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MENZON VS.

PETILLA 1991 (Gutierrez) Facts: Because no Governor had been proclaimed in the province of Leyte, Secretary of Local Government Luis Santos designated ice! Governor Leopoldo "etilla as #cting Governor of Leyte$ "etitioner #urelio %enzon, a senior member of the Sangguniang "anlala&igan, &as designated by Secretary Luis Santos to act as the ice! Governor for the province of Leyte$ "rovincial #dministrator 'ente (uintero in)uired from the *ndersecretary of the +epartment of Local Government, ,acinto -ubillar, on the legality of the appointment of petitioner to act as ice!Governor$ *ndersecretary -ubillar stated that the appointment of petitioner as the temporary ice! Governor is not necessary since the ice!Governor &ho is temporarily performing the functions of the Governor, could concurrently assume the functions of both offices$ 'he Sangguniang "anlala&igan in a special session issued -esolution .o$ /0/ &here it held invalid the appointment of the petitioner as acting ice!Governor of Leyte$ *ndersecretary -ubillar e1plained his opinion2 3the peculiar situation in the "rovince of Leyte, &here the electoral controversy in the 4ffice of the Governor has not yet been settled, calls for the designation of the Sangguniang %ember to act as vice!governor temporarily$5 'he #cting Governor and the Sangguniang "anlala&igan refused to correct -esolution .o$ /0/ and to pay the petitioner the emoluments attached to the 4ffice of ice! Governor$ 'he petitioner filed before the S6 a petition for certiorari and mandamus and sought the nullification of -esolution .o$ /0/ and payment of his salary for his services as the acting ice!Governor of Leyte$ #delina Larrazabal &as proclaimed the Governor of the province of Leyte$

'he provincial treasurer of Leyte allo&ed the payment to the petitioner of his salary as acting ice!Governor$ Supreme 6ourt dismissed the petition filed by the petitioner$ -espondent "etilla re)uested Governor Larrazabal to direct the petitioner to pay bac7 to the province of Leyte all emoluments and compensation &hich he received &hile acting as the ice!Governor$ 'he petitioner filed a motion for reconsideration and prayed that the Supreme 6ourt uphold his right to receive the salary and emoluments attached to the office of the ice!Governor &hile he &as acting as such$

position during the period it &as vacant$ 'he +epartment Secretary had the discretion to ascertain &hether or not the "rovincial Governor should devote all his time to that particular office$ <$ S6 declared valid the temporary appointment e1tended to the petitioner to act as the ice!Governor$ *nder the circumstances of this case and the silence of the Local Government 6ode, in order to obviate the dilemma resulting from an interregnum created by the vacancy, the "resident, acting through her alter ego, the Secretary of Local Government, may remedy the situation$ 'he e1igencies of public service demanded nothing less than the immediate appointment of an acting ice!Governor$ 6ommon&ealth #ct .o$ />> and -evised #dministrative 6ode of 19>?2 'he "resident is empo&ered to ma7e temporary appointments in certain public offices, in case of any vacancy that may occur$ @n the absence of any contrary provision in the Local Government 6ode and in the best interest of public service, the procedure in the t&o la&s may be similarly applied in the present case$ Section A9, LG62 @n case a permanent vacancy arises &hen a ice!Governor assumes the 4ffice of the Governor, $ $ $ refuses to assume office, fails to )ualify, dies, is removed from office, voluntary resigns or is other&ise permanently incapacitated to discharge the functions of his office the sangguniang panlala&igan $ $ $ member &ho obtained the highest number of votes in the election immediately preceding, $ $ $ shall assume the office for the une1pired term of the ice!Governor$ 'he mode of succession for permanent vacancies may be observed in a temporary vacancy in the same office$ 'here &as a need to fill the vacancy$ 'he petitioner is the member of the Sangguniang "anlala&igan &ith the highest number of votes$ 'he +epartment Secretary acted

Issues: 1) 8hether or not there &as a vacancy9 :;S <) 8hether or not the Secretary of Local Government has the authority to ma7e temporary appointments9 :;S Held: 1$ "etilla=s automatic assumption to the acting Governorship resulted in a vacancy in the office of ice!Governor$ La& on "ublic 4fficers2 'here is no vacancy &hen the office is occupied by a legally )ualified incumbent$ There is a vacancy when there is no person lawfully authorized to assume and exercise the duties of the office$ 'he office of the ice!Governor &as left vacant &hen the elected ice!Governo "etilla &as appointed #cting Governor$ 'he office to &hich he &as elected &as left barren of a legally )ualified person to e1ercise the duties of the office of the ice! Governor$ 'here is no satisfactory sho&ing that "etilla continued to simultaneously e1ercise the duties of the ice!Governor$ 'he nature of the duties of a "rovincial Governor calls for a full!time occupant to discharge them$ %ore so &hen the vacancy is for an e1tended period$ 'he fact that the Secretary of Local Government &as prompted to appoint the petitioner sho&s the need to fill up the

correctly in e1tending the temporary appointment$ 'he 64*-' G-#.'S the motion$ 'he additional compensation &hich the petitioner has received shall be considered as payment for actual services rendered as acting ice! Governor and may be retained by him$