin. Code

The court identified the objectives sought by the assailed
Resolution as to effect changes in the organization to
streamline [the Commission's] operations and improve
delivery of service." -> this was what the abovementioned
Admin Code provision contemplated.

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PUB OFF 12

The SC also rejected the argument of the petitioners that
Resolution No. 94-3710 effected the "abolition" of public
offices, something that may be done only by the same
legislative authority, which had created those public
offices in the first place. -> According to the court, it is
essential to note that none of the "changes in organization
"introduced by Resolution No. 94-3710 carried with it or
necessarily involved the termination of the relationship of
public employment between the Commission and any of
its officers and employees.



The SC also rejected the petitioners arguments that their
right to security of tenure was breached by the
respondent's in promulgating Resolution No. 94-3710 and
ordering petitioners' assignment to the Commission's
Regional Offices in Regions III and V. The SC reasoned
that the appointments to the staff of the Commission are
not appointments to a specified public office but
rather appointments to particular positions or ranks.
The petitioners were each appointed to the position of
Director IV, without specification of any particular office
or station.

Personal Note: ***APPOINTMENT TO A SPECIFIC
STATION VS. ASSIGNMENT

The SC then cited Section 26(7), Book V, Title I, Subtitle A
of the 1987 Revised Administrative Code which recognizes
reassignment as a management prerogative vested in the
Commission and, for that matter, in any department or
agency of government embraced in the civil service
Accordingly, an employee may be re-assigned from
one organizational unit to another in the same
agency; Provided, That such re-assignment shall not
involve a reduction in rank, status and salary.

Moreover, the SC explained the rule which proscribes
transfers without consent as anathema to the security of
tenure is predicated upon the theory that the officer
involved is appointed - not merely assigned - to a
particular station. In default of any particular station
stated in their respective appointments, no security
of tenure can be asserted by the petitioners on the
basis of the mere assignments, which were given to
them. A contrary rule will erase altogether the
demarcation line we have repeatedly drawn between
appointment and assignment as two distinct concepts in
the law of public officers.

CONCLUSION: The reassignment of Fernandez and de
Lima from their stations in the OPIA and OPR,
respectively, to the Research Development Office (RDO)
and from the RDO to the Commissions' Regional Offices
in Regions V and III, respectively, without their consent,
did not constitute a violation of their constitutional right
to security of tenure.

Vicente Segovia vs. Pedro Noel (March 4, 1925)

Facts:

The petitioner in this case, Vicente Segovia was appointed
Justice of the Peace of Dumanjug, Cebu, on January 21,
1907. He continuously occupied this position until having
passed the age of 65 after which he was ordered by the
Sec. of Justice on July 1, 1924, to vacate the office. The
respondent Pedro Noel had since been acting as justice of
the peace for the municipality.

In response, Segovia instituted friendly (because he did
not want to be scandalized) quo warranto proceedings in
the CFI of Cebu to inquire into the right of Pedro Noel to
occupy the office of justice of the peace, to oust the latter,
and to procure his reinstatement as justice of the peace of
Dumanjug.

The CFI ruled in favor of SEGOVIA.

Issue: WON Act No. 3107 in providing that justices of
the peace and auxiliary justices of the peace shall be
appointed to serve until they have reach the age of 65
should be given retroactive or prospective effect.

Held/Ratio: No, it should not be given retroactive
effect

Fundamental principle: a public office cannot be regarded
as the property of the incumbent, and that a public office
is not a contract.

Law in force when Segovia was originally appointed: Act
No. 1450 -> amended section 67 of the Judiciary Law by
making the term of office of justices and auxiliary justices
of the peace two years from the first Monday in January
nearest the date of appointment.
HOWEVER, shortly after Segovia's appointment, however,
the law was again amended by Act. No. 1627 by
providing that "all justices of the peace and auxiliary
justices of the peaceshall hold office during good behavior
and those now in office shall so continue."

Subsequent amendments by Acts Nos. 2041 and 2617,
the law (ultimately codified in sections 203 and 206 of the
Administrative Code) which section 1 of Act No. 3107
amended by adding at the end thereof the following
proviso: "Provided, That justices and auxiliary justices of
the peace shall be appointed to serve until they have
reached the age of sixty-five years."

However, the court noted that Section 206 of the
Administrative Code entitled "Tenure of office," and
reading "a justice of the peace having the requisite legal
qualifications shall hold office during good behavior
unless his office be lawfully abolished or merged in the
jurisdiction of some other justice," was left unchanged
by Act No. 3107

Applying the principles of statutory construction, the SC
held that Act No. 3107 should be applied prospectively
and not retroactively, unless there is legislative intent to
that effect. -> LAW NOT APPLIED TO SEGOVIA AND HE
WAS REINSTATED.

The court also noted the following principle: "Though
there is no vested right in an office, which may not be
disturbed by legislation, yet the incumbent has, in a
sense, a right to his office. If that right is to be taken
Fabella, Lindsey
PUB OFF 13

away by statute, the terms should be clear in which
the purpose is stated."

Cesar Dario vs. Hon. Salvador Mison et al. (Aug. 8,
1989)
***1 of 7 consolidated cases

Facts:

On March 25, 1986, President Corazon Aquino
promulgated Proclamation No. 3, "DECLARING
A NATIONAL POLICY TO IMPLEMENT THE REFORMS
MANDATED BY THE PEOPLE..., the
mandate of the people to Completely reorganize the
government:

On May 28, 1986, the President enacted Executive Order
No. 17, "PRESCRIBING RULES ANDREGULATIONS FOR
THE IMPLEMENTATION OF SECTION 2, ARTICLE III OF
THE FREEDOMCONSTITUTION." Executive Order No. 17
recognized the "unnecessary anxiety anddemoralization
among the deserving officials and employees" the ongoing
governmentreorganization had generated...


January 30, 1987, the President promulgated Executive
Order No. 127, "REORGANIZING THEMINISTRY OF
FINANCE". Among other offices, Executive Order No. 127
provided for thereorganization of the Bureau of Customs
and prescribed a new staffing pattern therefor.


February 2, 1987, 11 the Filipino people adopted the new
Constitution


January 6, 1988, incumbent Commissioner of Customs
Salvador Mison issued aMemorandum, in the nature of
"Guidelines on the Implementation of
ReorganizationExecutive Orders," prescribing the
procedure in personnel placement. It also provided that
byFebruary 28, 1988, all employees covered by Executive
Order 127 and the grace periodextended to the Bureau of
Customs by the President of the Philippines on
reorganization shallbe: a) informed of their re-
appointment, or b) offered another position in the
samedepartment or agency, or c) informed of their
termination.


On January 26, 1988, Commissioner Mison addressed
several notices to various Customsofficials stating that
they shall continue to perform their respective duties and
responsibilities
in a hold-over capacity, and that those incumbents whose
positions are not carried in the newreorganization
pattern, or who are not re-appointed, shall be deemed
separated from theservice. A total of 394 officials and
employees of the Bureau of Customs were given
individualnotices of separation.


On June 30, 1988, the Civil Service Commission
promulgated its ruling ordering thereinstatement of the
279 employees, the 279 private respondents in G.R. No.
85310


Commissioner Mison, represented by the Solicitor
General, filed a motion for reconsideration,which was
denied. Commissioner Mison instituted certiorari
proceedings.


On November 16, 1988, the Civil Service Commission
further disposed the appeal (from theresolution of the
Reorganization Appeals Board) of five more employees.
CommissionerMison challenged the Civil Service
Commission's Resolution.


On June 10, 1988, Republic Act No. 6656, "AN ACT TO
PROTECT THE SECURITY OF TENURE OFCIVIL
SERVICE OFFICERS AND EMPLOYEES IN THE
IMPLEMENTATION OF
GOVERNMENTREORGANIZATION," was signed into law:
Sec. 9. All officers and employees who are found bythe
Civil Service Commission to have been separated in
violation of the provisions of this Act,shall be ordered
reinstated or reappointed as the case may be without loss
of seniority andshall be entitled to full pay for the period
of separation. Unless also separated for cause, allofficers
and employees, including casuals and temporary
employees, who have beenseparated pursuant to
reorganization shall, if entitled thereto, be paid the
appropriateseparation pay and retirement and other
benefits...


On June 23, 1988, BenedictoAmasa and William Dionisio,
customs examiners appointed byCommissioner Mison
pursuant to the ostensible reorganization subject of this
controversy,petitioned the Court to contest the validity of
the statute.


On October 21, 1988, thirty-five more Customs officials
whom the Civil Service Commissionhad ordered
reinstated by its June 30, 1988 Resolution filed their own
petition to compel theCommissioner of Customs to
comply with the said Resolution.Case for the Employees:


Cesar Dario was one of the Deputy Commissioners of the
Bureau of Customs until his relief onorders of
Commissioner Mison on January 26, 1988. In essence, he
questions the legality of his dismissal, which he alleges
was upon the authority of Section 59 of Executive Order
No.127 (SEC. 59. New Structure and Pattern. Upon
approval of this Executive Order, the officersand
employees of the Ministry shall, in a holdover capacity,
continue to perform theirrespective duties and
responsibilities and receive the corresponding salaries
and benefitsunless in the meantime they are separated
from government service pursuant to ExecutiveOrder No.
17 (1986) or Article III of the Freedom Constitution.
Incumbents whose positionsare not included therein or
who are not reappointed shall be deemed separated from
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PUB OFF 14

theservice. Those separated from the service shall receive
the retirement benefits to which theymay be entitled)


A provision he claims the Commissioner could not have
legally invoked. He avers that hecould not have been
legally deemed to be an "incumbent whose position is not
includedtherein or who is not reappointed
to
justify his separation from the service. He contends
thatneither the Executive Order (under the second
paragraph of the section) nor the staffingpattern proposed
by the Secretary of Finance abolished the office of Deputy
Commissioner of Customs, but, rather, increased it to
three. Nor can it be said, so he further maintains, that
hehad not been "reappointed" (under the second
paragraph of the section) because"reappointment therein
presupposes that the position to which it refers is a new
one in lieu of that which has been abolished or although
an existing one, has absorbed that which has
beenabolished." He claims, finally, that under the
Provisional Constitution, the power to dismisspublic
officials without cause ended on February 25, 1987, and
that thereafter, public officialsenjoyed security of tenure
under the provisions of the 1987 Constitution


- Like Dario, Vicente Feria asserts his security of tenure
and that he cannot be said to becovered by Section 59 of
Executive Order No. 127, having been appointed on April
22, 1986 -during the effectivity of the Provisional
Constitution. He adds that under Executive Order No.39,
"ENLARGING THE POWERS AND FUNCTIONS OF THE
COMMISSIONER OF CUSTOMS," theCommissioner of
Customs has the power "to appoint all Bureau personnel,
except thoseappointed by the President," and that his
position, which is that of a Presidential appointee,is
beyond the control of Commissioner Mison for purposes
of reorganization.


Case for Commissioner Mison:


Provisions of Section 16, Article XVIII (Transitory
Provisions) explicitly authorize the removal of career civil
service employees "not for cause but as a result of the
reorganization pursuant toProclamation No. 3 dated
March 25, 1986 and the reorganization following the
ratification of this Constitution. For this reason, Mison
posits, claims of violation of security of tenure
areallegedly no defense. That contrary to the employees'
argument, Section 59 of ExecutiveOrder No. 127 is
applicable (in particular, to Dario and Feria), in the sense
that retention inthe Bureau, under the Executive Order,
depends on either retention of the position in thenew
staffing pattern or reappointment of the incumbent, and
since the dismissed employeeshad not been reappointed,
they had been considered legally separated. Moreover,
Misonproffers that under Section 59 incumbents are
considered on holdover status, "which meansthat all
those positions were considered vacant."


The Commissioner's twin petitions are direct challenges
to three rulings of the Civil ServiceCommission: (1) the
Resolution, dated June 30, 1988, reinstating the 265
customs employeesabove-stated; (2) the Resolution, dated
September 20, 1988, denying reconsideration; and (3)the
Resolution, dated November 16, 1988, reinstating five
employees

ISSUE
WONSection 16 of Article XVIII of the 1987 Constitution
is a grant of a license upon theGovernment to remove
career public officials it could have validly done under an
"automatic"-vacancy-authority and to remove them
without rhyme or reason.
HELD/RATIO

NO.
Section 16 Article XVIII, of the 1987 Constitution:Sec. 16.
Career civil service employees separated from the service
not for cause but as a result of the reorganization
pursuant to Proclamation No. 3 dated March 25, 1986
and the reorganizationfollowing the ratification of this
Constitution shall be entitled to appropriate separation
pay and toretirement and other benefits accruing to them
under the laws of general application in force atthe time
of their separation. In lieu thereof, at the option of the
employees, they may beconsidered for employment in the
Government or in any of its subdivisions,
instrumentalities, oragencies, including government-
owned or controlled corporations and their subsidiaries.
Thisprovision also applies to career officers whose
resignation, tendered in line with the existing policyThe
above provision comes as a mere recognition of the right
of the Government to reorganize itsoffices, bureaus, and
instrumentalities. Under Section 4, Article XVI, of the
1935 Constitution:Invariably, transition periods are
characterized by provisions for "automatic" vacancies.
They aredictated by the need to hasten the passage from
the old to the new Constitution free from the"fetters" of
due process and security of tenure.


As we have seen, since 1935, transition periods have been
characterized by provisions for"automatic" vacancies. We
take the silence of the 1987 Constitution on this matter
as arestraint upon the Government to dismiss public
servants at a moment's notice. If the present
Charter envisioned an "automatic" vacancy, it should
have said so in clearer terms. Plainly theconcern of
Section 16 is to ensure compensation for "victims" of
constitutional revamps -whether under the Freedom or
existing Constitution - and only secondarily and
impliedly, toallow reorganization.


In order to be entitled to the benefits granted under
Section 16 of Article XVIII of theConstitution of 1987, two
requisites, one negative and the other positive, must
concur, to wit:1. The separation must not be for cause,
and 2. The separation must be due to any of thethree
situations mentioned.


-By its terms, the authority to remove public officials
under the Provisional Constitutionended on February 25,
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1987, advanced by jurisprudence to February 2, 1987. It
can onlymean, then, that whatever reorganization is
taking place is upon the authority of the presentCharter,
and necessarily, upon the mantle of its provisions and
safeguards. Hence, it cannotbe legitimately stated that we
are merely continuing what the revolutionary
Constitution of the Revolutionary Government had
started. We are through with reorganization under
theFreedom Constitution - the first stage. We are on the
second stage - that inferred from theprovisions of Section
16 of Article XVIII of the permanent basic document.


After February 2, 1987, incumbent officials and
employees have acquired security of tenure.


The present organic act requires that removals "not for
cause" must be as a result of reorganization. As we
observed, the Constitution does not provide for
"automatic" vacancies.It must also pass the test of good
faith. As a general rule, a reorganization is carried out
in"good faith" if it is for the purpose of economy or to
make bureaucracy more efficient. In thatevent, no
dismissal (in case of a dismissal) or separation actually
occurs because the positionitself ceases to exist. And in
that case, security of tenure would not be a Chinese wall.
Be thatas it may, if the "abolition," which is nothing else
but a separation or removal, is done forpolitical reasons
or purposely to defeat security of tenure, or otherwise not
in good faith, novalid "abolition" takes place and whatever
"abolition" is done, is void ab initio. There is aninvalid
"abolition" as where there is merely a change of
nomenclature of positions, or whereclaims of economy are
belied by the existence of ample funds.


The Court finds that Commissioner Mison did not act in
good faith since after February 2,1987 no perceptible
restructuring of the Customs hierarchy - except for the
change of personnel - has occurred, which would have
justified (all things being equal) the contesteddismissals.
There is also no showing that legitimate structural
changes have been made - or areorganization actually
undertaken, for that matter - at the Bureau since
Commissioner Misonassumed office, which would have
validly prompted him to hire and fire employees.


With respect to Executive Order No. 127, Commissioner
Mison submits that under Section 59thereof, "Those
incumbents whose positions are not included therein or
who are notreappointed shall be deemed separated from
the service." He submits that because the 394removed
personnel have not been "reappointed," they are
considered terminated. To beginwith, the Commissioner's
appointing power is subject to the provisions of Executive
Order No.39. Under Executive Order No. 39, the
Commissioner of Customs may "appoint all
Bureaupersonnels except those appointed by the
President." Thus, with respect to DeputyCommissioners
Cesar Dario and Vicente Feria, Jr., Commissioner Mison
could not have validlyterminated them, they being
Presidential appointees.


That Customs employees, under Section 59 of Executive
Order No. 127 had been on a mereholdover status cannot
mean that the positions held by them had become vacant.
Theoccupancy of a position in a holdover capacity was
conceived to facilitate reorganization andwould have
lapsed on 25 February 1987 (under the Provisional
Constitution), but advanced toFebruary 2, 1987 when the
1987 Constitution became effective. After the said date
theprovisions of the latter on security of tenure
governMain Points:1. The President could have validly
removed government employees, elected or appointed,
withoutcause but only before the effectivity of the 1987
Constitution on February 2, 1987. Section 59 (onnon-
reappointment of incumbents) of Executive Order No. 127
cannot be a basis for termination.2. In such a case,
dismissed employees shall be paid separation and
retirement benefits or upontheir option be given
reemployment opportunities3. From February 2, 1987,
the State does not lose the right to reorganize the
Government resultingin the separation of career civil
service employees provided, that such a reorganization is
made in good faith.

PERSONAL NOTE:
1. Concurring Opinion of Justice Cruz
2. Dissenting Opinion of Justice Melencio-Herrera

Ismael Mathay Jr., in his capacity as Mayor of Quezon
City vs. CA, CSC, et al. (Dec. 15, 1999)
Personal Note: 3 consolidated cases

Facts:
In this case Mayor Simon of Quezon City appointed
private respondents to positions in the Civil Service Unit
("CSU") of the local government of Quezon City during his
term. In turn, said CSUs were created pursuant to PD No.
51. However, pursuant to Opinion No. 33 of the
Secretary of Justice rendered Opinion No. 33, PD No. 51
was deemed never "inforce or effect and therefore cannot
at present, be a basis for establishment of the CSUs in
conformity with the SCs ruling in Tanda vs. Tuvera. It
turned out that said PD was not published in the Official
Gazette.

In response, the CSC issued Memorandum Circular No.
30, which directed all Civil Service Regional or Field
Offices to recall, revoke and disapprove within one year
from issuance of the said Memorandum, all appointments
in CSUs created pursuant to PD No. 51 on the ground
that the same never became law. -> The private
respondents in this case were among those affected.

Meanwhile, Quezon City enacted City Ordinance No. NC-
140, Series of 1990, which established the Department of
Public Order and Safety (DPOS). This temporarily
cushioned the effect of the revocation because the
personnel of the CSUs were allegedly absorbed by the
DPOS without reduction of rank and benefits. However,
only contractual appointments were issued to the private
respondents which were not renewed under the term of
Mayor Mathay upon their expiry in 1992.

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PUB OFF 16

This led to the filing of the private respondents of
petitions before the CSC which in turn ordered their
reinstatement.

Mayor Mathay questioned the CSC rulings before the CA,
which the latter dismissed. This is why the case reached
the SC.

Issue: WON the CSC had the authority to reinstate the
private respondents

Held/Ratio: No, the CSC had no authority.

According to the SC, the Local Government Code of 1992
(not the old LGC) is applicable since it was what was in
force when the subject events took place. The Ordinance
enacted by the City was held to be invalid for being
inconsistent with the LGC for providing for the absorption
of former CSU officials into the DPOS and thereby
dictating who shall occupy said positions. This is a power
that is exclusively within the ambit of the local chief
executives power.

Simply put by the SC, the provisions of the LGC are clear.
The power to appoint is vested in the local chief executive.
The power of the city council or sanggunian, on the other
hand, is limited to creating, consolidating and
reorganizing city officers and positions supported by local
funds. The city council has no power to appoint.

The CSC also, by ordering Mayor Mathay to "reinstate"
private respondents pursuant to Section 3 of the
Ordinance, substituted its own judgment for that of the
appointing power. -> AS MENTIONED ABOVE, THIS IS
THE LOCAL CHIEF EXECUTIVE, i.e. MAYOR MATHAY

The Court held that the CSCs power is limited to
approving or disapproving an appointment. It does not
have the authority to direct that an appointment of a
specific individual be made. Once the Civil Service
Commission attests whether the person chosen to fill a
vacant position is eligible, its role in the appointment
process necessarily ends. The Civil Service Commission
cannot encroach upon the discretion vested in the
appointing authority. -> act of CSC ordering the
reinstatement of the private respondents were in the
form of issuing a new appointment, which it cannot
do. Appointment is essentially a discretionary power and
must be performed by the officer in which it is vested. ->
MAYOR MATHAY

The SC also emphasized that even assuming that Section
3 of the Ordinance, the absorption contemplated therein
is not possible because the CSU never legally came into
existence and the private respondents never held
permanent positions. Accordingly, as petitioner correctly
points out, the private respondents appointments in the
defunct CSU were invalid ab initio. Their seniority rights
and permanent status did not arise since they have no
valid appointment. -> HENCE, they cannot be
automatically absorbed by the DPOS.





































































Fabella, Lindsey
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6. De Facto Officers

CASES:

ZOSIMO DIMAANDAL, petitioner vs. COMMISSION ON
AUDIT, respondent
June 26, 1998
Martinez, J.
Doctrine: De facto officer is defined as one who derives
his appointment from one having colorable authority to
appoint, if the office is an appointive office, and whose
appointment is valid on its face. It is likewise defined as
one who is in possession of an office, and is discharging
its duties under color of authority, by which is meant
authority derived from an appointment, however irregular
or informal, so that the incumbent be not a mere
volunteer. Then a de facto officer is one who is in
possession of an office in the open exercise of its
functions under color of an election or an appointment,
even though such election or appointment may be
irregular.


Facts:

Petitioner Dimaandal was a Supply Officer III who
was appointed as Acting Provincial Treasurer for
Batangas by then Gov. Vicente Mayo. This took place
on Nov. 23, 1992.
Pursuant to the designation, Dimaantal filed a claim
for the difference in salary and Representation and
Transportation Allowance (RATA) of Assistant
Provincial Treasurer and Supply Officer III for the
whole year of 1993 in the total amount of
P61,308.00. -> Provincial Auditor diallowed the
P52,908 but allowed the P8,400 (corresponds to the
difference in the allowances attached to the
designation and the position occupied by Dimaantal)
COA gave the following reasons for the diallowance:
o Section 2077 of the Revised Administrative Code
is not applicable in the instant case as the power
to fill the position of Assistant Provincial
Treasurer rests on the Secretary of Finance.
o The designation is temporary in nature and does
not amount to the issuance of an appointment
as could entitle the designee to receive the salary
of the position to which he is designated
(Opinion of the Director, Office for Legal Affairs,
Civil Service Commission dated January 25,
1994).
Governor Mayo appealed the disallowance citing the
following reasons:
o Section 2077 of the Revised Administrative Code
is applicable in the instant case as the same
provides that the Governor General or the officer
having the power to fill-up a temporary absence
or disability in the provincial office has the
power to order or authorize payment of
compensation to any government officer or
employee designated or appointed temporarily to
fill the place;
o That the budget containing an appropriation for
the position of Assistant Provincial Treasurer for
Administration was already approved by the
Provincial Board; and
o That Mr. Dimaandal at the time of his
designation as Acting Provincial Treasurer for
Administration was no longer performing the
duties and functions of Supply Officer III.
DENIED BY THE PROVINCIAL AUDITOR AND
ORDERED REFUND OF P52,908.00
Dimaandal appealed to the COA which sustained the
stand of the Provincial Auditor of Batangas as valid
and proper.
o Basis of the COA: Dimaandal was merely
designated as an Assistant Provincial Treasurer
for Administration in addition to his regular
duties. As such, he is not entitled to receive an
additional salary. He was also designated as
Assistant Provincial Treasurer by Gov. Mayo who
was not a duly competent authority. The COA
noted that Dimaandal was appointed as
Assistant Provincial Treasurer for
Administration by the Secretary of Finance only
on July 8, 1994.
COA also included in the disallowance the P8,400 for
being devoid of legal basis.
Dimaandal filed a Petition before the SC.
Arguments of the Dimaandal:
o Pursuant to the cases of Cui vs. Ortiz and
Menzon vs. Petilla, de facto officers are entitled
to compensation for services actually rendered.
o He is a de facto officer.
o Holding of the COA amounts to deprivation of
property without due process of law, impairment
of obligations and contracts under the
Constitution.

Issue: WON Dimaandal who was designated in an acting
capacity is entitled to the difference in salary between his
regular position and the higher position to which he was
designated

Held/Ratio:
NO.
The SC cited Sec. 471 of the Local Government Code
for the applicable law on Assistant Treasurers.
According to the SC, the appointing officer is
authorized by law to order the payment of
compensation to any government officer or employee
designated or appointed to fill such vacant position is
the President or the Secretary of Finance (Sec. 2077
of the Admin Code). -> IN EFFECT, Gov. Mayo was
unauthorized to appoint Dimaandal.
His designation being defective, such did not confer
any right on Dimaandal to claim the difference in the
salary attached to the position occupied by him.
Fabella, Lindsey
PUB OFF 18

The SC also emphasized that was extended to
Dimaandal was a designation and not an
appointment.
Appointment - is the selection by the proper authority of
an individual who is to exercise the powers and functions
of a given office
Designation - merely connotes an imposition of
additional duties, usually by law, upon a person already
in the public service by virtue of an earlier appointment
This was also the opinion given by the CSC which
while not controlling upon the courts are accorded
great weight and respect - Opinion dated January 25,
1994 of the Office for Legal Affairs, Civil Service
Commission, Re: Evora, Carlos, A. Jr., Designation
The SC also said that non-payment of his salary
differential and RATA was a violation of Dimaandals
constitutional right against deprivation of property
without due process of law and the non-impairment
of obligation of contracts clause in the Constitution
because Dimaandals designation was without color of
authority, the right to the salary or an allowance due
from said office never existed.
The SC also rejected the contention the Dimaandal
was a de facto officer.
De facto officer - is defined as one who derives his
appointment from one having colorable authority to
appoint, if the office is an appointive office, and
whose appointment is valid on its face. It is likewise
defined as one who is in possession of an office, and
is discharging its duties under color of authority, by
which is meant authority derived from an
appointment, however irregular or informal, so that
the incumbent be not a mere volunteer. Then a de
facto officer is one who is in possession of an office in
the open exercise of its functions under color of an
election or an appointment, even though such
election or appointment may be irregular.
Finally, the SC held that the subsequent appointment
of Dimaandal to the position on July 8, 1994, cannot
justify petitioners retention of the excess amount of
P61,308.00, which corresponds to the amount
disallowed and ordered refunded by COA representing
the salary and RATA in excess of what was due him
in 1993.

DIMAANDALs PETITION WAS DISMISSED.

LEYTE ACTING VICE-GOVERNOR AURELIO D.
MENZON, petitioner vs. LEYTE ACTING GOVERNOR,
LEOPOLDO E. PETILLA, in his capacity as Chief
Executive of the Province of Leyte and Head of
Sangguniang Panlalawigan and Leyte Provincial
Treasurer FLORENCIO LUNA, respondents
May 20, 1991
Gutierrez, J.
Doctrine:

Facts:
The Secretary of Local Government Luis Santos
designated the Vice-Governor, Leopoldo E. Petilla as
Acting Governor of Leyte because no governor has yet
to be proclaimed on February 16, 1988 (there was an
election controversy re: Larrazabal)
Consequently, petitioner Aurelio D. Menzon, a senior
member of the Sangguniang Panlalawigan was also
designated by Secretary Luis Santos to act as the
Vice-Governor for the province of Leyte. -> He took
his oath of office before Senator Alberto Romulo on
March 29, 1988.
An inquiry was made by the Provincial Administrator,
Tente U. Quintero from the Undersecretary of the
Department of Local Government, Jacinto T. Rubillar,
Jr., as to the legality of the appointment of Menzon.
Rubillar replied that since the Local Government
Code has no provision relating to succession in the
Office of the Vice-Governor in case of a temporary
vacancy, the appointment of Menzon as the
temporary Vice- Governor is not necessary since the
Vice-Governor who is temporarily performing the
functions of the Governor, could concurrently assume
the functions of both offices.
Because of the aforementioned, the Sangguniang
Panlalawigan, held a special session where it issued
Resolution No. 505.
o SP held as invalid the appointment of the
Menzon
Understandably, Menzon sought clarification from
Undersecretary Rubillar.
Rubillar upheld the need for the designation of a
Sanggunian member to temporarily act as Vice Gov:
o there is no succession provided for in case of
temporary vacancy in the office of the vice-
governor and that the designation of a temporary
vice-governor is not necessary
o The fact that the SP member was temporarily
designated to perform the functions of the vice-
governor could not be considered that the
Sangguniang member succeeds to the office of
the latter, for it is basic that designation is merely
an imposition of additional duties to be performed
by the designee in addition to the official
functions attached to his office
o the necessity of designating an official to
temporarily perform the functions of a particular
public office, would depend on the discretion of
the appointing authority and the prevailing
circumstances in a given area and by taking into
consideration the best interest of public service
Because of Rubillars clarification, Menzon wrote
Acting Gov. Petilla to and the SP to modify Res. No.
505 accordingly. This was followed by another letter
reiterating said request. -> Petilla and the SP refused
to modify Resolution No. 505 and correspondingly to
pay the Menzon the emoluments attached to the
Office of Vice-Governor.
This led Menzon to file before this Court a petition for
certiorari and mandamus seeking the nullification of
Resolution No. 505 and for the payment of his salary
for his services as the acting Vice-Governor of Leyte.
During the pendency of the case before the SC, the
issue on the governorship of Leyte was settled and
Adelina Larrazabal was proclaimed the Governor of
the province of Leyte.
Also, the provincial treasurer of Leyte, Florencio Luna
allowed the payment to the petitioner of his salary as
acting Vice-Governor of Leyte in the amount of
P17,710.00, for the actual services rendered by the
Fabella, Lindsey
PUB OFF 19

petitioner as acting Vice-Governor.
SC: dismissed Menzons petition.
On September 6, 1990, Petilla, by virtue of the above
resolution requested Governor Larrazabal to direct
the Menzon to pay back to the province of Leyte all
the emoluments and compensation which he received
while acting as the Vice-Governor of Leyte.
Menzon filed an MR before the SC praying that his
right to receive the salary and emoluments attached
to the office of the Vice-Governor while he was acting
as such be upheld.

Issues:
1. WON there was a vacancy
2. WON the Secretary of Local Government has the
authority to make temporary appointments

Held/Ratio:
1. Yes, there was a vacancy in this case.
The SC upheld the rule that there is a vacancy when
there is no person lawfully authorized to assume and
exercise at present the duties of the office.
According to the SC, it is apparent that the office of
the Vice-Governor was left vacant when the duly
elected Vice-Governor Leopoldo Petilla was appointed
Acting Governor. -> In the eyes of the law, the office
to which he was elected was left barren of a legally
qualified person to exercise the duties of the office of
the Vice-Governor.
Notably, there was also no evidence that Petilla
exercised the dual capacity of Gov. and Vice Gov.

2. Yes, the Sec. of Local Gov. had the authority
to designate Menzon as Acting Vice Gov.
The SC held that the LGC is silent on the mode of
succession in the event of a temporary vacancy in the
Office of the Vice-Governor. However, the silence of
the law must not be understood to convey that a
remedy in law is lacking.
The Court explained that in this case, there had
already been a 2-year period wherein no de jure
governor in Leyte. To avoid disruptions and delays in
the delivery of basic services to the people and in the
proper management of the affairs of the local
government of Leyte, the Sec of Loc Gov sought to
remedy the situation.
Because of the silence of the LGC and in order to
obviate the dilemma resulting from an interregnum
created by the vacancy, the President, acting through
her alter ego, the Secretary of Local Government, may
remedy the situation and appoint Menzon in an
acting capacity.
Thus, the SC upheld the validity of Menzons
appointment pursuant to the authority of the Sec.
of Loc Gov as the Pres. Alter ego to appoint him
as such. Simply put, the appointment has the
color of validity.

SC GRANTED MENZONs MR. The additional
compensation which he has received, in the amount
exceeding the salary authorized by law for the
position of Senior Board Member, shall be considered
as payment for the actual services rendered as
acting Vice-Governor and may be retained by him.

LUIS MALALUAN, petitioner vs. COMMISSION ON
AUDIT and JOSEPH EVANGELISTA, respondents
March 6, 1996
Hermosisima, Jr., J.
Doctrine: A usurper is one who undertakes to act
officially without any color of right, the petitioner
exercised the duties of an elective office under color of
election thereto. On the other hand, a de facto officer is
one who, in good faith, has had possession of the office
and had discharged the duties pertaining thereto and is
thus legally entitled to the emoluments of the office.

Facts:
Malaluan and Evangelista were both candidates for
the Mayor position in the Municipality of Kidapawan,
North Cotabato, in the Synchronized National and
Local Elections held on May 11, 1992.
Municipal Board of Canvassers proclaimed
Evangelista as the winner garnering 10,498 votes,
706 more than Malaluan.
Malaluan filed a protest before the RTC.
RTC: declalred Malaluan as the duly elected Mayor of
Kidapawan by a margin of 154 votes. The court also
declared that Evangelista was liable not only for
Malaluans protest expenses but also for moral and
exemplary damages and attorneys fees.
Evangelista appealed the RTC decision to the
COMELEC.
Malaluan filed a motion for execution pending
appeal. -> granted by the RTC after Malaluan posted
a bond in the amount of P500,000.00. By virtue of
said order, petitioner assumed the office of MunicipaJ
Mayor of Kidapawan, North Cotabato, and exercised
the powers and functions of said office.
COMELEC: held in favor of Evangelista and ordered
Malaluan to vacate the Mayors office. Also held
Malaluan liable for attorneys fees, actual expenses
for xerox copies, and unearned salary and other
emoluments from March, 1994 to April, 1995, en
mUsse denominated as actual damages, default in
payment by petitioner of which shall result in the
collection of said amount from the bond posted by
petitioner on the occasion of the grant of his motion
for execution pending appeal in the trial court.
Malaluan filed a Petition for Certiorari and Prohibition
before the SC, with a prayer for a TRO and
Preliminary Injunction on December 1995.
The SC noted that the term of office of the local
officials elected in the May 1992 elections expired on
June 30, 1995.

Issue: WON the COMELECs award of damages in favor of
Evangelista was proper

Held/Ratio:
No, COMELEC was wrong.
First, the SC ruled that the COMELEC improperly
awarded salaries and emoluments in favor of
Evangelista because it improperly applied the case of
Rodriguez v. Tan (there, the official ousted was the
one proclaimed by the COMELEC while in the instant
case, petitioner was proclaimed winner only by the
trial court and assumed office by virtue of an order
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granting execution pending appeal).
Theory of the COMELEC: since Malaluan was
adjudged the winner in the elections only by the trial
court and assumed the functions of the office on the
strength merely of an order granting execution
pending appeal, the petitioner occupied the position
in an illegal manner as a usurper.
According to the SC, Malaluan was not a usurper
because, while a usurper is one who undertakes to
act officially without any color of right, the petitioner
exercised the duties of an elective office under color of
election thereto.
It further explained that it does not matter that it was
the RTC and not the COMELEC that declared
Malaluan as the winner, because both, at different
stages of the electoral process, have the power to so
proclaim winners in electoral contests.
The court held that Malaluan was a de facto officer
who, in good faith, has had possession of the office
and had discharged the duties pertaining thereto
and is thus legally entitled to the emoluments of the
office.
Additional note: The SC cited Section 259 of the
Omnibus Election Code which only provides for the
granting in election cases of actual and compensatory
damages in accordance with law. The victorious
party in an election case cannot be indemnified for
expenses which he has incurred in an electoral
contest in the absence of a wrongful act or omission
or breach of obligation clearly attributable to the
losing party.

SC upheld Evangelistas proclamation as Mayor but
held VOID COMELECs award of salaries,
emoluments, etc.

ROBERTO FLORES, DANIEL FIGUEROA, ROGELIO
PALO, DOMINGO JADLOC, CARLITO CRUZ and
MANUEL REYES, petitioners vs. HON. FRANKLIN
DRILON, Exec. Sec. and RICHARD GORDON,
respondents.
June 22, 1993
Bellosillo, J.
Doctrine:

Facts:
The petitioners in this case are taxpayers who
assailed the constitutionality of Sec. 13 par. D of RA
7227 (Bases Conversion and Development Act of
1992).
Thru said law, the President appointed Mayor
Richard Gordon of Olongapo City as Chairman and
Chief Executive Officer of the Subic Bay Metropolitan
Authority (SBMA).
According to the petitioners, they filed the instant
case because Sec. 13 par. D of RA 7227 infringes on
the following constitutional and statutory provisions:
(a) Sec. 7, first par., Art. IX-B, of the Constitution,
which states that "[n]o elective official shall be eligible
for appointment or designation in any capacity to any
public officer or position during his tenure,"

because
the City Mayor of Olongapo City is an elective official
and the subject posts are public offices;
(b) Sec. 16, Art. VII, of the Constitution, which
provides that "[t]he President shall . . . . appoint all
other officers of the Government whose appointments
are not otherwise provided for by law, and those
whom he may be authorized by law to appoint",

since
it was Congress through the questioned proviso and
not the President who appointed the Mayor to the
subject posts;

and,
(c) Sec. 261, par. (g), of the Omnibus Election Code
for the reason that the appointment of respondent
Gordon to the subject posts made by respondent
Executive Secretary on 3 April 1992 was within the
prohibited 45-day period prior to the 11 May 1992
Elections.

Issue: WON Sec. 13 par. D of RA 7227 was constitutional

Held/Ratio:


The proviso
directs the
president to
appoint an
elective e
official as chair
of SBMA which
is
exactly what the
consti
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proscription
seeks to prevent


sec.94 LGC
permits the
appointment of
an elective
official to
another post if
so allowed by
law
or by primary
functions of his
office. However,
no legislative
act can prevail
over the
fundamental law
of the land.


it is argued that
the SBMA posts
are ex officio to
the position of
the mayor of
Olongapo and is
thus an
exception to the
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proscription.
The argument is
based on a
wrong premise
since
Congress did
not contemplate
the SBMA posts
as ex officio or
automatically
attached to the
Office of the
Mayor of
Olongapo w/o
need of
appointment.
The phrase
shall be
appointed
shows the intent
to make the
SBMA posts
appointive.


the proviso is a
legislative
encroachment
on the power of
the president to
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appoint as it
already
specified the
person who is to
occupy the
position and the
president has no
choice
under the law
but to appoint
the mayor of
olongapo.


being an
elective official,
Gordon is not
eligible for
appointment to
the position of
SBMA
chair. His
appointment
pursuant to a
le3gislation
contravening the
consti cannot be
sustained.
However, he
remains to be
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the mayor of
Olongapo and
his acts as
SBMA Chair
are not
necessarily void
since he may be
deemed as a de
facto officer=
one whose acts,
though not
those of a lawful
officer, the law,
upon principles
of policy and
justice, will hold
valid so far as
they involve the
interest of the
public and 3rd
persons, where
the duties of the
office were
exercised under
color of a
known election
or appointment ,
void because the
officer was not
eligible, or
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because there
was a want of
power in the
appointing
body, or by
reason of some
defect or
irregularity in its
exercise, or
under color of
an election or
appointment by
or
pursuant to a
public
unconstitutional
law before the
same is
adjudged to be
such.


in accordance
w/ the ruling in
CLU
emoluments
received by
Gordon pursuant
to his
appointment
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may be retained
by him