Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 14129

July 31, 1962

PEOPLE OF THE PHILIPPINES, plaintiff-appellant,

vs.
GUILLERMO MANANTAN, defendant-appellee.

Office of the Solicitor General for plaintiff-appellant.

Padilla Law Office for defendant-appellee.
REGALA, J.:
This is an appeal of the Solicitor General from the order of
the Court of First Instance of Pangasinan dismissing the
information against the defendant.
The records show that the statement of the case and the
facts, as recited in the brief of plaintiff-appellant, is
complete and accurate. The same is, consequently, here
adopted, to wit:
In an information filed by the Provincial Fiscal of
Pangasinan in the Court of First Instance of that
Province, defendant Guillermo Manantan was
charged with a violation Section 54 of the Revised
Election Code. A preliminary investigation conducted
by said court resulted in the finding a probable cause
that the crime charged as committed by defendant.
Thereafter, the trial started upon defendant's plea of
not guilty, the defense moved to dismiss the

information on the ground that as justice of the

peace the defendant is one of the officers
enumerated in Section 54 of the Revised Election
Code. The lower court denied the motion to dismiss
holding that a justice of the peace is within the
purview Section 54. A second motion was filed by
defense counsel who cited in support thereof the
decision of the Court of Appeals in People vs.
Macaraeg, (CA-G.R. No. 15613-R, 54 Off. Gaz., pp.
1873-76) where it was held that a justice of the
peace is excluded from the prohibition of Section 54
of the Revised Election Code. Acting on this second
motion to dismiss, the answer of the prosecution, the
reply of the defense, and the opposition of the
prosecution, the lower court dismissed the
information against the accused upon the authority
of the ruling in the case cited by the defense.
Both parties are submitting this case upon the
determination of this single question of law: Is a justice
the peace included in the prohibition of Section 54 of the
Revised Election Code?
Section 54 of the said Code reads:
No justice, judge, fiscal, treasurer, or assessor of any
province, no officer or employee of the Army, no
member of the national, provincial, city, municipal or
rural police force and no classified civil service officer
or employee shall aid any candidate, or exert any
influence in any manner in a election or take part
therein, except to vote, if entitled thereto, or to
preserve public peace, if he is a peace officer.

Defendant-appellee argues that a justice of the peace is

not comprehended among the officers enumerated in
Section 54 of the Revised Election Code. He submits the
aforecited section was taken from Section 449 of the
Revised Administrative Code, which provided the
following:
SEC. 449. Persons prohibited from influencing
elections. No judge of the First Instance, justice of
the peace, or treasurer, fiscal or assessor of any
province and no officer or employee of the Philippine
Constabulary, or any Bureau or employee of the
classified civil service, shall aid any candidate or
exert influence in any manner in any election or take
part therein otherwise than exercising the right to
vote.
When, therefore, section 54 of the Revised Election Code
omitted the words "justice of the peace," the omission
revealed the intention of the Legislature to exclude
justices of the peace from its operation.
The above argument overlooks one fundamental fact. It is
to be noted that under Section 449 of the Revised
Administrative Code, the word "judge" was modified or
qualified by the phrase "of First instance", while under
Section 54 of the Revised Election Code, no such
modification exists. In other words, justices of the peace
were expressly included in Section 449 of the Revised
Administrative Code because the kinds of judges therein
were specified, i.e., judge of the First Instance and justice
of the peace. In Section 54, however, there was no
necessity therefore to include justices of the peace in the
enumeration because the legislature had availed itself of

the more generic and broader term, "judge." It was a

term not modified by any word or phrase and was
intended to comprehend all kinds of judges, like judges of
the courts of First Instance, Judges of the courts of
Agrarian Relations, judges of the courts of Industrial
Relations, and justices of the peace.
It is a well known fact that a justice of the peace is
sometimes addressed as "judge" in this jurisdiction. It is
because a justice of the peace is indeed a judge. A
"judge" is a public officer, who, by virtue of his office, is
clothed with judicial authority (U.S. v. Clark, 25 Fed. Cas.
441, 422). According to Bouvier Law Dictionary, "a judge
is a public officer lawfully appointed to decide litigated
questions according to law. In its most extensive sense
the term includes all officers appointed to decide litigated
questions while acting in that capacity, including justices
of the peace, and even jurors, it is said, who are judges of
facts."
A review of the history of the Revised Election Code will
help to justify and clarify the above conclusion.
The first election law in the Philippines was Act 1582
enacted by the Philippine Commission in 1907, and which
was later amended by Act. Nos. 1669, 1709, 1726 and
1768. (Of these 4 amendments, however, only Act No.
1709 has a relation to the discussion of the instant case
as shall be shown later.) Act No. 1582, with its
subsequent 4 amendments were later on incorporated
Chapter 18 of the Administrative Code. Under the
Philippine Legislature, several amendments were made
through the passage of Acts Nos. 2310, 3336 and 3387.
(Again, of these last 3 amendments, only Act No. 3587

has pertinent to the case at bar as shall be seen later.)

During the time of the Commonwealth, the National
Assembly passed Commonwealth Act No. 23 and later on
enacted Commonwealth Act No. 357, which was the law
enforced until June 1947, when the Revised Election Code
was approved. Included as its basic provisions are the
provisions of Commonwealth Acts Nos. 233, 357, 605,
666, 657. The present Code was further amended by
Republic Acts Nos. 599, 867, 2242 and again, during the
session of Congress in 1960, amended by Rep. Acts Nos.
3036 and 3038. In the history of our election law, the
following should be noted:
Under Act 1582, Section 29, it was provided:
No public officer shall offer himself as a candidate for
elections, nor shall he be eligible during the time that
he holds said public office to election at any
municipal, provincial or Assembly election, except for
reelection to the position which he may be holding,
and no judge of the First Instance, justice of the
peace, provincial fiscal, or officer or employee of the
Philippine Constabulary or of the Bureau of Education
shall aid any candidate or influence in any manner or
take part in any municipal, provincial, or Assembly
election under the penalty of being deprived of his
office and being disqualified to hold any public office
whatsoever for a term of 5 year: Provide, however,
That the foregoing provisions shall not be construe to
deprive any person otherwise qualified of the right to
vote it any election." (Enacted January 9, 1907; Took
effect on January 15, 1907.)
Then, in Act 1709, Sec. 6, it was likewise provided:

. . . No judge of the First Instance, Justice of the

peace provincial fiscal or officer or employee of the
Bureau of Constabulary or of the Bureau of Education
shall aid any candidate or influence in any manner to
take part in any municipal provincial or Assembly
election. Any person violating the provisions of this
section shall be deprived of his office or employment
and shall be disqualified to hold any public office or
employment whatever for a term of 5 years,
Provided, however, that the foregoing provisions
shall not be construed to deprive any person
otherwise qualified of the right to vote at any
election. (Enacted on August 31, 1907; Took effect
on September 15, 1907.)
Again, when the existing election laws were incorporated
in the Administrative Code on March 10, 1917, the
provisions in question read:
SEC. 449. Persons prohibited from influencing
elections. No judge of the First Instance, justice of
the peace, or treasurer, fiscal or assessor of any
province and no officer or employee of the Philippine
Constabulary or any Bureau or employee of the
classified civil service, shall aid any candidate or
exert influence in any manner in any election or take
part therein otherwise than exercising the right to
vote. (Emphasis supplied)
After the Administrative Code, the next pertinent
legislation was Act No. 3387. This Act reads:
SEC. 2636. Officers and employees meddling with the
election. Any judge of the First Instance, justice of

the peace, treasurer, fiscal or assessor of any

province, any officer or employee of the Philippine
Constabulary or of the police of any municipality, or
any officer or employee of any Bureau of the
classified civil service, who aids any candidate or
violated in any manner the provisions of this section
or takes part in any election otherwise by exercising
the right to vote, shall be punished by a fine of not
less than P100.00 nor more than P2,000.00, or by
imprisonment for not less than 2 months nor more
than 2 years, and in all cases by disqualification from
public office and deprivation of the right of suffrage
for a period of 5 years. (Approved December 3,
1927.) (Emphasis supplied.)
Subsequently, however, Commonwealth Act No. 357 was
enacted on August 22, 1938. This law provided in Section
48:
SEC. 48. Active Interventation of Public Officers and
Employees. No justice, judge, fiscal, treasurer or
assessor of any province, no officer or employee of
the Army, the Constabulary of the national,
provincial, municipal or rural police, and no classified
civil service officer or employee shall aid any
candidate, nor exert influence in any manner in any
election nor take part therein, except to vote, if
entitled thereto, or to preserve public peace, if he is a
peace officer.
This last law was the legislation from which Section 54 of
the Revised Election Code was taken.

It will thus be observed from the foregoing narration of

the legislative development or history of Section 54 of the
Revised Election Code that the first omission of the word
"justice of the peace" was effected in Section 48 of
Commonwealth Act No. 357 and not in the present code
as averred by defendant-appellee. Note carefully,
however, that in the two instances when the words
"justice of the peace" were omitted (in Com. Act No. 357
and Rep. Act No. 180), the word "judge" which preceded
in the enumeration did not carry the qualification "of the
First Instance." In other words, whenever the word
"judge" was qualified by the phrase "of the First
Instance", the words "justice of the peace" would follow;
however, if the law simply said "judge," the words
"justice of the peace" were omitted.
The above-mentioned pattern of congressional
phraseology would seem to justify the conclusion that
when the legislature omitted the words "justice of the
peace" in Rep. Act No. 180, it did not intend to exempt
the said officer from its operation. Rather, it had
considered the said officer as already comprehended in
the broader term "judge".
It is unfortunate and regrettable that the last World War
had destroyed congressional records which might have
offered some explanation of the discussion of Com. Act
No. 357 which legislation, as indicated above, has
eliminated for the first time the words "justice of the
peace." Having been completely destroyed, all efforts to
seek deeper and additional clarifications from these
records proved futile. Nevertheless, the conclusions
drawn from the historical background of Rep. Act No. 180
is sufficiently borne out by reason hid equity.

Defendant further argues that he cannot possibly be

among the officers enumerated in Section 54 inasmuch as
under that said section, the word "judge" is modified or
qualified by the phrase "of any province." The last
mentioned phrase, defendant submits, cannot then refer
to a justice of the peace since the latter is not an officer
of a province but of a municipality.
Defendant's argument in that respect is too strained. If it
is true that the phrase "of any province" necessarily
removes justices of the peace from the enumeration for
the reason that they are municipal and not provincial
officials, then the same thing may be said of the Justices
of the Supreme Court and of the Court of Appeals. They
are national officials. Yet, can there be any doubt that
Justices of the Supreme Court and of the Court of Appeals
are not included in the prohibition? The more sensible
and logical interpretation of the said phrase is that it
qualifies fiscals, treasurers and assessors who are
generally known as provincial officers.
The rule of "casus omisus pro omisso habendus est" is
likewise invoked by the defendant-appellee. Under the
said rule, a person, object or thing omitted from an
enumeration must be held to have been omitted
intentionally. If that rule is applicable to the present, then
indeed, justices of the peace must be held to have been
intentionally and deliberately exempted from the
operation of Section 54 of the Revised Election Code.
The rule has no applicability to the case at bar. The
maxim "casus omisus" can operate and apply only if and
when the omission has been clearly established. In the
case under consideration, it has already been shown that

the legislature did not exclude or omit justices of the

peace from the enumeration of officers precluded from
engaging in partisan political activities. Rather, they were
merely called by another term. In the new law, or Section
54 of the Revised Election Code, justices of the peace
were just called "judges."
In insisting on the application of the rule of "casus
omisus" to this case, defendant-appellee cites authorities
to the effect that the said rule, being restrictive in nature,
has more particular application to statutes that should be
strictly construed. It is pointed out that Section 54 must
be strictly construed against the government since
proceedings under it are criminal in nature and the
jurisprudence is settled that penal statutes should be
strictly interpreted against the state.
Amplifying on the above argument regarding strict
interpretation of penal statutes, defendant asserts that
the spirit of fair play and due process demand such strict
construction in order to give "fair warning of what the
law intends to do, if a certain line is passed, in language
that the common world will understand." (Justice
Holmes, in McBoyle v. U.S., 283 U.S. 25, L. Ed. 816).
The application of the rule of "casus omisus" does not
proceed from the mere fact that a case is criminal in
nature, but rather from a reasonable certainty that a
particular person, object or thing has been omitted from a
legislative enumeration. In the present case, and for
reasons already mentioned, there has been no such
omission. There has only been a substitution of terms.

The rule that penal statutes are given a strict

construction is not the only factor controlling the
interpretation of such laws; instead, the rule merely
serves as an additional, single factor to be considered as
an aid in determining the meaning of penal laws. This has
been recognized time and again by decisions of various
courts. (3 Sutherland, Statutory Construction, p. 56.)
Thus, cases will frequently be found enunciating the
principle that the intent of the legislature will govern
(U.S. vs. Corbet, 215 U.S. 233). It is to be noted that a
strict construction should not be permitted to defeat the
policy and purposes of the statute (Ash Sheep Co. v. U.S.,
252 U.S. 159). The court may consider the spirit and
reason of a statute, as in this particular instance, where a
literal meaning would lead to absurdity, contradiction,
injustice, or would defeat the clear purpose of the law
makers (Crawford, Interpretation of Laws, Sec. 78, p.
294). A Federal District court in the U.S. has well said:
The strict construction of a criminal statute does not
mean such construction of it as to deprive it of the
meaning intended. Penal statutes must be construed
in the sense which best harmonizes with their intent
and purpose. (U.S. v. Betteridge 43 F. Supp. 53, 56,
cited in 3 Sutherland Statutory Construction 56.)
As well stated by the Supreme Court of the United States,
the language of criminal statutes, frequently, has been
narrowed where the letter includes situations
inconsistent with the legislative plan (U.S. v. Katz, 271
U.S. 354; See also Ernest Brunchen, Interpretation of the
Written Law (1915) 25 Yale L.J. 129.)

Another reason in support of the conclusion reached

herein is the fact that the purpose of the statute is to
enlarge the officers within its purview. Justices of the
Supreme Court, the Court of Appeals, and various judges,
such as the judges of the Court of Industrial Relations,
judges of the Court of Agrarian Relations, etc., who were
not included in the prohibition under the old statute, are
now within its encompass. If such were the evident
purpose, can the legislature intend to eliminate the
justice of the peace within its orbit? Certainly not. This
point is fully explained in the brief of the Solicitor
General, to wit:
On the other hand, when the legislature eliminated
the phrases "Judge of First Instance" and justice of
the peace", found in Section 449 of the Revised
Administrative Code, and used "judge" in lieu
thereof, the obvious intention was to include in the
scope of the term not just one class of judges but all
judges, whether of first Instance justices of the
peace or special courts, such as judges of the Court
of Industrial Relations. . . . .
The weakest link in our judicial system is the justice
of the peace court, and to so construe the law as to
allow a judge thereof to engage in partisan political
activities would weaken rather than strengthen the
judiciary. On the other hand, there are cogent
reasons found in the Revised Election Code itself why
justices of the peace should be prohibited from
electioneering. Along with Justices of the appellate
courts and judges of the Court of First Instance, they
are given authority and jurisdiction over certain
election cases (See Secs. 103, 104, 117-123).

Justices of the peace are authorized to hear and

decided inclusion and exclusion cases, and if they are
permitted to campaign for candidates for an elective
office the impartiality of their decisions in election
cases would be open to serious doubt. We do not
believe that the legislature had, in Section 54 of the
Revised Election Code, intended to create such an
unfortunate situation. (pp. 708, Appellant's Brief.)
Another factor which fortifies the conclusion reached
herein is the fact that the administrative or executive
department has regarded justices of the peace within the
purview of Section 54 of the Revised Election Code.
In Tranquilino O. Calo, Jr. v. The Executive Secretary, the
Secretary of Justice, etc. (G.R. No. L-12601), this Court
did not give due course to the petition for certiorari and
prohibition with preliminary injunction against the
respondents, for not setting aside, among others,
Administrative Order No. 237, dated March 31, 1957, of
the President of the Philippines, dismissing the petitioner
as justice of the peace of Carmen, Agusan. It is worthy of
note that one of the causes of the separation of the
petitioner was the fact that he was found guilty in
engaging in electioneering, contrary to the provisions of
the Election Code.
Defendant-appellee calls the attention of this Court to
House Bill No. 2676, which was filed on January 25, 1955.
In that proposed legislation, under Section 56, justices of
the peace are already expressly included among the
officers enjoined from active political participation. The
argument is that with the filing of the said House Bill,
Congress impliedly acknowledged that existing laws do

not prohibit justices of the peace from partisan political

activities.
The argument is unacceptable. To begin with, House Bill
No. 2676 was a proposed amendment to Rep. Act No. 180
as a whole and not merely to section 54 of said Rep. Act
No. 180. In other words, House Bill No. 2676 was a
proposed re-codification of the existing election laws at
the time that it was filed. Besides, the proposed
amendment, until it has become a law, cannot be
considered to contain or manifest any legislative intent. If
the motives, opinions, and the reasons expressed by the
individual members of the legislature even in debates,
cannot be properly taken into consideration in
ascertaining the meaning of a statute (Crawford,
Statutory Construction, Sec. 213, pp. 375-376),
a fortiori what weight can We give to a mere draft of a
bill.
On law reason and public policy, defendant-appellee's
contention that justices of the peace are not covered by
the injunction of Section 54 must be rejected. To accept it
is to render ineffective a policy so clearly and
emphatically laid down by the legislature.
Our law-making body has consistently prohibited justices
of the peace from participating in partisan politics. They
were prohibited under the old Election Law since 1907
(Act No. 1582 and Act No. 1709). Likewise, they were so
enjoined by the Revised Administrative Code. Another
which expressed the prohibition to them was Act No.
3387, and later, Com. Act No. 357.

Lastly, it is observed that both the Court of Appeals and

the trial court applied the rule of "expressio unius, est
exclusion alterius" in arriving at the conclusion that
justices of the peace are not covered by Section 54. Said
the Court of Appeals: "Anyway, guided by the rule of
exclusion, otherwise known as expressio unius est
exclusion alterius, it would not be beyond reason to infer
that there was an intention of omitting the term "justice
of the peace from Section 54 of the Revised Election
Code. . . ."
The rule has no application. If the legislature had
intended to exclude a justice of the peace from the
purview of Section 54, neither the trial court nor the
Court of Appeals has given the reason for the exclusion.
Indeed, there appears no reason for the alleged change.
Hence, the rule of expressio unius est exclusion
alterius has been erroneously applied. (Appellant's Brief,
p. 6.)
Where a statute appears on its face to limit the
operation of its provisions to particular persons or
things by enumerating them, but no reason exists
why other persons or things not so enumerated
should not have been included, and manifest
injustice will follow by not so including them, the
maxim expressio unius est exclusion alterius, should
not be invoked. (Blevins v. Mullally 135 p. 307, 22
Cal. App. 519.) .
FOR THE ABOVE REASONS, the order of dismissal entered
by the trial court should be set aside and this case is
remanded for trial on the merits.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-29837

August 1, 1928

THE DIRECTOR OF LANDS, in behalf of the Government of

the Philippine Islands, petitioner,
vs.
THE COURT OF FIRST INSTANCE OF TARLAC, ET
AL., respondents.

Attorney-General Jaranilla and Office of the SolicitorGeneral Reyes for petitioner.

Eduardo Gutierrez Repide for respondents.
Jose D. Domingo for homesteaders Timoteo Fernandez, et
al.
VILLA-REAL, J.:
The ground for this petition for a writ of certiorari is that
the respondent court has exceeded its jurisdiction in
ordering the issuance of a writ of possession in cadastral
proceeding No. 15 of the Court of First Instance of Tarlac
(G. L. R. O. Record No. 22), entitled the Director of Lands,
applicant, vs. Juliana Abaya et al., claimants, in favor of
the herein respondents surnamed Villa-Abrille, pending
the approval in said court of the bill of exceptions
presented by the petitioner, to perfect the appeal taken

by him from the judgment of the respondent court

decreeing the adjudication and registration of the parcels
of land in question, and it is prayed that an order be
issued requiring the respondent court to forward and
certify to this court the record of the proceedings in
question, in order that they may be reviewed by this court
and that in due time the proceedings had and orders
issued with respect to said writ of possession be held void
and of no effect.
From the solution of the question of procedure raised in
the present appeal, the following are the necessary and
pertinent facts gathered from the pleadings and evidence
in the record.
The Villa-Abrille brothers, respondents herein, applied for
the confirmation and registration of their title to certain
parcels of land in accordance with the Land Registration
Law, which originated proceeding No. 369 (G. L. R. O.
Record No. 14366). During the pendency of said
registration proceeding, cadastral proceeding No. 15 was
instituted in the Court of First Instance of Tarlac (G. L. R.
O. Record No. 225), in which the Director of Lands was
the applicant and Juliana Abaya and others, the
claimants, and which induced the two parcels of land
covered by said application, which were also claimed by
the same parties in the aforesaid registration proceeding,
each party alleging to have been in possession of the
same. Both cases having been jointly heard and
submitted for decision, the presiding judge of the Court of
First Instance of Tarlac applied for a vacation.
While said proceedings were in this state, the justice of
the peace of the capital of Tarlac, exercising the

jurisdiction delegated to him by the Judge of the Court of

First Instance of Tarlac, and upon petition of the Director
of Lands issued a writ or preliminary injunction ex parte
against the herein respondents, the Villa-Abrille brothers,
claimants in said proceedings, forbidding them to enter
upon said lands. Said respondents immediately moved for
the dissolution of the said injunction, but this petition
was denied by the court, which, however, ordered those
represented by the Director of Lands, to give a bond of
P12,000 in order that said injunction might stand.
Upon the return of the Judge of the Court of First
Instance from his vacation, the said respondents, the
Villa-Abrille brothers, filed another motion for the
dissolution of the injunction, with a complaint for
indemnity of damages. After the proper evidence had
been introduced, the Court of First Instance of Tarlac
rendered judgment in favor of said respondents awarding
them damages, and vacating the writ of preliminary
injunction issued on April 30, 1927, by the justice of the
peace of the capital, the Villa-Abrilles entering upon the
possession of the land in question. In order to avoid being
disturbed in the possession of said land, the
aforementioned respondents Villa-Abrille applied for a
writ of possession, which was granted by the lower court,
a decree being issued on May 11, 1928, ordering that the
possession of the lands adjudicated to them in the
judgment rendered in the cadastral proceeding be given
them, notwithstanding the appeal taken from said
judgment, unless the opponents gave a bond in the sum
of P7,000. Counsel for the Director of Lands took
exception to this ruling and filed a motion for
reconsideration, which was denied by the court.

In view of the facts just related, the question arises as to

whether or not the respondent court exceeded its powers
in issuing a writ ordering that the petitioners be placed in
the possession of the lands to which a decree of
confirmation and registration of title had been issued in
their favor, which was expected to by the opponents, who
appealed and presented a bill of exceptions, the approval
of which is still pending.
The pertinent part of section 17 of Act No. 496, as
amended by section 3 of Act No. 1680, reads as follows:
SEC. 17. The court of Land Registration, in all matters
over which it has jurisdiction, may enforce its orders,
judgments, or decrees in the same manner as orders,
judgments, and decrees are enforced in the Courts of
First Instance, including a writ of possession
directing the governor or sheriff of any province, or
the sheriff of the City of Manila, to place the
applicant in possession of the property covered by a
decree of the court in his favor; . . .
The petitioner maintains that this legal provision does not
authorize the issuance of a writ of possession except
when there is a final decree of registration and not a
mere confirmation of title subject to an appeal, and that
the provisions of the Code of Civil Procedure relative to
the execution of judgments are inapplicable to the writ of
possession in registration cases, citing in support of this
contention the case of Manlapas and Tolentino vs.
Llorente (48 Phil., 298), wherein the court said:
The law has not made applicable to the writ of
possession provided for in section 17 of Act No. 496

and its amendments, the provisions of the Code of

Civil Procedure regarding execution of judgments.
In said case, the precise questions raised were whether
the successor of an applicant in whose favor a decree of
registration had been issued can ask for the issuance of a
writ of possession after five years had elapsed since said
decree had become final, and whether the right to ask for
the execution of said decree through the issuance of a
writ of possession had prescribed.
When this court said, in the above-quoted decision, that
the provisions of the Code of Civil Procedure with respect
to the execution of judgments are inapplicable to the writ
of possession, it referred to the time within which it can
be issued, and not to whether or not it can be issued
before the expiration of the period assigned for the filing
of the bill of exceptions.
As to whether or not the word "decree" used in the legal
provision above quoted, refers to the final decree of
registration, said legal provision does not exactly say so.
The English text of section 38 of Act No. 496 reads as
follows:
SEC. 38. If the court after hearing finds that the
applicant has title as stated in his application and
proper for registration, a decree of confirmation and
registration shall be entered. . . .
And the Spanish text of the same law is as follows:
ART. 38. Si despues de la vista el tribunal estimare
que el titulo del solitante es tal y como lo manifiesta
en la solicitud y que se puede registrar, dictara el

decreto correspondiente que lo legalice y se

procedera a hacer inscription. . . .
It may be deduced from both texts that the word
"decree" refers not only to the registration but also to the
confirmation of the title.
Paragraph 2 of section 10 of Act No. 2347, entitled "An
Act providing for the judicial reorganization of the courts
of First Instance and of the Court of Land Registration,"
provides as follows:
SEC. 10. . .
In the dispatch of registration cases, the rules and
provisions contained in Act Numbered Four Hundred
and ninety-six, the Land Registration Act, as
amended, shall be applied, unless otherwise provided
by this Act, the rules and provisions contained in the
Code of Procedure in civil actions and special
proceedings shall be applied in so far as the same
may be applicable.
If, as has been said, the word "decree," used in section 17
of Act No. 496, as amended by section 3 of Act No. 1680
quoted above, is used in section 38 of said Act No. 496, in
connection with the confirmation as well as registration
of title, and if said section 17 of Act No. 496, as amended,
does not limit the use of the said word "decree" to the
registration, it must be taken in its general sense and
applied, not only to the registration, but also to the
confirmation of title. If this is so, the provisions and rules
contained in the Code of Civil Procedure, especially those

in section 144 of said Code, are applicable to the issuance

of writs of possession.
The only provision which seemed in conflict with this
conclusion is that contained in section 14 of Act No. 496,
as amended by section 4 of Act No. 1108, the pertinent
part of which is as follows:
SEC. 4. Section fourteen of said Act is hereby
repealed and a new section fourteen is hereby
inserted, to read as follows:
SEC. 14. Every order, decision, and decree of the
Court of Land Registration may be reviewed by the
Supreme Court in the same manner as an order,
decision, decree, or judgment of a Court of First
Instance might be reviewed, and for that purpose
sections one hundred and forty-one, one hundred
and forty-two, one hundred and forty-three, four
hundred and ninety-six, four hundred and ninetyseven (except that portion thereof relating to
assessors), four hundred and ninety-nine, five
hundred, five hundred and one, five hundred and
two, five hundred and three, five hundred and four,
five hundred and five, five hundred and six, five
hundred and seven, five hundred and eight, five
hundred and nine, five hundred and eleven, five
hundred and twelve, five hundred and thirteen, five
hundred and fourteen, five hundred and fifteen, five
hundred and sixteen, and five hundred and
seventeen of Act Numbered One hundred and ninety,
entitled "An Act providing a Code of Procedure in civil
actions and special proceedings in the Philippine
Islands," are made applicable to all the proceedings

of the Court of Land Registration and to a review

thereof by the Supreme Court, except as otherwise
provided in this section. . . .
It will be seen that in enumerating in said section, the
sections of the Code of Civil Procedure applicable to the
revision by this court of any order, judgment, or decree of
the Court of Land Registration, section 144 of the Code of
Civil Procedure mentioned above was omitted. Upon
careful examination of the purpose of said section, it will
be noted that the same refers to the revision of the
orders, judgments and decrees of the Court of Land
Registration. For such revision, the provisions of section
141 of the Code of Civil Procedure defining exceptions,
are necessary; of section 142, which establish the manner
in which they are to be presented; of section 143 which
provide for the manner in which bills of exceptions are to
be perfected; of section 496 which gives the procedure to
be followed in the Supreme Court; of section 497 which
gives the questions of law to be reviewed; of section 499,
which provides how a judge who fails to certify bills of
exceptions may be compelled to do so; of section 500
which enumerates the cases wherein bills of exceptions
must be dismissed; of section 501, which prescribes how
incomplete records are to be amended; of section 502 on
the effect of dismissing a bill of exceptions; of section 503
which provides that a judgment is not to be reversed on
technical grounds; of section 504 on the power of the
Supreme Court to designate another judge to hold a new
trial of the case; of section 505 on the procedure to be
followed in the new trial; of section 506 on the remission
of a certified copy of the judgment to the Court of First
Instance; of section 507 on the notification of the

judgment by the clerk of the Court of First Instance; of

section 508 on the remission to the Court of First
Instance of a certified copy of the Supreme Court's
decision; of section 509 relative to the excepting party
who is not entitled to the reversal with respect to another
party; of section 511 referring to extraordinary orders to
be enforced by the lower courts; of section 512 referring
to the printing of the bill of exceptions; of section 513
referring to the procedure in case of default caused by
fraud, accident, or mistake; of section 514 referring to the
procedure relating to wrists of certiorari; of section 515
referring to the procedure relative to mandamus; of
section 516 referring to procedure in prohibition
proceedings; of section 517 referring to preliminary
injunctions in proceedings relating to certiorari,
mandamus and prohibition.
It will be seen that all these sections of the Code of Civil
Procedure refer strictly to the requisites and necessary
procedure for the revision through an appeal as well as
through certiorari, mandamus and prohibition of the
orders, judgments and decrees of the Court of Land
Registration.
Moreover, in registration proceedings, whether ordinary
or cadastral, the only question involved is the claimant's
or applicant's title, the confirmation and registration of
which are sought, and the review of a decree rendered to
that effect has no other object than to see if said judicial
order is in accordance with the facts proven and the law.
The power conferred upon the court by section 144 of the
Code of Civil Procedure that, for special reasons
appearing in the bill of exceptions, and before the

expiration of the term for the filling thereof, it may order

that the execution of the judgment be not suspended, is
not strictly a requisite or rule of necessary procedure for
the review of an order, judgment or decree of a Court of
Land Registration; hence it was not included in the
enumeration of the sections of the Code of Civil
Procedure applicable to the review of the orders,
judgments and decrees of said court, contained in section
14 of Act No. 496, as amended by Act No. 1108.
In the case of Soriano vs. Aquino (31 Phil., 176, 180), this
court held section 144 of the Code of Civil Procedure
applicable to land registration cases in solving the
question raised by the appellant relative to the
requirement of the bond for the suspension of the
issuance of a writ of possession before the expiration of
the period for the filing of the bill of exceptions, in the
following terms:
Notwithstanding the provision that the filing of a bill
of exceptions shall stay execution of the judgment
until the final determination of the action, it is also
within the discretion of the court, according to
section 144 of the Code of Civil Procedure to require
"as a condition of a stay of execution that a bond
shall be given reasonably sufficient to secure the
performance of the judgment appealed from in case
it be affirmed in part or wholly." The trial court has
not, therefore, incurred the fifth error specified in
appellant's brief, with reference to acquiring the
filing of the bond mentioned in the order of the court
of August 11, 1913.

As to the contention that the exercise of the right to

obtain the confirmation and registration of a title is not
an "action" as this word is defined in section 1 of the
Code of Civil Procedure and as used in section 144 of the
same Code, which makes this section inapplicable to
ordinary registration or cadastral proceedings, it suffices
to cite this court's decision in the case of Lopez Castelo
vs. Director of Lands (48 Phil., 589), the first paragraph of
the syllabus of which reads as follows:
LAND REGISTRATION; ACTION "IN REM";
CONCLUSIVENESS OF DECREE. A land registration
proceedings is in the nature of a suit in rem; the
decree entered therein operates directly on the land
and, in the absence of fraud, is "conclusive upon and
against all persons" (sec. 1, Act No. 496) though they
may not have received actual notice of the
proceedings.
xxx

xxx

xxx

It is also contended that section 144 of the Code of Civil

Procedure, above cited, refers to the execution of a
judgment and not of a decree, and that a decree is not a
judgment.
In answer to this it is sufficient to cite what this court
said in the case of Government of the Philippine Islands
vs. Abural (39 Phil., 996, 1001), which is as follows:
xxx

xxx

xxx

After trial in a cadastral case, three actions are taken.

The first adjudicates ownership in favor of one of the
claimants. This constitutes the decision the

judgment the decree of the court, and speaks in a

judicial manner. . . .
Moreover, public order and the interests of the parties
demand that once a judgment of confirmation of title has
been rendered, the successful party's interest be
protected from any damage which the defeated party
may cause him by remaining in the possession to which
the successful party is entitled by virtue of his title and
the court's decree confirming, it, unless said defeated
party secures the successful party from said damage.
For the foregoing reasons, we are of the option, and so
hold, that section 144 of the Code of Civil Procedure is
applicable to the execution of decrees of confirmation of
title through the issuance, for special reasons which must
appear in the bill of exceptions, of a writ of possession
before the expiration of the period for the filing of said
bill.
By virtue whereof, the remedy sought is denied and the
writ of preliminary injunction issued is hereby dissolved,
without express pronouncement as to costs. So ordered.

Avancea, C.J., Johnson, Malcolm, Villamor, Ostrand and

Romualdez, JJ., concur.

SECOND DIVISION
[G.R. No. L-9669. January 31, 1956.]
NICANOR G. SALAYSAY, Acting Municipal Mayor of San
Juan del Monte, Rizal, Petitioner, vs. HONORABLE FRED
RUIZ CASTRO, Executive Secretary, Office of the

President of the Philippines, HONORABLE WENCESLAO

PASCUAL, Provincial Governor of Rizal, and DOCTOR
BRAULIO STO. DOMINGO, Respondents.
DECISION
MONTEMAYOR, J.:
The facts in this case are not disputed. Briefly stated, they
are as follows. Engracio E. Santos is the duly elected
Municipal Mayor of San Juan del Monte, Rizal, and
the Petitioner Nicanor G. Salaysay is the duly elected
Vice-Mayor. In the month of September, 1955 and for
some time prior thereto, Santos was under suspension
from his office due to administrative charges filed against
him and so Petitioner Salaysay acted as Mayor under
section 2195 of the Revised Administrative Code
providing that in case of temporary disability of the Mayor
such as absence, etc., his duties shall be discharged by
the Vice-Mayor. On September 8, 1955, while acting as
Mayor, Salaysay filed his certificate of candidacy for the
same office of Mayor.
Interpreting said action of Salaysay in running for the
office of Mayor as an automatic resignation from his
office of Vice-Mayor under the provisions of section 27 of
the Revised Election Code, as a consequence of which he
no longer had authority to continue acting as Mayor, the
Office of the President of the Philippines on September
12, 1955 designated Braulio Sto. Domingo acting
Municipal Vice-Mayor of San Juan del Monte, Rizal. On the
same date Salaysay was advised byRespondent Provincial
Governor Wenceslao Pascual of Rizal that in view of his
(Salaysays) automatic cessation as Vice-Mayor due to his
having filed his certificate of candidacy for the office of

Mayor, and in view of the appointment of Sto. Domingo,

as acting Vice-Mayor by the President of the Philippines,
and because he Pascual) had directed Sto. Domingo to
assume the office of Mayor during the suspension of
Mayor Santos, he (Salaysay) should turn over the office of
Mayor to Sto. Domingo. On September 13, 1955, Salaysay
was also advised by Executive Secretary Fred Ruiz Castro
to turn over the office of Mayor to Sto. Domingo
immediately, otherwise he might be prosecuted for
violation of Article 237 of the Revised Penal Code for
prolonging performance of duties.
Salaysay refused to turn over the office of Mayor to Sto.
Domingo and brought this action of Prohibition with
preliminary injunction against Executive Secretary Castro,
Governor Pascual and Sto. Domingo, to declare invalid,
illegal and unauthorized the designation of Sto. Domingo
as acting Vice-Mayor of San Juan del Monte as well as his
designation by Governor Pascual to assume the office of
Mayor during the suspension of Mayor Santos; chan
roblesvirtualawlibraryto order Respondents to desist and
refrain from molesting, interfering or in any way
preventing Petitioner from performing his duties as
acting Municipal Mayor and prohibiting Sto. Domingo
from performing or attempting to perform any of those
powers and duties belonging to Petitioner. Acting upon a
prayer contained in the petition, we issued a writ of
preliminary injunction.

Petitioner contends that his case does not come under

section 27 of the Election Code for the reason that when
he filed his certificate of candidacy for the office of
Mayor, he was actually holding said office.
The Respondents, however, maintain that the

office Petitioner was actually holding when he filed his

certificate of candidacy for the office of Mayor was that of
Vice-Mayor, the one to which he had been duly
elected; chan roblesvirtualawlibrarythat he was not
actually holding the office of Mayor but merely
discharging the duties thereof and was merely acting as
Mayor during the temporary disability of the regular
incumbent. Elaborating, Respondents claim that a ViceMayor acting as Mayor merely discharges the duties of
the office but does not exercise the powers thereof; chan
roblesvirtualawlibrarythat his tenure is provisional,
lasting only during the temporary disability of the regular
incumbent.Petitioner counters with the argument that a
Vice-Mayor acting as Mayor does not only discharge the
duties of the office of Mayor but also exercises the
powers thereof; chan roblesvirtualawlibraryand that
while acting as Mayor, he actually holds the office of
Mayor for all legal purposes.
It is clear that Petitioners stand is taken from the point
of view of his acting as Mayor and not of his office of
Vice-Mayor, while Respondents position is taken from
the point of view of Petitioneractually holding the office
of Vice-Mayor though incidentally and temporarily
discharging the duties of the office of Mayor.
We have given the case considerable study and thought
because we find no precedents to aid and guide us. The
parties have ably adduced pertinent and extensive
citations and arguments not only at the original hearing
but also at the re-hearing. As to whether a Vice- Mayor
acting as Mayor may be regarded as actually holding the
office of Mayor, there are plausible arguments and good
reasons for either side. We are inclined to agree

with Petitioner that one acting as Mayor not only

discharges the duties of the office but also exercises the
powers of said office, and that in one sense and literally,
he may legitimately be considered as actually holding the
office of Mayor. But there is also force and logic in the
argument of Respondents that inasmuch as a Vice-Mayor
takes over the duties of the Mayor only temporarily and in
an acting capacity, he may not be regarded as actually
holding the office, because the duly elected Mayor
incumbent though actually under temporary disability
such as suspension, illness or absence (section 2195,
Revised Administrative Code) could and should be
considered as retaining his right to the office of Mayor
and actually holding the same; chan
roblesvirtualawlibraryotherwise there would be a
situation where two officials at the same time would be
having a right to the same office and actually holding the
same. In view of the possible uncertainty and doubt as to
whether or not a Vice-Mayor by acting as Mayor can be
regarded as actually holding said office of Mayor, we have
to go back and resort to the legislative proceedings had,
particularly the discussions and interpellations in both
houses of Congress leading to the enactment of section
27 of the Revised Election Code, with a view to
ascertaining the intention of that body. After all, in
interpreting a law, the primary consideration is the
ascertainment of the intent and the purpose of the
legislature promulgating the same.
Statute law is the will of the legislature; chan
roblesvirtualawlibraryand the object of all judicial
interpretation of it is to determine what intention is
conveyed, either expressly or by implication, by the
language used, so far as it is necessary for determining

whether the particular case or state of facts presented to

the interpreter falls within it. (Black, Handbook on the
Construction and Interpretation of the Laws, 2nd ed., p.
11.)
HISTORY OR BACKGROUND OF SECTION 27
REVISED ELECTION CODE
Before the enactment of section 27 of the Revised
Election Code, the law in force covering the point or
question in controversy was section 2, Commonwealth
Act No. 666. Its burden was to allow an elective
provincial, municipal, or city official such as Mayor,
running for the same office to continue in office until the
expiration of his term. The legislative intention as we see
it was to favor re- election of the incumbent by allowing
him to continue in his office and use the prerogatives and
influence thereof in his campaign for re- election and to
avoid a break in or interruption of his incumbency during
his current term and provide for continuity thereof with
the next term of office if re-elected.
But section 2, Commonwealth Act No. 666 had reference
only to provincial and municipal officials duly elected to
their offices and who were occupying the same by reason
of said election at the time that they filed their
certificates of candidacy for the same position. It did not
include officials who hold or occupy elective provincial
and municipal offices not by election but by appointment.
We quote section 2, Commonwealth Act No.
666:chanroblesvirtuallawlibrary
Any elective provincial, municipal or city official running
for an office other than the one for which he has been
lastly elected, shall be considered resigned from his once

from the moment of the filing of his certificate of

candidacy.
However, this was exactly the situation facing the
Legislature in the year 1947 after the late President
Roxas had assumed office as President and before the
elections coming up that year. The last national elections
for provincial and municipal officials were held in 1940,
those elected therein to serve up to December, 1943.
Because of the war and the occupation by the Japanese,
no elections for provincial and municipal officials could be
held in 1943. Those elected in 1940 could not hold-over
beyond 1943 after the expiration of their term of office
because according to the views of the Executive
department as later confirmed by this Court in the case of
Topacio Nueno vs. Angeles, 76 Phil., 12, through
Commonwealth Act No. 357, Congress had intended to
suppress the doctrine or rule of hold- over. So, those
provincial and municipal officials elected in 1940 ceased
in 1943 and their offices became vacant, and this was the
situation when after liberation, President Osmea took
over as Chief Executive. He filled these vacant positions
by appointment. When President Roxas was elected in
1946 and assumed office in 1947 he replaced many of
these Osmea appointees with his own men. Naturally,
his Liberal Party followers wanted to extend to these
appointees the same privilege of office retention thereto
given by section 2, Commonwealth Act No. 666 to local
elective officials. It could not be done because section 2,
Commonwealth Act No. 666 had reference only to officials
who had been elected. So, it was decided by President
Roxas and his party to amend said section 2,
Commonwealth Act No. 666 by substituting the phrase
which he is actually holding, for the phrase for which

he has been lastly elected found in section 2 of

Commonwealth Act No. 666. The amendment is now
found in section 27 of the Revised Election Code which
we quote below:chanroblesvirtuallawlibrary
SEC. 27. Candidate holding office. Any elective
provincial, municipal, or city official running for an office,
other than the one which he is actually holding, shall be
considered resigned from his office from the moment of
the filing of his certificate of candidacy.
The purpose of the Legislature in making the amendment,
in our opinion, was to give the benefit or privilege of
retaining office not only to those who have been elected
thereto but also to those who have been appointed; chan
roblesvirtualawlibrarystated differently, to extend the
privilege and benefit to the regular incumbents having
the right and title to the office either by election or by
appointment. There can be no doubt, in our opinion,
about this intention. We have carefully examined the
proceedings in both Houses of the Legislature. The
minority Nacionalista members of Congress bitterly
attacked this amendment, realizing that it was partisan
legislation intended to favor those officials appointed by
President Roxas; chan roblesvirtualawlibrarybut despite
their opposition the amendment was passed.
LEGISLATIVE INTENT
We repeat that the purpose of the Legislature in enacting
section 27 of the Revised Election Code was to allow an
official to continue occupying an elective provincial,
municipal or city office to which he had been appointed or
elected, while campaigning for his election as long as he
runs for the same office. He may keep said office
continuously without any break, through the elections

and up to the expiration of the term of the office. By

continuing in office, the office holder was allowed and
expected to use the prerogatives, authority and influence
of his office in his campaign for his election or re-election
to the office he was holding. Another intention of the
Legislature as we have hitherto adverted to was to
provide for continuity of his incumbency so that there
would be no interruption or break, which would happen if
he were required to resign because of his filing his
certificate of candidacy. Bearing this intention of the
Legislature in this regard in mind, can it be said that a
Vice-Mayor like the Petitioner herein, merely acting as
Mayor because of the temporary disability of the regular
incumbent, comes under the provision and exception of
section 27 of the Election Code? The answer must
necessarily be in the negative. A Vice Mayor acts as Mayor
only in a temporary, provisional capacity. This tenure is
indefinite, uncertain and precarious. He may act for a few
days, for a week or a month or even longer. But surely
there, ordinarily, is no assurance or expectation that he
could continue acting as Mayor, long, indefinitely,
through the elections and up to the end of the term of the
office because the temporary disability of the regular,
incumbent Mayor may end any time and he may resume
his duties.
VICE-MAYOR ACTING AS MAYOR, OUTSIDE
LEGAL CONTEMPLATION
The case of a Vice-Mayor acting as Mayor could not have
been within the contemplation and the intent of the
Legislature because as we have already stated, that
lawmaking body or at least the majority thereof intended
to give the benefits and the privilege of section 27 to

those officials holding their offices by their own right and

by a valid title either by election or by appointment,
permanently continuously and up to the end of the term
of the office, not to an official neither elected nor
appointed to that office but merely acting provisionally in
said office because of the temporary disability of the
regular incumbent. In drafting and enacting section 27,
how could the Legislature have possibly had in mind a
Vice-Mayor acting as Mayor, and include him in its scope,
and accord him the benefits of retaining the office of
Mayor and utilizing its authority and influence in his
election campaign, when his tenure in the office of Mayor
is so uncertain, indefinite and precarious that there may
be no opportunity or occasion for him to enjoy said
benefits, and how could Congress have contemplated his
continuing in the office in which he is acting, when the
very idea of continuity is necessarily in conflict and
incompatible with the uncertainty, precariousness and
temporary character of his tenure in the office of Mayor?
ACTUALLY HOLDING OFFICE EQUIVALENT
TO INCUMBENT
All these doubts about the meaning and application of the
phrase actually holding office could perhaps have been
avoided had the intention of this Legislature been
phrased differently. It could perhaps have more happily
used the term incumbent to refer to those provincial
and municipal officials who were holding office either by
election or by appointment, and so had a legal title and
right thereto. As a matter of fact, this term incumbent
was actually used by Congressman Laurel in explaining
the idea of the committee that drafted this amendment to
section 2, Commonwealth Act No. 666, of which

committee he was the Chairman. The deliberations of the

lower House as quoted by the very counsel
for Petitioner reads as
follows:chanroblesvirtuallawlibrary
Mr. ROY. What must be the reason, then, Mr. Chairman
of the Committee for deleting the words has been lastly
elected?
Mr. LAUREL. The idea is to cover the present incumbents
of the local offices. (II Congressional Record 1143.)
In this connection, a happier phraseology of another
portion of section 27 could have been used for purposes
of precision. For instance, the first part of said section
reads thus:chanroblesvirtuallawlibrary Any elective
provincial, municipal or city official running for an office,
and yet as we have already said, the Legislature intended
said section to refer to officials who were appointed by
President Roxas to fill vacancies in provincial, municipal
and city elective offices. In other words, those officials
were not really elected or elective officials but they were
officials occupying or holding local elective offices by
appointment. All this goes to show that we should not
and cannot always be bound by the phraseology or literal
meaning of a law or statute but at times may interpret,
nay, even disregard loose or inaccurate wording in order
to arrive at the real meaning and spirit of a statute
intended and breathed into it by the law-making body.
MEANING OF PHRASE RESIGNED FROM HIS OFFICE
Section 27 of Republic Act No. 180 in providing that a
local elective official running for an office other than the
one he is actually holding, is considered resigned from his
office, must necessarily refer to an office which said
official can resign, or from which he could be considered

resigned, even against his will. For instance, an

incumbent Mayor running for the office of Provincial
Governor must be considered as having resigned from his
office of Mayor. He must resign voluntarily or be
compelled to resign. It has to be an office which is
subject to resignation by the one occupying it. Can we say
this of a Vice-Mayor acting as Mayor? Can he or could he
resign from the office of Mayor or could he be made to
resign therefrom No. As long as he holds the office of
Vice-Mayor to which he has a right and legal title, he,
cannot resign or be made to resign from the office of
Mayor because the law itself requires that as Vice- Mayor
he must act as Mayor during the temporary disability of
the regular or incumbent Mayor. If he cannot voluntarily
resign the office of Mayor in which he is acting
temporarily, or could not be made to resign therefrom,
then the provision of section 27 of the Code about
resignation, to him, would be useless, futile and a dead
letter. In interpreting a law, we should always avoid a
construction that would have this result, for it would
violate the fundamental rule that every legislative act
should be interpreted in order to give force and effect to
every provision thereof because the Legislature is not
presumed to have done a useless act.
A statute is a solemn enactment of the state acting
through its legislature and it must be assumed that this
process achieve result. It cannot be presumed that the
legislature would do a futile thing. (Sutherland,
Statutory Construction, Vol. 2, p. 237.)
EXAMPLE
To emphasize and illustrate this inapplicability of section
27 to a Vice-Mayor acting as Mayor, let us consider an

example. A Vice-Mayor while acting as Mayor files his

certificate of candidacy for the office of Vice-Mayor. In
other words, he wants to run for re-election. The
Provincial Governor, especially if belonging to a different
political party wants to keep him out of the office of
Mayor, especially during the electoral campaign, and
instead have his party man, the councilor who obtained
the highest number of votes in the last elections, act as
Mayor (section 2195, Revised Administrative Code). So,
he hastens to the Municipal building and enters the
Mayors office where the Vice-Mayor has installed
himself. Using the same argument of herein Petitioner, he
tells the Vice-Mayor that inasmuch as while acting as
Mayor, he was actually holding said office of Mayor, and
because while thus holding it, he filed his certificate of
candidacy for Vice-Mayor which is a different office, he
must be considered resigned from the office of
Mayor; chan roblesvirtualawlibraryand he even asks him
to leave the Mayors room and office. The Vice-Mayor, a
law abiding citizen acquiesces and obeys, he reluctantly,
leaves and abandons the office of the Mayor and repairs
to his own room as Vice-Mayor. But he has a happy
inspiration and remembers the law (section 2195,
Revised Administrative Code); chan
roblesvirtualawlibraryhe rushes back to the office of the
Mayor and tells the Governor and the authorities that he
is still the Vice-Mayor because when he filed his
certificate of candidacy for Vice-Mayor, he was also
actually holding said office, and so did not lose it; chan
roblesvirtualawlibrarythat as such Vice-Mayor, he can act
and must act as Mayor during the temporary disability of
the incumbent, because he cannot resign and no one can
make him resign from the office of Mayor; chan

roblesvirtualawlibraryand he defies the Governor to oust

him from the office and room of the Mayor. The Governor
is helpless for the Vice-Mayor is right, that is, if we apply
section 27 of the Election Code to him. This possible,
undesirable and anomalous situation is another reason
why section 27 may not be applied to the case of a ViceMayor acting as Mayor.
In the above given example, the Governor might contend
that when the Vice-Mayor filed his certificate of
candidacy for Mayor, he was actually holding only the
office of Mayor and not that of Vice-Mayor and so he lost
his office of Vice-Mayor. But that contention of the
Governor is untenable. Even counsel for
herein Petitioner in his memorandum admits that a ViceMayor while acting as Mayor, also actually holds his office
of Vice-Mayor. And it has to be that way. A Vice-Mayor
acting as Mayor does not cease to be Vice-Mayor. In fact,
that is his real, principal and basic office or function.
Acting as Mayor is only an incident, an accessory. Let him
cease holding the office of Vice-Mayor even for an instant,
and he automatically also ceases acting as Mayor.
Furthermore, a Vice-Mayor has administrative duties to
perform. He is an ex-officio member of the Municipal
Council and he is in charge of the barrio or district where
the town offices are located (section 2204, Revised
Administrative Code). While acting as Mayor he may not
say that he ceases to hold the office of Vice- Mayor and so
cannot look after the needs of the residents of his district
and present them to the town council.
ANOTHER EXAMPLE
The regular incumbent Mayor files his certificate of
candidacy for the same office of Mayor. Then he goes on

leave of absence or falls sick and the Vice-Mayor acts in

his place, and while thus acting he also files his certificate
of candidacy for the same office of Mayor. Then the ViceMayor also goes on leave or falls sick or is suspended, and
because the regular Mayor is still unable to return to
office, under section 2195 of the Revised Administrative
Code, the councilor who at the last general elections
received the highest number of votes, acts as Mayor and
while thus acting he also files his certificate of candidacy
for the office of Mayor. The Vice-Mayor also campaigns
for the same post of Mayor claiming like the
herein Petitioner that he did not lose his office of ViceMayor because he filed his certificate of candidacy while
acting as Mayor and thus was actually holding the office
of Mayor. Using the same argument, the councilor who
had previously acted as Mayor also campaigns for his
election to the same post of Mayor while keeping his
position as councilor. Thus we would have this singular
situation of three municipal officials occupying three
separate and distinct offices, running for the same office
of Mayor, yet keeping their different respective offices,
and strangely enough two of those offices (Vice- Mayor
and Councilor) are different from the office of Mayor they
are running for. Could that situation have been
contemplated by the Legislature in enacting section 27 of
the Revised Election Code? We do not think so, and yet
that would happen if the contention of
the Petitioner about the meaning of actually holding
office is to prevail.
CONGRESS CONTEMPLATED ONLY ONE OFFICE
ACTUALLY HELD

Another argument against the contention that a ViceMayor acting as Mayor actually holds the office of Mayor,
occurs to us. For purposes of ready reference we again
quote section 27 in its
entirety:chanroblesvirtuallawlibrary
SEC. 27. Candidate holdings office. Any elective
provincial, municipal, or city official running for an office,
other than the one which he is actually holding, shall be
considered resigned from his office from the moment of
the filing of his certificate of candidacy.
It will readily be noticed from the quoted section,
especially the words underlined by us that the Legislature
contemplated only one office, not two or more. To us, this
is significant as well as important. As we have previously
stated, there is no question that a Vice-Mayor acting as
Mayor still holds the office of ViceMayor. Petitioner himself admits this in his written
argument and even contends that there is nothing wrong
or illegal in an official holding two offices at the same
time provided there is no incompatibility between them.
If the Legislature believed that a Vice-Mayor acting as
Mayor actually holds the office of Mayor and that he
would thus be actually holding two offices, then it would
have provided in section 27 for offices in the plural
instead of employing the words office, his office, and the
one which it used in the singular. Besides this clear
expression of legislative intent for only one office being
actually held and to be resigned from, to say that the
Vice-Mayor when acting as Mayor is actually holding two
offices would create confusion and uncertainty because
we would not know which office he would be considered
resigned from.

TWO OFFICIALS ACTUALLY HOLDING THE SAME

ELECTIVE OFFICE
We have already said that a Mayor under temporary
disability continues to be Mayor (Gamalinda vs. Yap * No.
L-6121, May 30, 1953) and actually holds the office
despite his temporary disability to discharge the duties of
the office; chan roblesvirtualawlibraryhe receives full
salary corresponding to his office, which payment may
not be legal if he were not actually holding the office,
while the Vice-Mayor acting as Mayor does not receive
said salary but is paid only a sum equivalent to it (section
2187, Revised Administrative Code). Now, if a Mayor
under temporary disability actually holds the office of
Mayor and the Vice- Mayor acting as Mayor, according to
his claim is also actually holding the office of Mayor, then
we would have the anomalous and embarrassing
situation of two officials actually holding the very same
local elective office. Considered from this view point, and
to avoid the anomaly, it is to us clear that the Vice-Mayor
should not be regarded as holding the office of Mayor but
merely acting for the regular incumbent, a duty or right
as an incident to his office of Vice-Mayor and not as an
independent right or absolute title to the office by reason
of election or appointment.
ACTING MAYOR AND ACTING AS MAYOR,
DISTINGUISHED

Petitioner claims that he is the acting

Mayor. Respondents insist that Petitioner is merely acting
as Mayor. It is pertinent and profitable, at least in the
present case, to make a distinction between an Acting
Mayor and a Vice-Mayor acting as Mayor. When a vacancy
occurs in the office of Mayor, the Provincial Governor

under section 21(a) or the President under section 21(b),

(d) and (e) of the Election Code appoints or designates an
Acting Mayor. In that case the person designated or
appointed becomes the Mayor and actually holds the
office for the unexpired term of the office (section 21 [f])
because when he was appointed there was no regular
incumbent to the office. However, when a Vice-Mayor
acts as Mayor, there is no vacancy in the post of Mayor.
There is a regular incumbent Mayor only that the latter is
under temporary disability. So, strictly and correctly
speaking, the Vice-Mayor may not be considered Acting
Mayor. He is only acting as Mayor temporarily,
provisionally and during the temporary disability of the
regular incumbent. He is not the incumbent. In baseball
parlance, Petitioner is only a pinch hitter, pinch
hitting for, say, the pitcher in an emergency. As a mere
pinch hitter his name does not grace the regular line up,
he is not the pitcher, does not hold the position of pitcher,
neither does he receive all the benefits and privileges of
the regular pitcher.
Ordinarily, this apparently fine and subtle distinction
would seem unimportant and unnecessary. When a ViceMayor acts as Mayor we usually call him Mayor or Acting
Mayor and deal with him as though he were the regular
incumbent; chan roblesvirtualawlibrarybut there are
times and occasions like the present when it is necessary
to make these distinction and use correct and precise
language in order to determine whether or not under
section 27 of the Election Code a Vice-Mayor acting as
Mayor like the Petitioner herein comes within the phrase
actually holding office used in that section.
EXCEPTION TO BE CONSTRUED STRICTLY

Section 26 of the Revised Election Code provides that

every person holding an appointive office shall ipso facto
cease in his office on the date he files his certificate of
candidacy. Then we have section 27 of the same Code as
well as section 2 of Commonwealth Act No. 666 which it
amended, both providing that local elective officials
running for office shall be considered resigned from their
posts, except when they run for the same office they are
occupying or holding. It is evident that the general rule is
that all Government officials running for office must
resign. The authority or privilege to keep ones office
when running for the same office is the exception. It is a
settled rule of statutory construction that an exception or
a proviso must be strictly construed specially when
considered in an attempt to ascertain the legislative
intent.
Exceptions, as a general rule, should be strictly, but
reasonably construed; chan roblesvirtualawlibrarythey
extend only so far as their language fairly warrants, and
all doubts should be resolved in favor of the general
provision rather than the exception. Where a general rule
is established by statute with exceptions, the court will
not curtail the former nor add to the latter by implication,
and it is a general rule that an express exception excludes
all others, although it is always proper in determining the
applicability of this rule, to inquire whether, in the
particular case, it accords with reason and
justice cralaw . (Francisco, Statutory Construction, p.
304, citing 69 C.J., section 643, pp. 1092-1093; chan
roblesvirtualawlibraryItalics supplied.)
As in all other cases, a proviso should be interpreted
consistently with the legislative intent. Where the proviso

itself must be considered. In an attempt to determine the

intent of the Legislature, it should be strictly construed.
This is true because the legislative purpose set forth in
the general enactment expresses the legislative policy
and only those subjects expressly exempted by the
proviso should be freed from the operation of the statute.
(Sutherland, Statutory Construction, 3rd ed., Vol. 2, pp.
471-472.)
Applying this rule, inasmuch as Petitioner herein claimed
the right to retain his office under the exception above
referred to, said claim must have to be judged strictly,
whether or not his mere acting in the office of Mayor may
be legally interpreted as actually holding the same so as
to come within the exception. As we have already
observed, literally and generally speaking, since he is
discharging the duties and exercising the powers of the
office of Mayor he might be regarded as actually holding
the office; chan roblesvirtualawlibrarybut strictly
speaking and considering the purpose and intention of
the Legislature behind section 27 of the Revised Election
Code, he may not and cannot legitimately be considered
as actually holding the office of Mayor.
RETENTION OF OFFICE
We have, heretofore discussed the case as regards the
resignation of an office holder from his office by reason of
his running for an office different from it; chan
roblesvirtualawlibraryand our conclusion is that it must
be an office that he can or may resign or be considered
resigned from; chan roblesvirtualawlibraryand that the
office of Mayor is not such an office from the stand point
of a Vice-Mayor. Let us now consider the case from the
point of view of retaining his office because he is running

for the same office, namely retention of his office. As

we have already said, the Legislature intended to allow
an office holder and incumbent to retain his office
provided that he runs for the same. In other words, he is
supposed to retain the office before and throughout the
elections and up to the expiration of the term of the
office, without interruption. Can a Vice-Mayor acting as
Mayor be allowed or expected to retain the office of
Mayor ? The incumbent Mayor running for the same office
can and has a right to keep and retain said office up to
the end of his term. But a Vice-Mayor merely acting as
Mayor and running for said office of Mayor, may not and
cannot be expected to keep the office up to the end of the
term, even assuming that by acting as Mayor he is
actually holding the office of Mayor, for the simple reason
that his holding of the same is temporary, provisional and
precarious and may end any time when the incumbent
Mayor returns to duty. Naturally, his temporary holding of
the office of Mayor cannot be the retention or right to
keep the office intended by the Legislature in section 27
of Republic Act No. 180. So that, neither from the point of
view of resignation from the office of Mayor nor the
standpoint of retention of said office, may a Vice-Mayor
acting as Mayor, like herein Petitioner, come within the
provisions and meaning of section 27 of the Election
Code, particularly the exception in it.
SUPPOSED DISCRIMINATION AGAINST VICE-MAYOR
ACTING AS MAYOR
During the hearing and oral argument of this case, the
suggestion was made, which suggestion was also used as
an argument during the deliberations among the
members of this Tribunal, that to include in section 27

particularly the phrase actually holding office one who

has been appointed as acting official such as Acting
Mayor and at the same time exclude a Vice-Mayor who
acts as Mayor, would be discriminating against an official
(Vice-Mayor) who by statutory provision and sanction is
required to act as Mayor, and give more importance to
one merely appointed to said office. We fail to see any
discrimination for the reason that an appointee to the
office of Mayor fills a vacancy and serves until the end of
the term of the office, whereas a Vice-Mayor acting as
Mayor fills no vacancy because there is none and he
serves only temporarily until the disability of the
incumbent, such as suspension, absence, illness, etc. is
removed. Now, if a vacancy is created in the office of
Mayor by removal, resignation, death or cessation of the
incumbent, then the Vice-Mayor automatically fills the
vacancy, becomes Mayor (section 2195, Revised
Administrative Code), and serves until the end of the term
(section 21[f], Revised Election Code). That is the time
when he may invoke section 27 because he would then be
actually holding the office of Mayor.
CONCLUSION
In conclusion, we believe and hold that a Vice-Mayor
acting as Mayor does not actually hold the office of
Mayor within the meaning of section 27 of Republic Act
No. 180; chan roblesvirtualawlibrarythat a Vice-Mayor
who files his certificate of candidacy for the office of
Mayor, even while acting as Mayor, is considered resigned
from the office of Vice-Mayor for the reason that is the
only office that he actually holds within the
contemplation of section 27 of the Revised Election Code
and the office he is running for (Mayor) is naturally other

than the one he is actually holding (Vice-Mayor); chan

roblesvirtualawlibraryand that having ceased to be a
Vice- Mayor, he automatically lost all right to act as
Mayor.
A word of explanation. This decision should have been
promulgated long before now. In truth, this Tribunal was
anxious and determined to decide this case before the
last November elections, at least before the newly elected
local officials assumed office. However, after long, careful
deliberations the court was deadlocked, the vote standing
five to five. The rehearing ordered by us as decreed by
law failed to break the deadlock. It was only when the
new addition to the membership of the Tribunal, Mr.
Justice Endencia studied the case, weighed the
arguments and considered the authorities on either side,
that the tie vote could be broken. He voted for and signed
the present opinion which now becomes the majority
opinion.
The question involved in the present case may in a way
be regarded as moot. Just the same, we doomed it
advisable to proceed with its final determination, even
elaborate on the discussion of its different aspects, by
reason of its importance and for the information and
guidance of local elective officials, and perchance so that
the Legislature, apprised of the judicial interpretation and
meaning given to section 27 of the Revised Election Code,
may be in a better position to decide whether to continue
and leave it as it stands on the statute books, or amend or
change it before the next general elections.
In view of the foregoing, the petition for prohibition is
denied, with costs. The writ of preliminary injunction
heretofore issued is hereby dissolved.

Padilla, Jugo, Labrador and Endencia, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION

G.R. Nos. 48886-88

July 21, 1993

COMMISSIONER OF CUSTOMS, petitioner,

vs.
COURT OF TAX APPEALS and LITONJUA SHIPPING
COMPANY represented by Granexport Corporation as subagent, respondent.

The Solicitor General for petitioner.

Romulo, Mabanta, Buenaventura, Sayoc & De los Angeles

Law Offices for private respondent.

MELO, J.:

This refers to a petition for review of the decision dated

July 28, 1978 of the Court of Tax Appeals in C. T. A. Cases
No. 2785, 2831 and 2832 which was promulgated prior to
the issuance on February 27, 1991, of Circular No.
1-91 to the effect that appeals from a final order or
decision of the Court of Tax Appeals shall be to the Court
of Appeals.

The undisputed facts of the case as established by the

evidence and as found by respondent Court of Tax
Appeals, are as follows:

The berthing facilities of Iligan Bay Express Corporation

at Kiwalan were constructed and improved and are
operated and maintained solely by and at the expense of
Iligan Express Corporation, a private corporation.

The MS "Chozan Maru", MS "Samuel S", MS "Ero", MS

"Messinia", MS "Pavel Rybin", MS "Caledonia", and MS
"Leonidas" are vessels engaged in foreign trade and
represented in the Philippines by private respondent
Litonjua Shipping Company Granexport Corporation as its
sub-agent.

On various date, berthing facilities of the Iligan Bay

Express Corporation at Kiwalan, Iligan City were used by
the above vessels and were assessed berthing fees by the
Collector of Customs which were paid by private
respondent under protest, to wit:

a) June 27, 1973, MS "Chozan Maru" P2,551.00 paid

on April 17, 1973;

b) April 27, 1973, MS "Samuel S" P8,000.00 paid on

May 9, 1973;

c) May 27, 1973, MS "Ero" P5,000.00 paid on June 4,

1973;

d) June 2, 1973 MS "Messinia" P5,000.00 paid on

June 11, 1973;

e) March 22-26, 1975, MS "Pavel Rybin" P4,000.00

paid on April 3, 1975;

f) April 26-May 3, 1975 MS "Caledonia" P7,000.00 on

May 7, 1975; and

g) May 25-June 3, 1975, MS "Caledonia" P9,000.00

paid on June 7, 1975.

Private respondent filed cases before the Bureau of

Customs for refund of the berthing fees paid under
protest. The Collector of Customs of the City of Iligan
denied the protest, prompting private respondent to
appeal to the Commissioner of Customs who, however,
affirmed the decision of the Collector of Customs.

Private respondent then resorted to the Court of Tax

Appeals. Consolidating the protests, the tax court,
thereafter rendered a decision on July 28, 1978, the
dispositive portion of which reads as follows:

WHEREFORE, the decisions appealed from are hereby

reversed and respondent Commissioner of Customs is
ordered to refund to petitioner the amount of P40,551.00.
No costs. (p., 51, Rollo)

Hence, the present recourse by the Commissioner of

Customs.

The only issue involved in this petition for review is:

Whether a vessel engaged in foreign trade, which berths
at a privately owned wharf or pier, is liable to the
payment of the berthing charge under Section 2901 of
the Tariff and Customs Code, which, as amended by
Presidential Decree No. 34, reads:

Sec. 2901.
Definition. Berthing charge is the amount
assessed against a vessel for mooring or berthing at a
pier, wharf, bulk-head-wharf, river or channel marginal
wharf at any national port in the Philippines; or for
mooring or making fast to a vessel so berthed, or for
coming or mooring within any slip, channel, basin, river
or canal under the jurisdiction of any national port of the
Philippines: Provided, however, That in the last instance,
the charge shall be fifty (50%) per cent of rates provided
for in cases of piers without cargo shed in the succeeding

sections. The owner, agent, operator or master of the

vessel is liable for this charge.

Petitioner Commissioner of Customs contends that the

government has the authority to impose and collect
berthing fees whether a vessel berths at a private pier or
at a national port. On the other hand, private respondent
argues that the right of the government to impose
berthing fees is limited to national ports only.

The governing law classifying ports into national ports

and municipal ports is Executive Order No. 72, Series of
1936 (O.G. Vol. 35, No. 6, pp. 65-66). A perusal of said
executive order discloses the absence of the port of
Kiwalan in the list of national ports mentioned therein.

Furthermore, Paragraph 1 of Executive Order No. 72

expressly provides that "the improvement and
maintenance of national ports shall be financed by the
Commonwealth Government, and their administration
and operation shall be under the direct supervision and
control of the Insular Collector of Customs." It is
undisputed that the port of Kiwalan was constructed and
improved and is operated and maintained solely by and at
the expense of the Iligan Express Corporation, and not by

the National Government of the Republic or any of its

agencies or instrumentalities.

Petitioner insists that Kiwalan is a national port since it is

within the jurisdiction of the collection district and
territorial limits of the national port of Iligan City. The
claim is put forward that "Kiwalan simply cannot claim to
be an independent port within a national port without
infringing on the territorial jurisdiction of the Port of
Iligan", citing the support thereof Customs Administrative
Order No. 1-76 dated February 23, 1976. However, a
reading of said administrative order shows that it was
issued merely for administrative purposes redefining the
jurisdictional limits of each Customs Collection District
"based on the approved staffing pattern." It has nothing
to do with the collection of berthing fees. On this point
we quote with approval the following conclusions of
respondent Court of Tax Appeals:

. . . we see no significance therefore in the stand of

respondent, as averred as affirmative and special
defenses of his answers, that it is not necessary to list
Kiwalan as a national port being already an integral part
of the national port of the city of Iligan, within its
territorial limits, jurisdiction or collection district. Such an
assertion, besides being violative of the legal basis for the
classification of ports into national or municipal under

Executive Order No. 72, series of 1936, as implemented

by subsequent Republic Acts and Executive Orders, would
make all ports in the Philippines national ports. A port is
not classified as a national port just because it is located
within the territorial limits or boundaries of a city or
municipality where a national port is situated, much less
within the jurisdiction or collection district of a national
port; otherwise, all ports in the Philippines would be
classified as national ports without any municipal ports.

xxx xxx xxx

. . . Customs Administrative Order No. 1-72 dated

September 21, 1971, which is entitled as defining the
jurisdictional limits of customs collection districts, divided
the entire Philippines into thirty-four (34) collection
districts. It bears emphasis that no point or locality in the
Philippines is not covered by a collection district, or does
not fall within the territorial jurisdiction or limits of a
collection district, with a principal port of entry which is
always national port properly, classified and listed as
such by law or executive order. (pp. 47-48, Rollo)

The Bureau of Customs itself in its Customs Memorandum

Circular No. 33-73 dated March 29, 1973, does not accord
the status of national port to the port of Kiwalan, nor

does the list of national ports appended thereto include

the port of Kiwalan. Moreover, said memorandum circular
indicates the specific law (Public Act, Commonwealth Act,
Republic Act or Executive Order) creating a particular
national port. Petitioner has not cited or brought to our
attention, and we have found none, any law creating
Kiwalan Port as a national port or converting it to one.

It is a settled rule of statutory construction that the

express mention of one person, thing, act, or
consequence excludes all others. This rule is expressed in
the familiar maxim expressio unius est exclusio alterius.
Where a statute, by its terms, is expressly limited to
certain matters, it may not, by interpretation or
construction, be extended to others. The rule proceeds
from the premise that the legislature would not have
made specified enumerations in a statute had the
intention been not to restrict its meaning and to confine
its terms to those expressly mentioned (Agpalo, Statutory
Construction, 2nd Ed., 1990, pp. 160-161, and the cases
therein cited). The port of Kiwalan not being included in
the list of national ports appended to Customs
Memorandum Circular No. 33-73 nor in Executive Order
No. 72, it follows inevitably as a matter of law and legal
principle that this Court may not properly consider said
port as a national port. To do otherwise would be to
legislate on our part and to arrogate into ourselves
powers not conferred on us by the Constitution.

Even the Bureau of Customs in its Customs Memorandum

Circular No. 47-73 held

It appearing that Banago Wharf in Bacolod City is not one

of those listed as a national port, the said part should be
considered a municipal, pursuant to the provisions of
Executive Order No. 72 series of 1936. Berthing charges
therefore may not be collected from vessels docking
thereat. (p. 3, Customs Memorandum Circular No. 47-73)

Plainly, therefore, the port of Kiwalan is not a national

port. However, petitioner maintains that regardless of
whether or not the port of Kiwalan is a national port,
berthing charges may still be collected by the Bureau of
Customs from vessels berthing at said port, citing the
case of Luzon Stevedoring Corporation vs. Court of Tax
Appeals and Commissioner of Customs (18 SCRA 436
[1966]), where it was held:

Adverting to the terms of the law, it is quite apparent that

the government's right to collect berthing charges is not
planted upon the condition that the pier be publicly
owned. The statute employs the word pier without
more. Nothing there said speaks of private or public pier.
Where the law does not exact the nature of ownership as

a condition, that condition should not be read into the

law. We are not to indulge in statutory construction.
Because the law is clear. Our plain duty is to apply the
law as it is written. So applying, we rule that, berthing or
mooring charges here were properly collected. (at pp.
438-439.)

The above ruling, however, is no longer effective and can

not apply in the case at bar for the same was decided
before the Tariff and Customs Code was amended by
Presidential Decree No. 34 which took effect thirty days
from October 27, 1972, the date of promulgation.

Section 2901 of the Tariff and Customs Code prior to its

amendment and said section as amended by Presidential
Decree No. 34 are hereunder reproduced with the
amendments duly highlighted:

Sec. 2901.
Definition Berthing charge is the amount
assessed against a vessel for mooring or berthing at a
pier, wharf, bulkhead-wharf, river or channel marginal
wharf at any port in the Philippines; or for mooring or
making fast to a vessel so berthed; or for coming or
mooring within any slip, channel, basin, river or canal
under the jurisdiction of any port of the Philippines (old
TCC)

Sec. 2901.
Definition Berthing charge is the amount
assessed a vessel for mooring or berthing at a pier, wharf,
bulkhead-wharf, river or, channel marginal wharf AT ANY
NATIONAL PORT IN THE PHILIPPINES; for mooring or
making fast to a vessel so berthed; or for coming or
mooring within any slip, channel, basin, river, or canal
under the jurisdiction of ANY NATIONAL port of the
Philippines; Provided, HOWEVER, THAT IN THE LAST
INSTANCE, THE CHARGE SHALL BE FIFTY (50%) PER
CENT OF RATES PROVIDED FOR IN CASES OF PIERS
WITHOUT CARGO SHED IN THE SUCCEEDING SECTIONS.

It will thus be seen that the word "national" before the

word "port" is inserted in the amendment. The change in
phraseology by amendment of a provision of law
indicates a legislative intent to change the meaning of the
provision from that it originally had (Agpalo, supra, p.
76). The insertion of the word "national" before the word
"port" is a clear indication of the legislative intent to
change the meaning of Section 2901 from what it
originally meant, and not a mere surplusage as contended
by petitioner, in the sense that the change "merely
affirms what customs authorities had been observing
long before the law was amended" (p. 18, Petition). It is
the duty of this Court to give meaning to the amendment.
It is, therefore, our considered opinion that under Section

2901 of the Tariff and Customs Code, as amended by

Presidential Decree No. 34, only vessels berthing at
national ports are liable for berthing fees. It is to be
stressed that there are differences between national
ports and municipal ports, namely: (1) the maintenance
of municipal ports is borne by the municipality, whereas
that of the national ports is shouldered by the national
government;
(2) municipal ports are created by executive order, while
national ports are usually created by legislation; (3)
berthing fees are not collected by the government from
vessels berthing at municipal ports, while such berthing
fees are collected by the government from vessels
moored a national ports. The berthing fees imposed upon
vessels berthing at national ports are applied by the
national government for the maintenance and repair of
said ports. The national government does not maintain
municipal ports which are solely maintained by the
municipalities or private entities which constructed them,
as in the case at bar. Thus, no berthing charges may be
collected from vessels moored at municipal ports nor may
berthing charges be imposed by a municipal council
(Tejam's Commentaries on the Revised Tariff and
Customs Code, p. 2486, citing Circular Letter No. 2981
dated September 30, 1958 quoting Op. No. 122, s. of
1958 and Op. No. 373, s. of 1940, Sec. of Justice).

The subject vessels, not having berthed at a national port

but at the Port of Kiwalan, which was constructed,
operated, and continues to be maintained by private
respondent Iligan Express Corporation, are not subject to
berthing charges, and petitioner should refund the
berthing fees paid private respondent.
WHEREFORE, the petition is hereby DENIED and the
decision of the Court of Tax Appeals AFFIRMED.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 106719 September 21, 1993

DRA. BRIGIDA S. BUENASEDA, Lt. Col. ISABELO BANEZ,

JR., ENGR. CONRADO REY MATIAS, Ms. CORA S. SOLIS
and Ms. ENYA N. LOPEZ, petitioners,

vs.
SECRETARY JUAN FLAVIER, Ombudsman CONRADO M.
VASQUEZ, and NCMH NURSES ASSOCIATION, represented
by RAOULITO GAYUTIN, respondents.

Renato J. Dilag and Benjamin C. Santos for petitioners.

Danilo C. Cunanan for respondent Ombudsman.

Crispin T. Reyes and Florencio T. Domingo for private

respondent.

QUIASON, J.:

This is a Petition for Certiorari, Prohibition and

Mandamus, with Prayer for Preliminary Injunction or
Temporary Restraining Order, under Rule 65 of the
Revised Rules of Court.

Principally, the petition seeks to nullify the Order of the

Ombudsman dated January 7, 1992, directing the
preventive suspension of petitioners,
Dr. Brigida S. Buenaseda, Chief of Hospital III; Isabelo C.
Banez, Jr., Administrative Officer III; Conrado Rey
Matias, Technical Assistant to the Chief of Hospital; Cora
C. Solis, Accountant III; and Enya N. Lopez, Supply
Officer III, all of the National Center for Mental Health.
The petition also asks for an order directing the
Ombudsman to disqualify Director Raul Arnaw and
Investigator Amy de Villa-Rosero, of the Office of the
Ombudsman, from participation in the preliminary
investigation of the charges against petitioner (Rollo, pp.
2-17; Annexes to Petition, Rollo, pp. 19-21).

The questioned order was issued in connection with the

administrative complaint filed with the Ombudsman
(OBM-ADM-0-91-0151) by the private respondents
against the petitioners for violation of the Anti-Graft and
Corrupt Practices Act.

According to the petition, the said order was issued upon

the recommendation of Director Raul Arnaw and
Investigator Amy de Villa-Rosero, without affording
petitioners the opportunity to controvert the charges filed
against them. Petitioners had sought to disqualify

Director Arnaw and Investigator Villa-Rosero for manifest

partiality and bias (Rollo, pp. 4-15).

On September 10, 1992, this Court required respondents'

Comment on the petition.

On September 14 and September 22, 1992, petitioners

filed a "Supplemental Petition (Rollo, pp. 124-130);
Annexes to Supplemental Petition; Rollo pp. 140-163)
and an "Urgent Supplemental Manifestation" (Rollo,
pp. 164-172; Annexes to Urgent Supplemental
Manifestation; Rollo, pp. 173-176), respectively, averring
developments that transpired after the filing of the
petition and stressing the urgency for the issuance of the
writ of preliminary injunction or temporary restraining
order.

On September 22, 1992, this Court ". . . Resolved to

REQUIRE the respondents to MAINTAIN in the meantime,
the STATUS QUO pending filing of comments by said
respondents on the original supplemental manifestation"
(Rollo, p. 177).

On September 29, 1992, petitioners filed a motion to

direct respondent Secretary of Health to comply with the

Resolution dated September 22, 1992 (Rollo, pp. 182192, Annexes, pp. 192-203). In a Resolution dated
October 1, 1992, this Court required respondent
Secretary of Health to comment on the said motion.

On September 29, 1992, in a pleading entitled "Omnibus

Submission," respondent NCMH Nurses Association
submitted its Comment to the Petition, Supplemental
Petition and Urgent Supplemental Manifestation.
Included in said pleadings were the motions to hold the
lawyers of petitioners in contempt and to disbar them
(Rollo, pp. 210-267). Attached to the "Omnibus
Submission" as annexes were the orders and pleadings
filed in Administrative Case No. OBM-ADM-0-91-1051
against petitioners (Rollo, pp. 268-480).

The Motion for Disbarment charges the lawyers of

petitioners with:
(1) unlawfully advising or otherwise causing or inducing
their clients petitioners Buenaseda, et al., to openly
defy, ignore, disregard, disobey or otherwise violate,
maliciously evade their preventive suspension by Order of
July 7, 1992 of the Ombudsman . . ."; (2) "unlawfully
interfering with and obstructing the implementation of
the said order (Omnibus Submission, pp. 50-52; Rollo, pp.
259-260); and (3) violation of the Canons of the Code of
Professional Responsibility and of unprofessional and

unethical conduct "by foisting blatant lies, malicious

falsehood and outrageous deception" and by committing
subornation of perjury, falsification and fabrication in
their pleadings (Omnibus Submission, pp. 52-54; Rollo,
pp. 261-263).

On November 11, 1992, petitioners filed a "Manifestation

and Supplement to 'Motion to Direct Respondent
Secretary of Health to Comply with 22 September 1992
Resolution'" (Manifestation attached to Rollo without
pagination between pp. 613 and 614 thereof).

On November 13, 1992, the Solicitor General submitted

its Comment dated November 10, 1992, alleging that: (a)
"despite the issuance of the September 22, 1992
Resolution directing respondents to maintain the status
quo, respondent Secretary refuses to hold in abeyance
the implementation of petitioners' preventive suspension;
(b) the clear intent and spirit of the Resolution dated
September 22, 1992 is to hold in abeyance the
implementation of petitioners' preventive suspension, the
status quo obtaining the time of the filing of the instant
petition; (c) respondent Secretary's acts in refusing to
hold in abeyance implementation of petitioners'
preventive suspension and in tolerating and approving
the acts of Dr. Abueva, the OIC appointed to replace

petitioner Buenaseda, are in violation of the Resolution

dated September 22, 1992; and
(d) therefore, respondent Secretary should be directed to
comply with the Resolution dated September 22, 1992
immediately, by restoring the status quo ante
contemplated by the aforesaid resolution" (Comment
attached to Rollo without paginations between pp. 613614 thereof).

In the Resolution dated November 25, 1992, this Court

required respondent Secretary to comply with the
aforestated status quo order, stating inter alia, that:

It appearing that the status quo ante litem motam, or the

last peaceable uncontested status which preceded the
present controversy was the situation obtaining at the
time of the filing of the petition at bar on September 7,
1992 wherein petitioners were then actually occupying
their respective positions, the Court hereby ORDERS that
petitioners be allowed to perform the duties of their
respective positions and to receive such salaries and
benefits as they may be lawfully entitled to, and that
respondents and/or any and all persons acting under
their authority desist and refrain from performing any act
in violation of the aforementioned Resolution of
September 22, 1992 until further orders from the Court
(Attached to Rollo after p. 615 thereof).

On December 9, 1992, the Solicitor General, commenting

on the Petition, Supplemental Petition and Supplemental
Manifestation, stated that (a) "The authority of the
Ombudsman is only to recommend suspension and he has
no direct power to suspend;" and (b) "Assuming the
Ombudsman has the power to directly suspend a
government official or employee, there are conditions
required by law for the exercise of such powers; [and]
said conditions have not been met in the instant case"
(Attached to Rollo without pagination).

In the pleading filed on January 25, 1993, petitioners

adopted the position of the Solicitor General that the
Ombudsman can only suspend government officials or
employees connected with his office. Petitioners also
refuted private respondents' motion to disbar petitioners'
counsel and to cite them for contempt (Attached to Rollo
without pagination).

The crucial issue to resolve is whether the Ombudsman

has the power to suspend government officials and
employees working in offices other than the Office of the
Ombudsman, pending the investigation of the
administrative complaints filed against said officials and
employees.

In upholding the power of the Ombudsman to

preventively suspend petitioners, respondents (Urgent
Motion to Lift Status Quo, etc, dated January 11, 1993,
pp. 10-11), invoke Section 24 of R.A. No. 6770, which
provides:

Sec. 24. Preventive Suspension. The Ombudsman or

his Deputy may preventively suspend any officer or
employee under his authority pending an investigation, if
in his judgment the evidence of guilt is strong, and (a)
the charge against such officer or employee involves
dishonesty, oppression or grave misconduct or neglect in
the performance of duty; (b) the charge would warrant
removal from the service; or (c) the respondent's
continued stay in office may prejudice the case filed
against him.

The preventive suspension shall continue until the case is

terminated by the Office of Ombudsman but not more
than six months, without pay, except when the delay in
the disposition of the case by the Office of the
Ombudsman is due to the fault, negligence or petition of
the respondent, in which case the period of such delay
shall not be counted in computing the period of
suspension herein provided.

Respondents argue that the power of preventive

suspension given the Ombudsman under Section 24 of
R.A. No. 6770 was contemplated by Section 13 (8) of
Article XI of the 1987 Constitution, which provides that
the Ombudsman shall exercise such other power or
perform such functions or duties as may be provided by
law."

On the other hand, the Solicitor General and the

petitioners claim that under the 1987 Constitution, the
Ombudsman can only recommend to the heads of the
departments and other agencies the preventive
suspension of officials and employees facing
administrative investigation conducted by his office.
Hence, he cannot order the preventive suspension
himself.

They invoke Section 13(3) of the 1987 Constitution which

provides that the Office of the Ombudsman shall have
inter alia the power, function, and duty to:

Direct the officer concerned to take appropriate action

against a public official or employee at fault, and
recommend his removal, suspension, demotion, fine,
censure or prosecution, and ensure compliance therewith.

The Solicitor General argues that under said provision of

the Constitutions, the Ombudsman has three distinct
powers, namely: (1) direct the officer concerned to take
appropriate action against public officials or employees at
fault; (2) recommend their removal, suspension,
demotion fine, censure, or prosecution; and (3) compel
compliance with the recommendation (Comment dated
December 3, 1992, pp. 9-10).

The line of argument of the Solicitor General is a siren call

that can easily mislead, unless one bears in mind that
what the Ombudsman imposed on petitioners was not a
punitive but only a preventive suspension.

When the constitution vested on the Ombudsman the

power "to recommend the suspension" of a public official
or employees (Sec. 13 [3]), it referred to "suspension," as
a punitive measure. All the words associated with the
word "suspension" in said provision referred to penalties
in administrative cases, e.g. removal, demotion, fine,
censure. Under the rule of Noscitor a sociis, the word
"suspension" should be given the same sense as the other
words with which it is associated. Where a particular
word is equally susceptible of various meanings, its
correct construction may be made specific by considering
the company of terms in which it is found or with which it

is associated (Co Kim Chan v. Valdez Tan Keh, 75 Phil.

371 [1945]; Caltex (Phils.) Inc. v. Palomar, 18 SCRA 247
[1966]).

Section 24 of R.A. No. 6770, which grants the

Ombudsman the power to preventively suspend public
officials and employees facing administrative charges
before him, is a procedural, not a penal statute. The
preventive suspension is imposed after compliance with
the requisites therein set forth, as an aid in the
investigation of the administrative charges.

Under the Constitution, the Ombudsman is expressly

authorized to recommend to the appropriate official the
discipline or prosecution of erring public officials or
employees. In order to make an intelligent determination
whether to recommend such actions, the Ombudsman has
to conduct an investigation. In turn, in order for him to
conduct such investigation in an expeditious and efficient
manner, he may need to suspend the respondent.

The need for the preventive suspension may arise from

several causes, among them, the danger of tampering or
destruction of evidence in the possession of respondent;
the intimidation of witnesses, etc. The Ombudsman
should be given the discretion to decide when the persons

facing administrative charges should be preventively

suspended.

Penal statutes are strictly construed while procedural

statutes are liberally construed (Crawford, Statutory
Construction, Interpretation of Laws, pp. 460-461;
Lacson v. Romero, 92 Phil. 456 [1953]). The test in
determining if a statute is penal is whether a penalty is
imposed for the punishment of a wrong to the public or
for the redress of an injury to an individual (59 Corpuz
Juris, Sec. 658; Crawford, Statutory Construction, pp.
496-497). A Code prescribing the procedure in criminal
cases is not a penal statute and is to be interpreted
liberally (People v. Adler, 140 N.Y. 331; 35 N.E. 644).

The purpose of R.A. No. 6770 is to give the Ombudsman

such powers as he may need to perform efficiently the
task committed to him by the Constitution. Such being
the case, said statute, particularly its provisions dealing
with procedure, should be given such interpretation that
will effectuate the purposes and objectives of the
Constitution. Any interpretation that will hamper the
work of the Ombudsman should be avoided.

A statute granting powers to an agency created by the

Constitution should be liberally construed for the

advancement of the purposes and objectives for which it

was created (Cf. Department of Public Utilities v.
Arkansas Louisiana Gas. Co., 200 Ark. 983, 142 S.W. (2d)
213 [1940]; Wallace v. Feehan, 206 Ind. 522, 190 N.E.,
438 [1934]).

In Nera v. Garcia, 106 Phil. 1031 [1960], this Court,

holding that a preventive suspension is not a penalty,
said:

Suspension is a preliminary step in an administrative

investigation. If after such investigation, the charges are
established and the person investigated is found guilty of
acts warranting his removal, then he is removed or
dismissed. This is the penalty.

To support his theory that the Ombudsman can only

preventively suspend respondents in administrative cases
who are employed in his office, the Solicitor General leans
heavily on the phrase "suspend any officer or employee
under his authority" in Section 24 of R.A. No. 6770.

The origin of the phrase can be traced to Section 694 of

the Revised Administrative Code, which dealt with

preventive suspension and which authorized the chief of

a bureau or office to "suspend any subordinate or
employee in his bureau or under his authority pending an
investigation . . . ."

Section 34 of the Civil Service Act of 1959 (R.A. No.

2266), which superseded Section 694 of the Revised
Administrative Code also authorized the chief of a bureau
or office to "suspend any subordinate officer or
employees, in his bureau or under his authority."

However, when the power to discipline government

officials and employees was extended to the Civil Service
Commission by the Civil Service Law of 1975 (P.D. No.
805), concurrently with the President, the Department
Secretaries and the heads of bureaus and offices, the
phrase "subordinate officer and employee in his bureau"
was deleted, appropriately leaving the phrase "under his
authority." Therefore, Section 41 of said law only
mentions that the proper disciplining authority may
preventively suspend "any subordinate officer or
employee under his authority pending an investigation . .
." (Sec. 41).

The Administrative Code of 1987 also empowered the

proper disciplining authority to "preventively suspend any

subordinate officer or employee under his authority

pending an investigation" (Sec. 51).

The Ombudsman Law advisedly deleted the words

"subordinate" and "in his bureau," leaving the phrase to
read "suspend any officer or employee under his authority
pending an investigation . . . ." The conclusion that can be
deduced from the deletion of the word "subordinate"
before and the words "in his bureau" after "officer or
employee" is that the Congress intended to empower the
Ombudsman to preventively suspend all officials and
employees under investigation by his office, irrespective
of whether they are employed "in his office" or in other
offices of the government. The moment a criminal or
administrative complaint is filed with the Ombudsman,
the respondent therein is deemed to be "in his authority"
and he can proceed to determine whether said
respondent should be placed under preventive
suspension.

In their petition, petitioners also claim that the

Ombudsman committed grave abuse of discretion
amounting to lack of jurisdiction when he issued the
suspension order without affording petitioners the
opportunity to confront the charges against them during
the preliminary conference and even after petitioners had
asked for the disqualification of Director Arnaw and Atty.

Villa-Rosero (Rollo, pp. 6-13). Joining petitioners, the

Solicitor General contends that assuming arguendo that
the Ombudsman has the power to preventively suspend
erring public officials and employees who are working in
other departments and offices, the questioned order
remains null and void for his failure to comply with the
requisites in Section 24 of the Ombudsman Law
(Comment dated December 3, 1992, pp. 11-19).

Being a mere order for preventive suspension, the

questioned order of the Ombudsman was validly issued
even without a full-blown hearing and the formal
presentation of evidence by the parties. In Nera, supra,
petitioner therein also claimed that the Secretary of
Health could not preventively suspend him before he
could file his answer to the administrative complaint. The
contention of petitioners herein can be dismissed
perfunctorily by holding that the suspension meted out
was merely preventive and therefore, as held in Nera,
there was "nothing improper in suspending an officer
pending his investigation and before tho charges against
him are heard . . . (Nera v. Garcia., supra).

There is no question that under Section 24 of R.A. No.

6770, the Ombudsman cannot order the preventive
suspension of a respondent unless the evidence of guilt is
strong and (1) the charts against such officer or employee

involves dishonesty, oppression or grave misconduct or

neglect in the performance of duty; (2) the charge would
warrant removal from the service; or (3) the respondent's
continued stay in office may prejudice the case filed
against him.

The same conditions for the exercise of the power to

preventively suspend officials or employees under
investigation were found in Section 34 of R.A. No. 2260.

The import of the Nera decision is that the disciplining

authority is given the discretion to decide when the
evidence of guilt is strong. This fact is bolstered by
Section 24 of R.A. No. 6770, which expressly left such
determination of guilt to the "judgment" of the
Ombudsman on the basis of the administrative complaint.
In the case at bench, the Ombudsman issued the order of
preventive suspension only after: (a) petitioners had filed
their answer to the administrative complaint and the
"Motion for the Preventive Suspension" of petitioners,
which incorporated the charges in the criminal complaint
against them (Annex 3, Omnibus Submission, Rollo, pp.
288-289; Annex 4, Rollo,
pp. 290-296); (b) private respondent had filed a reply to
the answer of petitioners, specifying 23 cases of
harassment by petitioners of the members of the private
respondent (Annex 6, Omnibus Submission, Rollo, pp.

309-333); and (c) a preliminary conference wherein the

complainant and the respondents in the administrative
case agreed to submit their list of witnesses and
documentary evidence.

Petitioners herein submitted on November 7, 1991 their

list of exhibits (Annex 8 of Omnibus Submission, Rollo,
pp. 336-337) while private respondents submitted their
list of exhibits (Annex 9 of Omnibus Submission, Rollo,
pp. 338-348).
Under these circumstances, it can not be said that
Director Raul Arnaw and Investigator Amy de VillaRosero acted with manifest partiality and bias in
recommending the suspension of petitioners. Neither can
it be said that the Ombudsman had acted with grave
abuse of discretion in acting favorably on their
recommendation.
The Motion for Contempt, which charges the lawyers of
petitioners with unlawfully causing or otherwise inducing
their clients to openly defy and disobey the preventive
suspension as ordered by the Ombudsman and the
Secretary of Health can not prosper (Rollo, pp. 259-261).
The Motion should be filed, as in fact such a motion was
filed, with the Ombudsman. At any rate, we find that the
acts alleged to constitute indirect contempt were
legitimate measures taken by said lawyers to question

the validity and propriety of the preventive suspension of

their clients.
On the other hand, we take cognizance of the
intemperate language used by counsel for private
respondents hurled against petitioners and their counsel
(Consolidated: (1) Comment on Private Respondent"
"Urgent Motions, etc.;
(2) Adoption of OSG's Comment; and (3) Reply to Private
Respondent's Comment and Supplemental Comment, pp.
4-5).
A lawyer should not be carried away in espousing his
client's cause. The language of a lawyer, both oral or
written, must be respectful and restrained in keeping
with the dignity of the legal profession and with his
behavioral attitude toward his brethren in the profession
(Lubiano v. Gordolla, 115 SCRA 459 [1982]). The use of
abusive language by counsel against the opposing
counsel constitutes at the same time a disrespect to the
dignity of the court of justice. Besides, the use of
impassioned language in pleadings, more often than not,
creates more heat than light.
The Motion for Disbarment (Rollo, p. 261) has no place in
the instant special civil action, which is confined to
questions of jurisdiction or abuse of discretion for the
purpose of relieving persons from the arbitrary acts of
judges and quasi-judicial officers. There is a set of

procedure for the discipline of members of the bar

separate and apart from the present special civil action.
WHEREFORE, the petition is DISMISSED and the Status
quo ordered to be maintained in the Resolution dated
September 22, 1992 is LIFTED and SET ASIDE.
SO ORDERED.

EN BANC
[G.R. No. 131012. April 21, 1999]

HON. RICARDO T. GLORIA, in his capacity as Secretary of

the Department of Education, Culture, and Sports,
petitioner, vs. COURT OF APPEALS, AMPARO A. ABAD,
VIRGILIA M. BANDIGAS, ELIZABETH A. SOMEBANG and
NICANOR MARGALLO, respondents.
DECISION
MENDOZA, J.:

This case arose out of the unfortunate strikes and walkouts staged by public school teachers on different dates
in September and October 1990. The illegality of the
strikes was declared in our 1991 decision in Manila Public
School Teachers Association v. Laguio, Jr.,[1] but many
incidents of those strikes are still to be resolved. At issue

in this case is the right to back salaries of teachers who

were either dismissed or suspended because they did not
report for work but who were eventually ordered
reinstated because they had not been shown to have
taken part in the strike, although reprimanded for being
absent without leave.

The facts are as follows:

Private respondents are public school teachers. On

various dates in September and October 1990, during the
teachers strikes, they did not report for work. For this
reason, they were administratively charged with (1)
grave misconduct, (2) gross neglect of duty, (3) gross
violation of Civil Service Law Rules and Regulations and
reasonable office regulations, (4) refusal to perform
official duty, (5) gross insubordination, (6) conduct
prejudicial to the best interest of the service, and (7)
absence without leave (AWOL), and placed under
preventive suspension. The investigation was concluded
before the lapse of their 90-day suspension and private
respondents were found guilty as charged. Respondent
Nicanor Margallo was ordered dismissed from the service
effective October 29, 1990, while respondents Amparo
Abad, Virgilia Bandigas, and Elizabeth Somebang were
ordered suspended for six months effective December 4,
1990.[2]

Respondent Margallo appealed to the Merit Systems and

Protection Board (MSPB) which found him guilty of
conduct prejudicial to the best interest of the service and
imposed on him a six-month suspension.[3] The other
respondents also appealed to the MSPB, but their appeal
was dismissed because of their failure to file their appeal
memorandum on time.[4]

On appeal, the Civil Service Commission (CSC) affirmed

the decision of the MSPB with respect to Margallo, but
found the other three (Abad, Bandigas, and Somebang)
guilty only of violation of reasonable office rules and
regulations by failing to file applications for leave of
absence and, therefore, reduced the penalty imposed on
them to reprimand and ordered them reinstated to their
former positions.

Respondents filed a petition for certiorari under Rule 65

in this Court. Pursuant to Revised Administrative Circular
No. 1-95, the case was referred to the Court of Appeals
which, on September 3, 1996, rendered a decision (1)
affirming the decision of the CSC with respect to Amparo
Abad, Virgilia Bandigas, and Elizabeth Somebang but (2)
reversing it insofar as the CSC ordered the suspension of
Nicanor Margallo. The appellate court found him guilty of

violation of reasonable office rules and regulations only

and imposed on him the penalty of reprimand.[5]

Private respondents moved for a reconsideration,

contending that they should be exonerated of all charges
against them and that they be paid salaries during their
suspension. In its resolution, dated July 15, 1997, the
Court of Appeals, while maintaining its finding that
private respondents were guilty of violation of reasonable
office rules and regulations for which they should be
reprimanded, ruled that private respondents were
entitled to the payment of salaries during their
suspension beyond ninety (90) days. Accordingly, the
appellate court amended the dispositive portion of its
decision to read as follows:

WHEREFORE, IN VIEW OF THE FOREGOING, petition is

hereby DENIED. CSC Resolution Nos. 93-2302 dated June
24, 1993 and 93-3124 dated August 10, 1993 (In re:
Amparo Abad), CSC Resolution Nos. 93-2304 dated June
24, 1993 and 93-3227 dated August 17, 1993 (In re:
Virgilia Bandigas) and CSC Resolution Nos. 93-2301
undated and 93-3125 dated August 10, 1993 (In re:
Elizabeth Somebang) are hereby AFFIRMED while CSC
Resolution Nos. 93-2211 dated June 21, 1993 are hereby
MODIFIED finding petitioner Nicanor Margallo guilty of a
lesser offense of violation of reasonable office rules and

regulations and meting upon him the penalty of

reprimand. Respondent DECS is ordered to pay
petitioners Amparo Abad, Virgilia Bandigas, Elizabeth
Somebang and Nicanor Margallo their salaries,
allowances and other benefits during the period of their
suspension/dismissal beyond the ninety (90) day
preventive suspension. No pronouncement as to costs.[6]

Petitioner Ricardo T. Gloria, then Secretary of Education,

Culture, and Sports, moved for a reconsideration insofar
as the resolution of the Court of Appeals ordered the
payment of private respondents salaries during the period
of their appeal.[7] His motion was, however, denied by
the appellate court in its resolution of October 6, 1997.[8]
Hence, this petition for review on certiorari.

Petitioner contends that the administrative investigation

of respondents was concluded within the 90-day period of
preventive suspension, implying that the continued
suspension of private respondents is due to their appeal,
hence, the government should not be held answerable for
payment of their salaries. Moreover, petitioner lays so
much store by the fact that, under the law, private
respondents are considered under preventive suspension
during the period of their appeal and, for this reason, are
not entitled to the payment of their salaries during their
suspension.[9]

Petitioners contentions have no merit.

I. Preventive Suspension and the Right to Compensation

in Case of Exoneration

The present Civil Service Law is found in Book V, Title I,

Subtitle A of the Administrative Code of 1987 (E.O. 292).
So far as pertinent to the questions in this case, the law
provides:

SEC. 47. Disciplinary Jurisdiction. -

....

(2) The Secretaries and heads of agencies and

instrumentalities, provinces, cities and municipalities
shall have jurisdiction to investigate and decide matters
involving disciplinary action against officers and
employees under their jurisdiction. Their decisions shall
be final in case the penalty imposed is suspension for not
more than thirty days or fine in an amount not exceeding
thirty days salary. In case the decision rendered by a
bureau or office head is appealable to the Commission,

the same may be initially appealed to the department and

finally to the Commission and pending appeal, the same
shall be executory except when the penalty is removal, in
which case the same shall be executory only after
confirmation by the Secretary concerned.

....

(4) An appeal shall not stop the decision from being

executory, and in case the penalty is suspension or
removal, the respondent shall be considered as having
been under preventive suspension during the pendency of
the appeal in the event he wins an appeal.

SEC. 51. Preventive Suspension. - The proper disciplining

authority may preventively suspend any subordinate
officer or employee under his authority pending an
investigation, if the charge against such officer or
employee involves dishonesty, oppression or grave
misconduct, or neglect in the performance of duty, or if
there are reasons to believe that the respondent is guilty
of charges which would warrant his removal from the
service.

SEC. 52. Lifting of Preventive Suspension. Pending

Administrative Investigation. - When the administrative
case against the officer or employee under preventive
suspension is not finally decided by the disciplining
authority within the period of ninety (90) days after the
date of suspension of the respondent who is not a
presidential appointee, the respondent shall be
automatically reinstated in the service: Provided, That
when the delay in the disposition of the case is due to the
fault, negligence or petition of the respondent, the period
of delay shall not be counted in computing the period of
suspension herein provided.

There are thus two kinds of preventive suspension of civil

service employees who are charged with offenses
punishable by removal or suspension: (1) preventive
suspension pending investigation (51) and (2) preventive
suspension pending appeal if the penalty imposed by the
disciplining authority is suspension or dismissal and, after
review, the respondent is exonerated (47(4)).

Preventive suspension pending investigation is not a

penalty.[10] It is a measure intended to enable the
disciplining authority to investigate charges against
respondent by preventing the latter from intimidating or
in any way influencing witnesses against him. If the
investigation is not finished and a decision is not

rendered within that period, the suspension will be lifted

and the respondent will automatically be reinstated. If
after investigation respondent is found innocent of the
charges and is exonerated, he should be reinstated.

A. No Right to Compensation for Preventive Suspension

Pending Investigation Even if Employee is Exonerated

Is he entitled to the payment of salaries during the period

of suspension? As already stated, the Court of Appeals
ordered the DECS to pay private respondents their
salaries, allowances, and other benefits beyond the
ninety (90) day preventive suspension. In other words,
no compensation was due for the period of the preventive
suspension pending investigation but only for the period
of preventive suspension pending appeal in the event the
employee is exonerated.

The separate opinion of Justice Panganiban argues that

the employee concerned should be paid his salaries after
his suspension.

The Civil Service Act of 1959 (R.A. No. 2260) provided for
the payment of such salaries in case of exoneration. Sec.
35 read:

Sec. 35. Lifting of Preventive Suspension Pending

Administrative Investigation. - When the administrative
case against the officer or employee under preventive
suspension is not finally decided by the Commissioner of
Civil Service within the period of sixty (60) days after the
date of suspension of the respondent, the respondent
shall be reinstated in the service. If the respondent
officer or employee is exonerated, he shall be restored to
his position with full pay for the period of suspension.[11]

However, the law was revised in 1975 and the provision

on the payment of salaries during suspension was
deleted. Sec. 42 of the Civil Service Decree (P.D. No. 807)
read:

Sec. 42. Lifting of Preventive Suspension Pending

Administrative Investigation. - When the administrative
case against the officer or employee under preventive
suspension is not finally decided by the disciplining
authority within the period of ninety (90) days after the
date of suspension of the respondent who is not a
presidential appointee, the respondent shall be
automatically reinstated in the service; Provided, That
when the delay in the disposition of the case is due to the
fault, negligence or petition of the respondent, the period

of delay shall not be counted in computing the period of

suspension herein provided.

This provision was reproduced in 52 of the present Civil

Service Law. It is noteworthy that the Ombudsman Act of
1989 (R.A. No. 6770) categorically provides that
preventive suspension shall be without pay. Sec. 24
reads:

Sec. 24. Preventive Suspension. The Ombudsman or his

Deputy may preventively suspend any officer or employee
under his authority pending an investigation, if in his
judgment the evidence of guilt is strong, and (a) the
charge against such officer or employee involves
dishonesty, oppression or grave misconduct or neglect in
the performance of duty; (b) the charges would warrant
removal from the service; or (c) the respondents
continued stay in office may prejudice the case filed
against him.

The preventive suspension shall continue until the case is

terminated by the Office of the Ombudsman but not more
than six months, without pay, except when the delay in
the disposition of the case by the Office of the
Ombudsman is due to the fault, negligence or petition of
the respondent, in which case the period of such delay

shall not be counted in computing the period of

suspension herein provided.

It is clear that the purpose of the amendment is to

disallow the payment of salaries for the period of
suspension. This conclusion is in accord with the rule of
statutory construction that -

As a rule, the amendment by deletion of certain words or

phrases in a statute indicates that the legislature
intended to change the meaning of the statute, for the
presumption is that the legislature would not have made
the deletion had the intention been not in effect a change
in its meaning. The amended statute should accordingly
be given a construction different from that previous to its
amendment.[12]

The separate opinion of Justice Panganiban pays no heed

to the evident legislative intent to deny payment of
salaries for the preventive suspension pending
investigation.

First, it says that to deny compensation for the period of

preventive suspension would be to reverse the course of
decisions ordering the payment of salaries for such

period. However, the cases[13] cited are based either on

the former rule which expressly provided that if the
respondent officer or employee is exonerated, he shall be
restored to his position with full pay for the period of
suspension[14] or that upon subsequent reinstatement of
the suspended person or upon his exoneration, if death
should render reinstatement impossible, any salary so
withheld shall be paid,[15] or on cases which do not
really support the proposition advanced.

Second, it is contended that the exoneration of

employees who have been preventively suspended is
proof that there was no reason at all to suspend them and
thus makes their preventive suspension a penalty.

The principle governing entitlement to salary during

suspension is cogently stated in Floyd R. Mechems A
Treatise on the Law of Public Offices and Officers as
follows:

864. Officer not entitled to Salary during Suspension from

Office. - An officer who has been lawfully suspended from
his office is not entitled to compensation for the period
during which he was so suspended, even though it be
subsequently determined that the cause for which he was
suspended was insufficient. The reason given is that

salary and perquisites are the reward of express or

implied services, and therefore cannot belong to one who
could not lawfully perform such services.[16]

Thus, it is not enough that an employee is exonerated of

the charges against him. In addition, his suspension must
be unjustified. The case of Bangalisan v. Court of Appeals
itself similarly states that payment of salaries
corresponding to the period [1] when an employee is not
allowed to work may be decreed if he is found innocent of
the charges which caused his suspension and [2] when
the suspension is unjustified.[17]

The preventive suspension of civil service employees

charged with dishonesty, oppression or grave
misconduct, or neglect of duty is authorized by the Civil
Service Law. It cannot, therefore, be considered
unjustified, even if later the charges are dismissed so as
to justify the payment of salaries to the employee
concerned. It is one of those sacrifices which holding a
public office requires for the public good. For this reason,
it is limited to ninety (90) days unless the delay in the
conclusion of the investigation is due to the employee
concerned. After that period, even if the investigation is
not finished, the law provides that the employee shall be
automatically reinstated.

Third, it is argued in the separate opinion that to deny

employees salaries on the frivolous ground that the law
does not provide for their payment would be to provide a
tool for the oppression of civil servants who, though
innocent, may be falsely charged of grave or less grave
administrative offenses. Indeed, the possibility of abuse
is not an argument against the recognition of the
existence of power. As Justice Story aptly put it, It is
always a doubtful course, to argue against the use or
existence of a power, from the possibility of its abuse. . . .
[For] from the very nature of things, the absolute right of
decision, in the last resort, must rest somewhere wherever it may be vested it is susceptible of abuse.[18]
It may be added that if and when such abuse occurs, that
would be the time for the courts to exercise their naysaying function. Until then, however, the public interest
in an upright civil service must be upheld.

Finally, it is argued that even in the private sector, the

law provides that employees who are unjustly dismissed
are entitled to reinstatement with full pay. But that is
because R.A. No. 6715 expressly provides for the
payment to such employees of full backwages, inclusive
of allowances, and . . . other benefits or their monetary
equivalent computed from the time his compensation was
withheld from him up to the time of his actual
reinstatement.[19] In the case of the public sector, as has
been noted, the provision for payment of salaries during

the preventive suspension pending investigation has been

deleted.

B. Right to Compensation for Preventive Suspension

Pending Appeal if Employee is Exonerated
But although we hold that employees who are
preventively suspended pending investigation are not
entitled to the payment of their salaries even if they are
exonerated, we do not agree with the government that
they are not entitled to compensation for the period of
their suspension pending appeal if eventually they are
found innocent.
Preventive suspension pending investigation, as already
discussed, is not a penalty but only a means of enabling
the disciplining authority to conduct an unhampered
investigation. On the other hand, preventive suspension
pending appeal is actually punitive although it is in effect
subsequently considered illegal if respondent is
exonerated and the administrative decision finding him
guilty is reversed. Hence, he should be reinstated with full
pay for the period of the suspension. Thus, 47(4) states
that respondent shall be considered as under preventive
suspension during the pendency of the appeal in the
event he wins. On the other hand, if his conviction is
affirmed, i.e., if he is not exonerated, the period of his
suspension becomes part of the final penalty of
suspension or dismissal.

It is precisely because respondent is penalized before his

sentence is confirmed that he should be paid his salaries
in the event he is exonerated. It would be unjust to
deprive him of his pay as a result of the immediate
execution of the decision against him and continue to do
so even after it is shown that he is innocent of the
charges for which he was suspended. Indeed, to sustain
the governments theory would be to make the
administrative decision not only executory but final and
executory. The fact is that 47(2) and (4) are similar to the
execution of judgment pending appeal under Rule 39, 2
of the Rules of Court. Rule 39, 5 provides that in the
event the executed judgment is reversed, there shall be
restitution or reparation of damages as equity and justice
may require.

Sec. 47 of the present law providing that an

administrative decision meting out the penalty of
suspension or dismissal shall be immediately executory
and that if the respondent appeals he shall be considered
as being merely under preventive suspension if eventually
he prevails is taken from 37 of the Civil Service Decree of
1975 (P.D. No. 807). There was no similar provision in the
Civil Service Act of 1959 (R.A. No. 2260), although under
it the Commissioner of Civil Service could order the
immediate execution of an administrative decision in the
interest of the public service.[20] Nor was there provision
for immediate execution of administrative decisions

ordering dismissal or suspension in 695 of the

Administrative Code of 1917, as amended by C.A. No. 598,
1.[21] Nonetheless, under R.A. No. 2260 the payment of
salaries was ordered in cases in which employees were
found to be innocent of the charges[22] or their
suspension was held to be unjustified, because the
penalty of suspension or dismissal was executed without
a finding by the Civil Service Commissioner that it was
necessary in the interest of the public service.[23] On the
other hand, payment of back salaries was denied where it
was shown that the employee concerned was guilty as
charged and the immediate execution of the decision was
ordered by the Civil Service Commissioner in the interest
of the public service.[24]
Nothing in what has thus far been said is inconsistent
with the reason for denying salaries for the period of
preventive suspension. We have said that an employee
who is exonerated is not entitled to the payment of his
salaries because his suspension, being authorized by law,
cannot be unjustified. To be entitled to such
compensation, the employee must not only be found
innocent of the charges but his suspension must likewise
be unjustified. But though an employee is considered
under preventive suspension during the pendency of his
appeal in the event he wins, his suspension is unjustified
because what the law authorizes is preventive suspension
for a period not exceeding 90 days. Beyond that period
the suspension is illegal. Hence, the employee concerned

is entitled to reinstatement with full pay. Under existing

jurisprudence, such award should not exceed the
equivalent of five years pay at the rate last received
before the suspension was imposed.[25]
II. Private Respondents Entitled to Back Salaries
Although Found Guilty of Violation of Office Rules and
Regulations and Reprimanded
Private respondents were exonerated of all charges
against them for acts connected with the teachers strike
of September and October 1990. Although they were
absent from work, it was not because of the strike. For
being absent without leave, they were held liable for
violation of reasonable office rules and regulations for
which the penalty is a reprimand. Their case thus falls
squarely within ruling in Bangalisan, which likewise
involved a teacher found guilty of having violated
reasonable office rules and regulations. Explaining the
grant of salaries during their suspension despite the fact
that they were meted out reprimand, this Court stated:
With respect to petitioner Rodolfo Mariano, payment of
his backwages is in order. A reading of the resolution of
the Civil Service Commission will show that he was
exonerated of the charges which formed the basis for his
suspension. The Secretary of the DECS charged him with
and he was later found guilty of grave misconduct, gross
neglect of duty, gross violation of the Civil Service Law,
rules and regulations and reasonable office regulations,

refusal to perform official duty, gross insubordination,

conduct prejudicial to the best interest of the service, and
absence without official leave, for his participation in the
mass actions on September 18, 20 and 21, 1990. It was
his alleged participation in the mass actions that was the
basis of his preventive suspension and, later, his
dismissal from the service.
However, the Civil Service Commission, in the questioned
resolution, made a finding that Mariano was not involved
in the mass actions but was absent because he was in
Ilocos Sur to attend the wake and interment of his
grandmother. Although the CSC imposed upon him the
penalty of reprimand, the same was for his violation of
reasonable office rules and regulations because he failed
to inform the school of his intended absence and neither
did he file an application for leave covering such
absences.
Under Section 23 of the Rules Implementing Book V of
Executive Order No. 292 and other pertinent civil service
laws, in violations of reasonable office rules and
regulations, the first offense is punishable by reprimand.
To deny petitioner Mariano his back wages during his
suspension would be tantamount to punishing him after
his exoneration from the charges which caused his
dismissal from the service.[26]
In Jacinto v. Court of Appeals,[27] a public school teacher
who was found guilty of violation of reasonable office

rules and regulations for having been absent without

leave and reprimanded was given back salaries after she
was exonerated of the charge of having taken part in the
strikes.
Petitioner Secretary of Education contends, however, that
respondents Abad, Bandigas, and Somebang signed a
letter in which they admitted having taken part in the
mass action. This question cannot be raised now. The Civil
Service Commission gave no weight to this letter in view
of individual letters written by the three citing reasons for
their absences, to wit: Abad, because she decided to stay
home to correct student papers; Bandigas, because she
had to accompany her brother to the Commission on
Immigration, and Somebang because of economic
reasons. Petitioner did not appeal from this ruling. Hence,
he is bound by the factual findings of the CSC and the
appellate court.
WHEREFORE, the decision, dated September 3, 1996, as
amended by the resolutions, dated July 15, 1997 and
October 6, 1997, of the Court of Appeals, is hereby
AFFIRMED with the MODIFICATION that the award of
salaries to private respondents shall be computed from
the time of their dismissal/suspension by the Department
of Education, Culture, and Sports until their actual
reinstatement, for a period not exceeding five years.
SO ORDERED.