CivPro-Ass15.docx - LXVI RULE 66 Quo warranto G.R No...

Unformatted text preview: LXVI. RULE 66: Quo warranto G.R. No. L-18315 September 29, 1962 ERNESTO CAMPOS and FLORENCIO OROC, petitioners-appellants, vs. ESTEBAN DEGAMO and FELINO PALARCA, Respondents. PAREDES, J.:chanrobles virtual law library The complaint, styled "Quo warranto", filed on September 27, 1960, alleges that in the election of November, 1959, petitioners Ernesto Campos and Florencio Oroc were elected and proclaimed councilor No. 1 and councilor No. 2, respectively, of the municipality of Carmen, Agusan; that on December 7, 1959, respondents Esteban Degamo and Felino Palarca were proclaimed Mayor and Vice Mayor, respectively, of the said municipality, not withstanding the protest and request that the proclamation be suspended on the ground that the Board of Canvassers used in their canvass for election in Precinct 6, the election return coming from the Provincial Treasurer's Office, inspite of the fact that the copy of election return in the hands of the municipal treasury of Carmen was available; that there was no valid canvass for the offices of Mayor and Vice Mayor effected and the respondents could not legally occupy the said positions; that on August 8, 1960, the respondents stalled their own offices in a temporary building near the municipal hall, and appointed policemen, with the approval of the Provincial Treasurer; and that petitioner made verbal demands upon respondents to stop forming the duties and functions of said offices, but respondents denied and refused, thereby making the public believe they were the lawful officials of said municipality. Petitioners, therefore, prayed (a) that a writ quo warranto be issued ousting and excluding respondents Degamo and Palarca from the office of mayor and vice-mayor of Carmen, respectively; and that they be declared entitled to said offices and placed forthwith possession thereof.chanroblesvirtualawlibrarychanrobles virtual law library Respondents answering, after the usual admissions and denials, averred that the Board of Canvassers was created and appointed by and acted upon instruction of, the Commission on Elections; that they were duly elected by the people and validly proclaimed by the said Board; that they occupied another building as their office, because the then incumbent and defeated Municipal Mayor Jose Malimit only vacated the municipal building on September 22, 1960; and that on January 1960, respondent Degamo, as new mayor, terminated the services of the policeman appointed by ex-mayor Malimit, and on September 22, 1960, the Philippine Constabulary disarmed all the policemen appointed by said Ex-Mayor. As affirmative defenses, respondents claimed that (1) the petition was filed outside the reglementary period; (2) there was no sufficient cause of action; (3) the petitioners had no legal personality or authority to file the present case; 4) the court had no jurisdiction over the petition and the petitioners; (5) there was a pending case of the same nature and of substantially the same allegations against the respondents, before the same court; and (6) the respondents took their oaths of office and performed their respective duties starting January 1, 1960. In their counterclaim, respondents prayed for moral damages and attorneys fees.chanroblesvirtualawlibrarychanrobles virtual law library On January 28, 1961, the lower court issued the following order: The present quo warranto seeks the ouster of the respondents Esteban Degamo and Felino Palarca from the positions of mayor and vice-mayor, respectively, of Carmen, Agusan. The allegations of the petition show that it is not based upon section 173 of the Revised Election Code because the petitioners Ernesto Campos and Florencio Oroc were not candidates for the same positions but for the positions of councilors of the municipality of Carmen in the 1959 elections. Besides, the period of one week from the proclamation for the filing of quo warranto under the election law has long expired.chanroblesvirtualawlibrarychanrobles virtual law library This quo warranto may therefore be considered as an ordinary quo warranto under the Rules of Court, but it cannot prosper because it fails to state a cause of action, the petitioners not being entitled to the positions of mayor and vice mayor of the municipality of Carmen, Agusan, inasmuch as there is at present pending before the Supreme Court a case of quo warranto over these two positions filed by Jose Malimit and Vicente Acain against the herein respondents Esteban Degamo and Felino Palarca. Although the appealed case was dismissed by this Court on jurisdictional grounds, the appellate court may reverse the decision and order this Court to proceed with the hearing of said quo warranto. Hence, this action is premature.chanroblesvirtualawlibrarychanrobles virtual law library WHEREFORE, for lack of jurisdiction and cause of action, this petition is hereby dismissed with costs against the petitioners. Petitioners appealed directly to this Court on purely questions of law, claiming in their brief that the lower court erred (1) in declaring that they are not entitled to the said positions of Mayor and Vice-Mayor; and (2) in declaring that the petition states no cause of action.chanroblesvirtualawlibrarychanrobles virtual law library The dominant facts brought out at the hearing, pleadings and decisions of our court, of which we take judicial cognizance, are the following: That neither petitioner Campos nor Oroc, was a candidate for the office of mayor or vice-mayor of the municipality of Carmen during the 1959 elections; that Degamo and Palarca were candidates and duly elected mayor and vice-mayor of said municipality in said election and their close rivals were Jose Malimit for Mayor and Vicente Acain for Vice-Mayor; that when this present action for quo warranto (Sp. Civil Case No. 117) was filed with the CFI of Agusan, there was pending Quo warrantoproceeding filed by Malimit and Acain against Degamo and Palarca for the same offices 1 and an election protest was also filed by Malimit against Degamo; 2 and that the complaint in special civil case No. 117 did not set forth the names of Malimit and Acain who also claimed to be entitled to the offices in question.chanroblesvirtualawlibrarychanrobles virtual law library Under the theory that Special Civil Action No. 117 comes under the provisions of the Revised Election Code, its filing violates section 173 thereof which states: When a person who is not eligible is elected to a provincial or Municipal Office, his right to the Office may be contested by any registered candidate for the same office before the Court of First Instance of the province, within one week after the proclamation of his election, by filing a petition for quo warranto. The case shall be conducted in accordance with the usual procedure and shall be decided within thirty days from the filing of the complaint. A copy of the decision shall be furnished the Commission on Elections. Petitioners Campos and Oroc were not registered candidates for the offices of mayor and vice-mayor, and the quo warranto was not filed within one week after the proclamation of the persons sought to be ousted - the respondents herein. The proclamation of the respondents was made on December 7, 1959, and the present quo warranto complaint was filed on September 27, 1960, about a year later.chanroblesvirtualawlibrarychanrobles virtual law library On the assumption that the present action is presented as an ordinary quo warranto case (Rule 68, Rules of Court), same can not also prosper. Section 7, Rule 68, provides: What complaint for usurpation to set forth, and who may be made parties. - When the action is against a person for usurping an office or franchise, the complaint shall set forth the name of the person who claims to be entitled thereto, if any, with an averment of his right to the same and that the defendant is unlawfully in possession thereof. All persons who claim to be entitled to the office or franchise may be made parties, and their respective rights to such office or franchise determined, in the same action. Malimit and Acain who claimed to be entitled to the offices of mayor and vice-mayor, respectively, are not parties herein. The complaint must likewise allege that plaintiffs were duly elected to such positions. Where the office in question is an elective one, the complaint must show that the plaintiff was duly elected thereto (Luna vs. Rodriguez, 38 Phil. 401; Acosta vs. Flor, 5 Phil. 18). Petitionersappellants Campos and Oroc, having been candidates and elected for the office of councilors and not for the office of mayor and vicemayor, they are not the proper parties to institute the present action.chanroblesvirtualawlibrarychanrobles virtual law library Moreover, there being a pending case for quo warranto before this court (G.R. No. L-17850 footnote No. 1, supra) filed by Malimit and Acain against the same Degamo and Palarca, for the office of mayor and vice-mayor of Carmen, respectively, the filing of the case at bar was premature and the cause of action had not as yet accrued.chanroblesvirtualawlibrarychanrobles virtual law library The appeal is dismissed and the order appealed from is affirmed, with costs against the petitioners-appellants. G. R. No. L-40295 July 31, 1978 ABRAHAM C. SISON, petitioner, vs. HON. EPI REY PANGRAMUYEN, Commissioner of Civil Service; GERONIMO LIPUMANO, Mayor, Olongapo City; ALFREDO D. OCAMPO, Officer-in-Charge, Civil Service, Regional Office No. 3, San Fernando, Pampanga; and EUREKA F. MALIWANAG, Assistant City Assesor, Olongapo City, respondent. 1 Domingo & Domingo for petitioner. G. J. de la Llana for respondent City Mayor. M. S. Gerong for respondent Maliwanag. BARREDO, J: Petition denominated as for certiorari us and quo warranto and (1) seeking the annulment of the actions of respondents Regional Director and commissioner of Civil Service in respectively attesting and affirming such attestation of private respondent Eureka F. Maliwanag's appointment as Assistant City Assessor of Olongapo City, extended by the respondent Mayor of said city on November 23, 1973, and (2) assailing the validity of said respondent Commissioner's decision of May 3, 1974 dismissing petitioner's protest and his resolution dated June 24, 1974 denying reconsideration of said decision, and (3) further asking that respondent Commissioner be mandated to appoint petitioner as such Assistant City Assessor and that private respondent Maliwanag be declared as unlawfully usurping said position under a void and illegal appointment. In sum, petitioner would want the Court to hold that since at the time of the appointment in dispute, he was Chief Deputy Assessor exercising, according to his allegation, immediate administrative control and supervision over respondent Maliwanag, who was Senior Deputy Assessor, and inasmuch as he has superior educational and appropriate civil service eligibilities to those of said respondent, the appointment aforementioned extended to the latter by respondent City Mayor is illegal and contrary to law being violative of the rule of next-in-rank. Petitioner maintains that upon the promotion of the Assistant City Assessor to the position of City Assessor, he, petitioner, instead of respondent Maliwanag should have been appointed thereto. We have carefully considered petitioner's contentions in his petition as well as his reply to the answers of the respondents and, at best, We find the issues raised by him to be rather controversial, with the result that it is difficult for Us to categorize respondent public official's impugned actuations as tainted with grave abuse of discretion. Maliwanag's appointment was recommended by the City Assessor and his reasons therefor, stated in said official's indorsement to the Mayor recommending dismissal of petitioner's protest thereto and quoted in the record, are substantial and well taken, as, in fact, they have been reviewed by respondent Commissioner and found to be sustainable, as he did sustain them. We are loathe to substitute Our own judgment for that of the Commissioner of Civil Service who is primarily charged with the administration of the Civil Service Law and rules and regulations, absent, as in this case, convincing showing of palpable error or grave abuse of discretion. After all as We see it, petitioner rests his case mostly on the Organization Chart and the position description or CSC Form No. 122-D of respondent Maliwanag, prepared by petitioner himself, which do not carry the approval of the Mayor, as Department Head, contrary to requirement of Memorandum Circular No. 5, S. 1963 of the Commission of Civil Service touching on the basis for determining the hierarchical relationships of positions, and, therefore, are not necessarily controlling. Withal, the most fatal drawback of petitioner's cause is that he came to the courts out of time. As already stated, the appointment in controversy was made on November 23, 1973 and respondent Maliwanag assumed office on the strength thereof, albeit she claims she has not been paid her salary. On the other hand, the petition herein was filed only on March 13, 1975, clearly more than one year after the pretended right of petitioner to hold the office in question arose. This single circumstance has closed the door for any judicial remedy in his favor. Petitioner contends in regard to this point that Section 16 of Rule 66 invoked by private respondent refers to actions of quo warranto and since his petition is also for certiorari and mandamus, said rule is inapplicable. Such contention is not correct. As earlier noted in this decision, the allegations supporting petitioner's cause or causes of action boil down to no more than the removal of respondent Maliwanag from the position to which she has been appointed in order to be replaced by him, with a new appointment in his favor. Necessarily, the ouster of Maliwanag by quo warranto has to be based on a nullification o her appointment, which petitioner seeks, albeit unnecessarily, by certiorari. His ultimate remedy, therefore, is quo warranto. Besides, even if it could be also viewed as mandamus, it is already settled that his latter remedy prescribes also after one year. (Cornejo vs. Sec. of Justice, L-32818, June 28, 1974, 57 SCRA 663.) And it is of no avail to petitioner that during the intervening period of more than one year, he was seeking relief from the corresponding administrative outhorities. The resort to such administrative remedy does not abate the period for the judicial action. (Torres vs. Quintos, 88 Phil. 436; Galano vs. Roxas, G.R. L-31241, Sept. 12, 1975, 67 SCRA 8.) WHEREFORE, the petition is dismissed and the restraining order heretofore issued is hereby lifted effective immediately. No. costs. Separate Opinions AQUINO, J., dissenting: Petitioner Abraham C. Sison, as the incumbent chief deputy assessor, is the qualified and competent next-in-rank employee who should be promoted to the contested position of assistant city assessor of Olongapo City, as contemplated in section 23 of the Civil Service Law. He is qualified for that position because he is a provincial Assessor eligible and he holds a bachelor's degree in commerce. Those qualifications are required for the position of assistant city assessor. Respondent Eureka F. Maliwanag, who was appointed by the mayor to that position, is not qualified because she is not a provincial assessor eligible and she is not a holder of a bachelor's degree. Her appointment to the contested position is in violation of section 23. Hence, the Commissioner of Civil Service revoked that appointment in his decision of May 3, 1974. However, upon motion for reconsideration, the Commissioner approved that appointment in his decision of June 24, 1974. It is incontestable that Sison is senior to Mrs. Maliwanag. He was appointed senior deputy assessor of Olongapo City effective September 25, 1967. Then, he was promoted to the position of chief deputy assessor of that city on September 1, 1969. On that date, Mrs. Maliwanag was appointed to the position of senior deputy assessor, the position vacated by Sison (pp. 62-63, Rollo). Thus, Sison (not Mrs. Maliwanag) was next in line for the position of assistant city assessor when that position became vacant on November 23, 1973. There is no reason why Mrs. Maliwanag should jump over Sison. The mayor should have apprised Sison as to why he was being bypassed and why Mrs. Maliwanag was being appointed to that position. That legal requirement was not observed. Although Sison's petition in this Court is for certiorari, mandamus and quo warranto, he has no cause of action for quo warranto because Mrs. Maliwanag holds an appointment to the contested position of assistant city assessor. She cannot be regarded as a usurper of that position. Sison's petition should be treated as one for certiorari and mandamus only. Those special civil actions are adequate for assailing the decisions of the Commissioner of Civil Service. The quo warranto aspect of Sisons's petition should be disregarded. Rule 65 of the Rules of Court does not fix any period for the filing of a petition for certiorari and mandamus. The one-year period within which the petition for quo warranto should be filled does not apply to Sison. His petition was delayed because, as he explained, he is a poor man who cannot afford to embark on an expensive and protracted litigation. I vote for the setting aside of the questioned decisions of the Commissioner of Civil Service. The mayor should be directed to appoint Sison to the contested position. Mrs. Maliwanag should be promoted to the position of chief of deputy assessor to be vacated by Sison. Fernando (Chairman), Antonio, Concepcion, Jr. and Santos, JJ., concur. Separate Opinions AQUINO, J., dissenting: Petitioner Abraham C. Sison, as the incumbent chief deputy assessor, is the qualified and competent next-in-rank employee who should be promoted to the contested position of assistant city assessor of Olongapo City, as contemplated in section 23 of the Civil Service Law. He is qualified for that position because he is a provincial Assessor eligible and he holds a bachelor's degree in commerce. Those qualifications are required for the position of assistant city assessor. Respondent Eureka F. Maliwanag, who was appointed by the mayor to that position, is not qualified because she is not a provincial assessor eligible and she is not a holder of a bachelor's degree. Her appointment to the contested position is in violation of section 23. 2 Hence, the Commissioner of Civil Service revoked that appointment in his decision of May 3, 1974. However, upon motion for reconsideration, the Commissioner approved that appointment in his decision of June 24, 1974. It is incontestable that Sison is senior to Mrs. Maliwanag. He was appointed senior deputy assessor of Olongapo City effective September 25, 1967. Then, he was promoted to the position of chief deputy assessor of that city on September 1, 1969. On that date, Mrs. Maliwanag was appointed to the position of senior deputy assessor, the position vacated by Sison (pp. 62-63, Rollo). Thus, Sison (not Mrs. Maliwanag) was next in line for the position of assistant city assessor when that position became vacant on November 23, 1973. There is no reason why Mrs. Maliwanag should jump over Sison. The mayor should have apprised Sison as to why he was being bypassed and why Mrs. Maliwanag was being appointed to that position. That legal requirement was not observed. Although Sison's petition in this Court is for certiorari, mandamus and quo warranto, he has no cause of action for quo warranto because Mrs. Maliwanag holds an appointment to the contested position of assistant city assessor. She cannot be regarded as a usurper of that position. Sison's petition should be treated as one for certiorari and mandamus only. Those special civil actions are adequate for assailing the decisions ...
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