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PEDRO SANTOS TO, petitioner,

vs.
HON. ERNANI CRUZ-PAO, Presiding Judge, Court of First Instance of Rizal, Quezon City
Branch XVIII, and JUAN Y. OCAMPO, respondents.

Dakila F. Castro & Associates for petitioner.

Abundio J. Macaraas for private respondent.

DE CASTRO, J.:

Petitioner was convicted by respondent judge of the Court of First Instance of Rizal (Quezon City
Branch) of the crime of estafa for having issued a bouncing check for P5,000.00, and sentenced to
an indeterminate penalty of from seven years and eight months of prision mayor as minimum, to
nine years and four months of prision mayor, as maximum. 1 He appealed to the Court of Appeals
which reduced the penalty to one year and one day of prision correccional as minimum, to one year and
eight months as maximum. 2

Upon the Court of Appeals' decision becoming final, petitioner not having appealed therefrom, he
filed a petition for probation 3 with respondent judge, who, despite the favorable recommendation of the
Probation Office, denied the petition on July 24, 1980, on the following grounds:

(a) to grant probation to petitioner will depreciate the seriousness of the offense
committed, and

(b) petitioner is not a penitent offender.

A motion for reconsideration filed by petitioner having been denied by the respondent judge, the
present proceeding was resorted to, petitioner averring that the respondent judge erred in denying
his petition for probation despite the recommendation for its approval by the Probation Office.

We find for the petitioner.

At the outset, it might be stated that the Solicitor General whose comment was required by this
Court, recommends the granting of probation. As he points out, petitioner is not among the offenders
enumerated in the probation law (Presidential Decree No. 968) from availing of the benefits of
probation. Under Section 9 of said law, the disqualified offenders are the following:

(a) those sentenced to serve a maximum term of imprisonment of more than six
years;

(b) those convicted of any offense against the security of the State;

(c) those who have previously been convicted by final judgment of an offense
punished by imprisonment of not less than one month and one day and/or a fine of
not less than two hundred pesos;

(d) those who have been once on probation under the provisions of the decree; and
(e) those who were already serving sentence at the time the substantive provisions
of the decree became applicable, pursuant to Section 33.

Under the abovequoted provision, petitioner may not be disqualified from being entitled to the
benefits of probation. Some other provisions have to be sought, if any, upon which to deny petitioner
the benefits of probation which, from a reading of the law in its entirety, should with liberality, rather
than undue strictness, be extended to anyone not listed as disqualified. In expressly enumerating
offenders not qualified to enjoy the benefits of probation, the clear intent is to allow said benefits to
those not included in the enumeration.

If only for the above observation as to how the law should be applied in order that its objective could
be realized and achieved, We cannot but find respondent judge's reasons for his denial of the
petition for probation insufficient to justify a deviation from a policy of liberality with which the law
should be applied.

The first reason given by the judge is that "probation win depreciate the seriousness of the offense
committed." According to him, the State has shown serious concern with the above of checks as a
commercial paper, as shown by various measures taken to curb the pernicious practice of issuing
bouncing checks.

For purpose of probation, what the law gives more importance to is the offender, not the crime. The
inquiry is more on whether probation will help the offender along the lines for which the probation
system has been established, such as giving the first-time offender a second chance to maintain his
place in society through a process of reformation, which is better achieved, at least as to one who
has not committed a very serious offense, when he is not mixed with hardened criminals in an
atmosphere not conducive to soul-searching as within prison walls. The consciousness of the State's
benignity in giving him that second chance to continue in peaceful and cordial association with his
fellowmen will advance, rather than retard, the process of reformation in him.

If, therefore, reformation is what the law is more, if not solely, concerned with, not the prevention by
means of punitive measures, of the commission of the offense, it is readily seen that the respondent
judge has fallen into a wrong obsession. He would, in effect, disqualify all those who commit estafa
through bouncing cheeks from enjoying the benefits of probation. He would thereby add to the
crimes expressly mentioned in the law which are not subject to probation. Thus, the only crimes
mentioned in the law based on the nature thereof are those against national security (Section 9,
paragraph b), the other crimes being those punished by more than six years imprisonment.
Respondent judge would thus be writing into the law a new ground for disqualifying a first-offender
from the benefits of probation, based on the nature of the crime, not on the penalty imposed as is the
main criterion laid down by the law in determining who may be granted probation. That crime would
be estafa only by issuing bouncing check, but not all forms of estafa, which, incidentally, is one
offense the criminal liability for which is generally separated by a thin line from mere civil liability.

For those who would commit the offense a second time or oftener, or commit an offense of manifest
gravity, it is the long prison term which must be served that will act as deterrent to protect society. In
protecting society, the family of the offender which might be dependent or the latter to a greater or
lesser extent for support or other necessities of life should not be lost sight of, it being the basic unit
of that society. By the relative lightness of the offense, as measured by the penalty imposed, more
than by its nature, as the law so ordains, the offender is not such a serious menace to society as to
be wrested away therefrom, as the more dangerous type of criminals should be.
The second reason of respondent judge for denying petition petitioner's bid for probation, is that
petitioner is allegedly not a penitent offender, as shown by his protestation of innocence even after
his conviction by the trial court and the affirmance of his conviction by the Court of Appeals.

We find the respondent judge, likewise, in error in assuming that petitioner has not shown
repentance in committing the crime of which he has been found guilty by both the trial and appellate
courts. If petitioner appealed the decision of the respondent judge to the Court of Appeals, he cannot
be blamed for insisting on his version by which he could hope either to be acquitted or at least given
a lighter penalty that would entitle him to the benefits of probation. The recourse he took has,
1wph1.t

indeed, proved to be well worth the effort. His penalty was reduced on appeal which placed him
within the benign purpose of the Probation Law. By the move he took by which to achieve this
objective, acquittal not quite being within reach, petitioner cannot be said to be a non-penitent
offender, under serving of probation benefits. Once the opportunity was laid open to him, he grasped
it; for instead of appealing further to the Supreme Court, he promptly applied for probation, made
possible only by the reduced penalty imposed by the Court of Appeals. The penalty imposed by
respondent court placed petitioner beyond the pale of the Probation Law. How can he be said to be
a non-penitent offender, as the law would judge one to be so, just because he appealed, as he could
not have them applied for probation even if he wanted to? Who knows but that if the penalty
imposed by the trial court is that imposed by the Court of Appeals petitioner would have applied for
probation forthwith?

Under the circumstances as just pointed out, We find no sufficient justification for respondent judge's
holding petitioner to be a non-penitent offender. We find, instead, that the liberality with which the
Probation Law should be applied in favor of the applicant for its benefits affords the better means of
achieving the purpose of the law, as indicated in Our decision in the case of Balleta Jr. vs. Hon.
Leviste, G.R. No. L-49907, August 21, 1979, 92 SCRA 719, cited by the Solicitor-General who, as
earlier stated, recommends granting of the instant petition for probation.

WHEREFORE, the order of the respondent judge denying probation is set aside, and petitioner is
hereby declared admitted to probation, subject to the terms and conditions as are prescribed by the
law, and recommended by the probation officer.

Today is Thursday, September 17, 2015

Republic of the Philippines


SUPREME COURT
Manila

SECOND DIVISION
both of Caloocan City, and HERMOGENES LIWAG, petitioners,

10, 1972, by the then mayor Marcial F. Samson, of Caloocan City, one of the petitioners herein, whereby petitioner mayor summarily
of the latter Hermogenes Liwag, a co-petitioner in this case. Cited in support of the challenged administrative order is section 5(f) of R
herein petitioner Mayor as to include the position of Assistant Secretary to the Mayor.

to substitute the heirs of private respondent Feliciano C. Talens in place of respondent, in view of the latter's death on August 28, 19

civil service eligible, was appointed on March 16, 1970 by then City Mayor Macario Asistio of Caloocan City, as Assistant Secretary to
tary to the Mayor and even twice received increases in salary.

hed private respondent herein with the questioned Administrative Order No. 3, which is hereunder reproduced:

ivil Service Act of 1959, as amended, making the positions of Secretaries of City Mayors, among others, non-competitive, and it bein
s Assistant Secretary to the Mayor are hereby TERMINATED for lack and loss of confidence.

government records to Atty. Casiano P. Anunciacion, Jr.

vice Law, which specifies as non-competitive only the positions of "secretaries of provincial city and municipal boards and councils."
istant Secretary to the Mayor was not covered by Sec. Service Law, he can be removed only for cause and after due process has be

ministrative Order No. 3, reiterating the reasons set forth in the order. Consequently, a petition for certiorari, prohibition, mandamus an
treasurer and auditor from enforcing the same, and to compel all the said public officials to pay to private respondent the salaries and
mson as Assistant Secretary to the Mayor, in place of private respondent.

Order No. 3 null and void, and granting all the aforestated reliefs claimed by Feliciano C. Talens. On Appeal of the siad judgment to th

ivate respondent Talens' services as assistant secretary to the Mayor of Caloocan City (Petitioners' Brief, p. 4).

) of Republic Act No. 2260, as amended by Republic Act No. 6040 which declares the position of Secretaries of City Mayors as belon
inherently and primarily highly confidential in nature.

petitive service shall be composed of positions expressly declared by law to be in the non-competitive service and those which are po
ncluded in the enumeration are heads of departments created in charters of cities and secretaries of provincial governors, city mayors

ection 5 of Republic Act No. 2260, as amended, to be within the non-competitive service, petitioners, however, argue that an assistan

d, the general purpose of the Civil Service Law (Republic Act No. 2260) is "to insure and promote the consitutional mandate regarding
courteous civil service in the Philippines." (Section 2, R.A. 2260).

the government, including those in government owned or controlled corporations, belong to the competitive service. The only excepti
A. No. 6040).

construed; they extend only so far as their language fairly warrants, and all doubts should be resolved in favor of the general provisio
citing 69 C.J., Section 643, pp. 1092-1093, emphasis supplied).

uding from its effects all those not expressly mentioned (Martin, Statutory Construction, 1979 ed., p. 71 citing Dave's Place vs. Liquor

ictly construed. It follows then that on this general governing principle, the position of assistant secretary to the City Mayor of Calooca

whether such position is policy-detrermining, primarily confidential or higly technical. It is the nature of the position which finally determ
Secretary to the Mayor as may be delegated and assigned by the Mayor that makes the position of Assistant Secretary primarily con
primarily and highly confidential.

ayor are two separate and distinct positions. While both individuals may be called "secretary," nevertheless, one is certainly of a highe
isites attaching to the primarily confidential position of the actual Secretary to the Mayor.

ction 5(f) of R.A. No. 2260, as amended, so that Assistant Secretaries are also embraced in the non-competitive service, the law cou

erm "secretaries as provided for in Section 5(f) in the above-quoted provision. From this premise, the conclusion drawn by petitioners
mains. Petitioners' submission is that the assistant secretary is no less a secretary to the mayor.

tary," although described as secretary, technically differs in function from the "Secretaries." An "assistant" merely helps, aids or serve
e on such person the trust and confidence of the employer, is not automatically vested or transferred to an "assistant secretary," beca

ich have been invoked by the petitioners do not provide support to petitioners' case. The aforestated cases have no parallel to the ca
uio which petitioner De los Santos was then occupying. Said position was in fact declared to be neither primarily confidential, policy-d
d any application to the instant case because the position therein involved was that of Chief Legal Counsel which, by its very nature,
ed in the case at bar are distinctly different from the cases cited by petitioners.

ted:

to suggest the purely, or, at least, mainly clerical nature of their work. The fact that they, at times, handle 'confidential matters' does n
work is, at least, principally confidential.

en to this Court of the death of the herein private respondent Feliciano C. Talens, on August 28, 1982 (Rollo, p. 184), the dispositive p
f Petitioner Feliciano C. Talens, and against the Respondents, and

amson, null and void;

Talens, all the salaries and emoluments appurtenant to and due to the latter as Assistant Secretary to the Mayor of Caloocan City, bu

WILFREDO M. CATU, A.C. No. 5738


Complainant,
Present:

PUNO, C.J., Chairperson,


SANDOVAL-GUTIERREZ,
- v e r s u s - CORONA,
AZCUNA and
LEONARDO-DE CASTRO, JJ.

ATTY. VICENTE G. RELLOSA,


Respondent. Promulgated:
February 19, 2008

x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

RESOLUTION
CORONA, J.:

Complainant Wilfredo M. Catu is a co-owner of a lot[1] and the building erected


thereon located at 959 San Andres Street, Malate, Manila. His mother and brother,
Regina Catu and Antonio Catu, contested the possession of Elizabeth C. Diaz-
Catu[2] and Antonio Pastor[3] of one of the units in the building. The latter ignored
demands for them to vacate the premises. Thus, a complaint was initiated against
them in the Lupong Tagapamayapa of Barangay 723, Zone 79 of the 5 th District of
Manila[4] where the parties reside.

Respondent, as punong barangay of Barangay 723, summoned the parties to


conciliation meetings.[5] When the parties failed to arrive at an amicable settlement,
respondent issued a certification for the filing of the appropriate action in court.

Thereafter, Regina and Antonio filed a complaint for ejectment against Elizabeth
and Pastor in the Metropolitan Trial Court of Manila, Branch 11. Respondent
entered his appearance as counsel for the defendants in that case. Because of this,
complainant filed the instant administrative complaint,[6] claiming that respondent
committed an act of impropriety as a lawyer and as a public officer when he stood
as counsel for the defendants despite the fact that he presided over the conciliation
proceedings between the litigants as punong barangay.

In his defense, respondent claimed that one of his duties as punong barangay was
to hear complaints referred to the barangaysLupong Tagapamayapa. As such, he
heard the complaint of Regina and Antonio against Elizabeth and Pastor. As head
of theLupon, he performed his task with utmost objectivity, without bias or
partiality towards any of the parties. The parties, however, were not able to
amicably settle their dispute and Regina and Antonio filed the ejectment case. It
was then that Elizabeth sought his legal assistance. He acceded to her request. He
handled her case for free because she was financially distressed and he wanted to
prevent the commission of a patent injustice against her.

The complaint was referred to the Integrated Bar of the Philippines (IBP) for
investigation, report and recommendation. As there was no factual issue to thresh
out, the IBPs Commission on Bar Discipline (CBD) required the parties to submit
their respective position papers. After evaluating the contentions of the parties, the
IBP-CBD found sufficient ground to discipline respondent.[7]

According to the IBP-CBD, respondent admitted that, as punong barangay,


he presided over the conciliation proceedings and heard the complaint of Regina
and Antonio against Elizabeth and Pastor. Subsequently, however, he represented
Elizabeth and Pastor in the ejectment case filed against them by Regina and
Antonio. In the course thereof, he prepared and signed pleadings including the
answer with counterclaim, pre-trial brief, position paper and notice of appeal. By
so doing, respondent violated Rule 6.03 of the Code of Professional Responsibility:

Rule 6.03 A lawyer shall not, after leaving government service,


accept engagement or employment in connection with any matter in
which he intervened while in said service.

Furthermore, as an elective official, respondent contravened the prohibition


under Section 7(b)(2) of RA 6713:[8]

SEC. 7. Prohibited Acts and Transactions. In addition to acts and


omissions of public officials and employees now prescribed in the
Constitution and existing laws, the following shall constitute prohibited
acts and transactions of any public official ands employee and are
hereby declared to be unlawful:

xxx xxx xxx

(b) Outside employment and other activities related thereto. Public


officials and employees during their incumbency shall not:

xxx xxx xxx


(2) Engage in the private practice of profession unless
authorized by the Constitution or law, provided that such
practice will not conflict or tend to conflict with their official
functions; xxx (emphasis supplied)
According to the IBP-CBD, respondents violation of this prohibition
constituted a breach of Canon 1 of the Code of Professional Responsibility:

CANON 1. A LAWYER SHALL UPHOLD THE


CONSTITUTION, OBEY THE LAWS OF THE LAND, PROMOTE
RESPECT FOR LAW AND LEGAL PROCESSES. (emphasis
supplied)
For these infractions, the IBP-CBD recommended the respondents
suspension from the practice of law for one month with a stern warning that the
commission of the same or similar act will be dealt with more severely. [9] This was
adopted and approved by the IBP Board of Governors.[10]

We modify the foregoing findings regarding the transgression of respondent


as well as the recommendation on the imposable penalty.

RULE 6.03 OF THE CODE


OF PROFESSIONAL RESPONSIBILITY
APPLIES ONLY TO FORMER
GOVERNMENT LAWYERS

Respondent cannot be found liable for violation of Rule 6.03 of the Code of
Professional Responsibility. As worded, that Rule applies only to a lawyer who
has left government service and in connection with any matter in which he
intervened while in said service. In PCGG v. Sandiganbayan,[11] we ruled that Rule
6.03 prohibits former government lawyers from accepting engagement or
employment in connection with any matter in which [they] had intervened while in
said service.
Respondent was an incumbent punong barangay at the time he committed
the act complained of. Therefore, he was not covered by that provision.

SECTION 90 OF RA 7160, NOT


SECTION 7(B)(2) OF RA 6713,
GOVERNS THE PRACTICE OF
PROFESSION OF ELECTIVE LOCAL
GOVERNMENT OFFICIALS

Section 7(b)(2) of RA 6713 prohibits public officials and employees, during


their incumbency, from engaging in the private practice of their profession unless
authorized by the Constitution or law, provided that such practice will not conflict
or tend to conflict with their official functions. This is the general law which
applies to all public officials and employees.
For elective local government officials, Section 90 of RA 7160[12] governs:
SEC. 90. Practice of Profession. (a) All governors, city and municipal
mayors are prohibited from practicing their profession or engaging in any
occupation other than the exercise of their functions as local chief executives.
(b) Sanggunian members may practice their professions, engage in any
occupation, or teach in schools except during session hours:Provided,
That sanggunian members who are members of the Bar shall not:
(1) Appear as counsel before any court in any civil case wherein a
local government unit or any office, agency, or instrumentality of the
government is the adverse party;
(2) Appear as counsel in any criminal case wherein an officer or
employee of the national or local government is accused of an offense
committed in relation to his office;
(3) Collect any fee for their appearance in administrative
proceedings involving the local government unit of which he is an
official; and
(4) Use property and personnel of the Government except when
the sanggunian member concerned is defending the interest of the
Government.
(c) Doctors of medicine may practice their profession even during official
hours of work only on occasions of emergency:Provided, That the
officials concerned do not derive monetary compensation therefrom.

This is a special provision that applies specifically to the practice of


profession by elective local officials. As a special law with a definite scope (that is,
the practice of profession by elective local officials), it constitutes an exception to
Section 7(b)(2) of RA 6713, the general law on engaging in the private practice of
profession by public officials and employees. Lex specialibus derogat
generalibus.[13]

Under RA 7160, elective local officials of provinces, cities, municipalities


and barangays are the following: the governor, the vice governor and members of
the sangguniang panlalawigan for provinces; the city mayor, the city vice mayor
and the members of the sangguniang panlungsod for cities; the municipal mayor,
the municipal vice mayor and the members of the sangguniang bayanfor
municipalities and the punong barangay, the members of the sangguniang
barangay and the members of the sangguniang kabataan for barangays.

Of these elective local officials, governors, city mayors and municipal


mayors are prohibited from practicing their profession or engaging in any
occupation other than the exercise of their functions as local chief executives. This
is because they are required to render full time service. They should therefore
devote all their time and attention to the performance of their official duties.

On the other hand, members of the sangguniang panlalawigan, sangguniang


panlungsod or sangguniang bayan may practice their professions, engage in any
occupation, or teach in schools except during session hours. In other words, they
may practice their professions, engage in any occupation, or teach in schools
outside their session hours. Unlike governors, city mayors and municipal
mayors, members of the sangguniang panlalawigan, sangguniang
panlungsod or sangguniang bayan are required to hold regular sessions only at
least once a week.[14] Since the law itself grants them the authority to practice their
professions, engage in any occupation or teach in schools outside session hours,
there is no longer any need for them to secure prior permission or authorization
from any other person or office for any of these purposes.

While, as already discussed, certain local elective officials (like governors,


mayors, provincial board members and councilors) are expressly subjected to a
total or partial proscription to practice their profession or engage in any
occupation, no such interdiction is made on the punong barangay and the members
of the sangguniang barangay. Expressio unius est exclusio alterius.[15] Since they
are excluded from any prohibition, the presumption is that they are allowed to
practice their profession. And this stands to reason because they are not mandated
to serve full time. In fact, the sangguniang barangay is supposed to hold regular
sessions only twice a month.[16]

Accordingly, as punong barangay, respondent was not forbidden to practice


his profession. However, he should have procured prior permission or
authorization from the head of his Department, as required by civil service
regulations.

A LAWYER IN GOVERNMENT
SERVICE WHO IS NOT PROHIBITED
TO PRACTICE LAW MUST SECURE
PRIOR AUTHORITY FROM THE HEAD
OF HIS DEPARTMENT
A civil service officer or employee whose responsibilities do not require his time to
be fully at the disposal of the government can engage in the private practice of law
only with the written permission of the head of the department
concerned.[17] Section 12, Rule XVIII of the Revised Civil Service Rules provides:

Sec. 12. No officer or employee shall engage directly in


any private business, vocation, or profession or be connected with any
commercial, credit, agricultural, or industrial undertaking without a
written permission from the head of the Department: Provided, That
this prohibition will be absolute in the case of those officers and
employees whose duties and responsibilities require that their entire
time be at the disposal of the Government; Provided, further, That if an
employee is granted permission to engage in outside activities, time so
devoted outside of office hours should be fixed by the agency to the end
that it will not impair in any way the efficiency of the officer or
employee: And provided, finally, that no permission is necessary in the
case of investments, made by an officer or employee, which do not
involve real or apparent conflict between his private interests and public
duties, or in any way influence him in the discharge of his duties, and
he shall not take part in the management of the enterprise or become an
officer of the board of directors. (emphasis supplied)

As punong barangay, respondent should have therefore obtained the prior


written permission of the Secretary of Interior and Local Government before he
entered his appearance as counsel for Elizabeth and Pastor. This he failed to do.

The failure of respondent to comply with Section 12, Rule XVIII of the Revised
Civil Service Rules constitutes a violation of his oath as a lawyer: to obey the laws.
Lawyers are servants of the law, vires legis, men of the law. Their paramount duty
to society is to obey the law and promote respect for it. To underscore the primacy
and importance of this duty, it is enshrined as the first canon of the Code of
Professional Responsibility.
In acting as counsel for a party without first securing the required written
permission, respondent not only engaged in the unauthorized practice of law but
also violated civil service rules which is a breach of Rule 1.01 of the Code of
Professional Responsibility:
Rule 1.01 A lawyer shall not engage in unlawful, dishonest,
immoral or deceitful conduct. (emphasis supplied)

For not living up to his oath as well as for not complying with the exacting ethical
standards of the legal profession, respondent failed to comply with Canon 7 of the
Code of Professional Responsibility:

CANON 7. A LAWYER SHALL AT ALL TIMES UPHOLD THE


INTEGRITY AND THE DIGNITY OF THE LEGAL
PROFESSION AND SUPPORT THE ACTIVITIES OF THE
INTEGRATED BAR. (emphasis supplied)

Indeed, a lawyer who disobeys the law disrespects it. In so doing, he


disregards legal ethics and disgraces the dignity of the legal profession.

Public confidence in the law and in lawyers may be eroded by the


irresponsible and improper conduct of a member of the bar.[18] Every lawyer should
act and comport himself in a manner that promotes public confidence in the
integrity of the legal profession.[19]

A member of the bar may be disbarred or suspended from his office as an


attorney for violation of the lawyers oath[20]and/or for breach of the ethics of the
legal profession as embodied in the Code of Professional Responsibility.

WHEREFORE, respondent Atty. Vicente G. Rellosa is hereby found GUILTY of


professional misconduct for violating his oath as a lawyer and Canons 1 and 7 and
Rule 1.01 of the Code of Professional Responsibility. He is
therefore SUSPENDED from the practice of law for a period of six months
effective from his receipt of this resolution. He is sternly WARNED that any
repetition of similar acts shall be dealt with more severely.

Respondent is strongly advised to look up and take to heart the meaning of the
word delicadeza.

Let a copy of this resolution be furnished the Office of the Bar Confidant and
entered into the records of respondent Atty. Vicente G. Rellosa. The Office of the
Court Administrator shall furnish copies to all the courts of the land for their
information and guidance.

SO ORDERED.

G.R. No. L-32441 March 29, 1930

DOMINADOR GOMEZ, plaintiff-appellant,


vs.
HONORIO VENTURA, Secretary of the Interior of the Government of the Philippine Islands,
and the
BOARD OF MEDICAL EXAMINERS OF THE PHILIPPINE ISLANDS, defendants-appellees.

Jose Varela Calderon for appellant.


Attorney-General Jaranilla for appellees.

ROMUALDEZ, J.:

In this cause, the plaintiff prays for judgment, as follows:

1. Annulling and setting aside the aforementioned investigation proceedings, and particularly
the decision of the Board of Medical Examiners of the Philippine Islands dated March 30,
1926, forever revoking the plaintiff's license to practice medicine and surgery.

2. Ordering the defendants to restore the plaintiff to his status before the investigation and
the decision of March 30, 1926, that is, as if there had never been an investigation and an
adverse decision.
3. Ordering said defendants to issue in favor of the plaintiff a license for the practice of
medicine and surgery in the Philippine Islands, such as he had prior to the investigation and
adverse decision.

4. Granting the plaintiff any proper legal remedy. (Pages 5 and 6, bill of exemptions.)

The defendants answered with a general denial and prayed that the complaint be dismissed.

After trial the Court of First Instance of Manila dismissed the complaint with costs against the
plaintiff.

Counsel for plaintiff contends that the court below erred:

1. In holding that Assistant Fiscal Alfonso Felix of the City of Manila was authorized to
appear and institute administrative proceedings against Dr. Dominador Gomez before the
Board of Medical Examiners of the Philippines.

2. In not holding that Assistant Fiscal Alfonso Felix, of the City of Manila, had personality nor
power to institute administrative proceedings against Dr. Dominador Gomez before the
Board of Medical Examiners of the Philippines.

3. In admitting in its decision that section 9 of Act No. 2381, known as the Opium Law, is
valid.

4. In not holding that section 9 of Act No. 2381, known as the Opium Law, is unconstitutional,
and therefore null and void.

5. In holding that section 9 Act No. 2381, known as the Opium Law, is in force.

6. In not holding that section 9 Act No. 2381 has been repealed, even on the supposition that
it was valid.

7. In rendering the judgment appealed from.

8. In denying the motion for avoidance, and for a new trial, filed by appellant.

The first two assignments of error relate to the validity of the charges against the plaintiff, preferred
by Assistant Fiscal Alfonso Felix of the City of Manila, who, according to the plaintiff is not authorized
by law to file charges with the Board of Medical Examiners, which therefore acquired no jurisdiction
over the matter.

According to section 780 of Administrative Code, as amended by Act No. 3111, the procedure to be
observed in revoking a certificate of registration is the following:

Proceedings for revocation of a certificate of registration shall be begun by filing a written


charge or charges against the accused. These charges may be preferred by any person or
persons, firm or corporation, or the Board of Medical Examiners itself may direct its executive
officer to prepare said charges. Said charges shall be filed with the executive officer of the
Board of Medical Examiners and a copy thereof, together with written notice of the time and
place when they will be heared and determined, shall be served upon the accused or his
counsel, at least two weeks before the date actually fixed for said hearing. (Sec. 12, Act No.
3111.)

The law does not require that the charges be preferred by a public officer or by any specified person;
it even permits the Board of Medical Examiners itself to require its executive officer to prefer said
charges. From the wording of the law we infer that any person, including a public officer, may prefer
the charges referred to in the above-quoted provision. Wherefore, the fact that the charges were
filed by Assistant Fiscal Alfonso Felix of the City of Manila, does not deprive the Board of Medical
Examiners of jurisdiction to hear said charges and to take the proper action according to law.

The appellant contends in his third and fourth assignments of error that section 9 of Act No. 2381 is
null and void on the ground of unconstitutionality, since said section is foreign to the subject of said
Act, in violation of section 3 of the Jones Law prohibiting the enactment of any bill embracing more
than one subject and providing that the subject be expressed in the title of the bill.

Our opinion is that the matter contained in section 9 of Act No. 2381 is not foreign to the end
pursued in said Act, and that in view in the provision of said section it cannot be maintained that Act
No. 2381 includes more than one subject. The penalty provided in said section for the physician or
dentist who prescribes opium for a patient whose physical condition does not require the use of said
drug, is one of the means employed by the Legislature to attain the purpose of Act No. 2381, which
is, to prohibit unnecessary use of opium; it is one of the details subordinate to the purpose in view.
Such punishment is not the end contemplated in Act No. 2381, but, as we have just said, it is a
means employed to regulate the use of opium.

In passing said Act No. 2381, the Legislature merely exercised the police power expressly granted
by the Act of Congress of March 3, 1905, for the protection of the health, comfort, and general
welfare of the people of the Philippine Islands.

ID.; ID.; POWER OF PHILIPPINE LEGISLATURE TO LEGISLATE UPON THE SUBJECT.


The Philippine Legislature is expressly authorized by the Act of Congress of March 3,
1905, to adopt legislation upon the importation and sale of opium in the Philippine Islands.
The purpose of such legislation was to protect the health, comfort, and general welfare of the
people of the Philippine Islands. Such legislation was an exercise of the police power of the
State. (United States vs. Wayne Shoup, 35 Phil., 56.)

And, as we have stated, the provisions contained in section 9 of Act No. 2381 relative to the
physicians and dentist are simply detailes and means conducive to the ultimate purpose of said Act,
which details and means need not be stated in the title of the Act for the very reason that properly
speaking, they are not foreign matter.

The general purpose of these provisions is accomplished when a law has but one general
object, which is fairly indicated by its title. To require every end and means necessary or
convenient for the accomplishment of this general object to be provided for by a separate act
relating to that alone, would not only be unreasonable, but would actually render legislation
impossible. (Cooley on Constitutional Limitations, pp. 296-297.)

The constitutional requirement is addressed to the subject, not to the details of the act. The
subject must be single; the provisions, to accomplished the object involved in that subject,
may be multifarious. . . . None of the provisions of a statute will be held unconstitutional
when they all relate, directly or indirectly, to the same subject, have natural connection, and
are not foreign to the subject expressed in the title. As very frequently expressed by the
courts, any provisions that are germane to the subject expressed in the title may properly be
included in the act. (I Sutherland on Stat. Const., par. 118.)

In order to hold that section 9 of Act No. 2381 is unconstitutional on the ground alleged by the
plaintiff, the violation of the constitutional provision must be substantial and manifest. It is not so in
the case at bar.

2. To warrant the setting aside of statutes because their subjects are not expressed in the
titles, the violation of the rule must be substantial and plain. (Posadas vs. Menzi, Decision of
the United States Supreme Court, page 388, No. 11, May 15, 1929, United States Supreme
Court Advance Opinions.)

At all events the validity of this Opium Law, Act No. 2381, has already been upheld by this court, not
only in the above cited case, United States vs. Wayne Shoup, supra, but also in the subsequent
case of United States vs.Jao Li Sing (37 Phil., 211).

Passing to the fifth and sixth assignments of error, wherein counsel for appellant contends that even
granting that section 9 of Act No. 2381 is valid, it was repealed by Act No. 2493 and later by section
780 of the Administrative Code, we note, first, that there is no express repeal of section 9 of Act No.
2381. Secondly, it cannot be held that it has been impliedly repealed, for the reason that the
provisions of section 9, Act No. 2381, are neither contrary to, nor incompatible with, the provisions of
section 780 of the Administrative Code, as amended. Upon this point, we approve and adopt the
following statements made by the trial judge:

Counsel contends, in support of the above, that Act No. 2493 being complete, and "covering
the field" by implication repealed all laws relating to the practice of medicine, powers of the
Board of Medical Examiners and allied matters; hence, the said law, expressly providing the
causes for revocation of medical licenses, necessarily excluded all others, even though
embodied in prior enactments.

Act No. 310 provided that the Board of medical Examiners could revoke licenses for
"unprofessional conduct," without defining the term. Act No. 1761 (the Opium Law) provided
that illegaly prescribing opium should be cause for revocation of medical licenses. Clearly,
the Opium Law did not repeal Act No. 310. Act No. 2381 also an Opium Law in its
section 9, repeated the provision as to doctors and dentists. The repetition did not repeal Act
No. 310. Act No. 2493, section 11 (Ad. Code, sec. 780), provided that certificates of
physicians are revocable for "unprofessional conduct," without defining the phrase. In other
words, so far as revocation of licenses is concerned, Act No. 2493 is mere reenactment of
Act No. 310. The reenactment of the said portion of Act No. 310 did not repeal section 9 of
the Opium Law. If said section 9 has been repealed, it must be by Act No. 3111, which
amends Act No. 2493 (Ad. Code, sec. 780), by an addition after the words "unprofessional
conduct" of the following:

"The words "unprofessional conduct, immoral, or dishonorable conduct" as used in


this chapter shall be construed to include the following acts: (1) Procuring, aiding or
abeting a criminal abortion; (2) advertising, either in his own name or in the name of
any other person, firm, association, or corporation, in any written or printed paper, or
document, of medical business in which untruthful or improbable promises are made,
or being employed by, or in the service of any person, firm, association or
corporation so advertising, or advertising in any obscene manner derogatory to good
morals; (3) habitual intemperance or addition to the use of morphine, opium, cocaine
or other drugs having a similar effect; (4) conviction of a crime or misdemeanor
involving dishonorable conduct; and (5) willfully betraying a professional secret."

It cannot be seriously contended that aside from the five examples specified there can be no
other conduct of a physician deemed "unprofessional" conduct theretofore deemed grounds
for revocation licenses. The maxim expressio unius est exclussio alterius should be applied
only as a means of discovering legislative intent and should not be permitted to defeat the
plain indicated purpose of the Legislature. It does not apply when words are mentioned by
way of example, or to remove doubts. (See Cyc., 1122.) If, therefore, there exists,
"unprofessional conduct" not specified in the laws, with more reason does the criminal use of
opium remain a specific cause for revocation of license. (Pages 11, 12 and 13, bill of
exceptions.)

As to the seventh and eighth assignments of error, we find the judgment and appealed from correctly
rendered, and the motion of avoidance and new trial properly denied.

As the Attorney-General correctly observes, the powers vested in the Board of Medical Examiners to
suspend or revoke a physician's certificate of registration and the authority granted the Secretary of
the Interior of confirming or reversing the decision of said board of examiners, partake of a quasi-
judicial character, that is, involve the use of discretion. For this reason, the exercise thereof cannot
be reviewed by mandamus, which is the nature of this cause on its merits.

As in the case of courts and judicial officers, it is a rule of general application


that mandamus will not lie to review or control the acts of executive officers and boards of
state and federal governments in respect of matters as to which they are vested with
discretion. In other words, they cannot be compelled to act or render a decision in any
particular way, and this is so, even though the exercise of this discretion requires the
construction and interpretation of statutes. Where public officials exercise their discretion, it
is said that their conclusions, although disputable, are impregnable to mandamus. (38 C. J.,
659-660.)

That this action is really a mandamus proceeding, appears clearly from the terms of the complaint
filed herein.

Finding no merit in the assignments of error, the judgment appealed from is affirmed, with costs
against the appellant. So ordered.

G.R. No. L-18919 December 29, 1962

ABELARDO JAVELLANA, TOMAS JONCO, RUDICO HABANA, EXEQUIEL GOLEZ, ALFREDO


ANG, and FILIPINAS SOLEDAD, in their capacities as Councilors of the Municipal
Municipality of Buenavista, Province of Iloilo, petitioners appellees,
vs.
SUSANO TAYO, as Mayor of the Municipal Municipality of Buenavista, Iloilo, respondent-
appellant.

Ramon A. Gonzales for petitioners-appellees.


Rico & Tia for respondent-appellant.

BARRERA, J.:
This is a direct appeal taken by respondent Susano Tayo (Mayor of the Municipality of Buenavista,
Iloilo) from the decision of the Court of First Instance of Iloilo (in Civil Case No. 5558, for mandamus)
declaring legal and validity the regular session held by petitioners Abelardo Javellano Tomas Jonco,
Rudico Habana, Exequiel Golez, Alfredo Ang, and Filipinas Soledad, constituting a majority of the
elected councilors of said municipality, and ordering respondent to give due course to the resolutions
and or ordinances passed thereat, and to sign the payrolls corresponding to the session days of
June 1, June 15, July 6, July 20, August 3, August 17, September 7, and September 21, 1960 for
payment of the per diems of petitioner as councilors; to pay said Councilor Golez the sum of
P100.00 as moral damages; and to pay P100.00 as attorney' fees plus costs.

The case was submitted on the following Stipulation of Facts:

That the petitioners are duly elected and qualified a members of the Municipal Council of the
Municipality of Buenavista, Province of Iloilo, Philippines; and that the respondent at the time
the acts hereinbelow complained of took place, was and still is the duly-elected and qualified
Mayor of the Municipality of Buenavista, Province of Iloilo Philippines where he resides and
may be served with summons.

II

On February 8, 1960. the Municipal Council of the Municipality of Buenavista, Iloilo,


unanimously approved Resolution No. 5, Series of 1960, dated February 8, 1960, a copy of
which is hereto attached to form an integral part hereon as Annex 'A', which set the regular
sessions of the Municipality Council of Buenavista on every first and third Wednesday of
every month, and which resolution was duly approved by the respondent, in his capacity as
Mayor of the Municipality of Buenavista.

III

That on June 1, 1960, at the time and place set for the regular session of the Municipal
Council, the Mayor, Vice-Mayor, No. 1 and No. 2 Councilors, and the Secretary were absent.

IV

That the six councilors, who are the petitioners in this case, were present and they
proceeded to elect among themselves a temporary presiding officer and Acting Secretary to
take notes of the proceedings. Having thus elected a temporary presiding officer and a
secretary of the Council, they proceeded to do business.

That on June 15. 1960, at the time and place designated in Resolution No. 5, series of 1960,
dated February 8, 1960 above referred to, the petitioners acting as duly elected and qualified
councilors were present and again, in view of the absence of the Mayor, Vice-Mayor said to
councilor and the Secretary proceeded to elect a temporary presiding officer and temporary
secretary from among them, and did business as a Municipal Council of Buenavista.

VI
That again on July 6, and July 21, 1960, on August 3, and August 17, September 7, and on
September 21, 1960, the petitioners met at the place and time designated in Resolution No.
5, series of 1960, and proceeded to elect a temporary Secretary among themselves, and did
business as the Municipal Council of Buenavista, in view again of the absence of the Mayor
Vice-Mayor, 2 councilors, and the Secretary.

VII

That when the minutes of the proceedings of June 1, June 15. July 6, July 20, August 17,
September 7, and September 21, 1960 of the Municipal Council were presented to the
respondent for action, the respondent Mayor refused to act upon said minutes, or particularly
to approve or disapprove the resolution as approved by the municipal Council, the Mayor
declaring the sessions above referred to as null and void and not in accordance with.

VIII

That the petitioners made repeated demands for payment of their per diems for the of June
1, June 15, July 6, July 20, August 3, August 17, September 7, 1960, by representing the
payrolls; Provincial Forms No. 38(A) to the respondent Mayor for the latter signature, but that
the respondent refused to affix his signature to the payrolls thus presented, covering the per
diems of the petitioner alleging that the proceedings were illegal due to his absence.

IX

That the petitioners, acting through Atty. Bartolome T. Tina, addressed a letter dated August
8, 1960 to the Honorable Provincial Fiscal of the Province of Iloilo, asking of the latter's
opinion on the validity of the acts of the herein petitioners, acting as the Municipal Council in
the absence of the Mayor, Vice-Mayor, said two councilors and the secretary, a copy which
letter is herewith attached as Annex 'B' and made an integral part of this petition.

That on August 9, 1960, the Honorable Provincial Fiscal of the Province of Iloilo in his
indorsement, rendered an opinion upholding the validity of the controverted sessions of the
Municipal Council, a copy, of which communication is, likewise attached herein is Annex 'C'
and made an integral part of this petition.

XI

That despite the opinion of the Provincial Fiscal, the respondent Mayor refused and still
refuses to act upon the resolution petitions presented to him and to sign the payrolls covering
the per diems of the herein petitioners.

XII

That the respondent brought the matter to the attention of the Provincial Board, of the
Province of Iloilo, by means of a letter questioning the legality of the minutes of the regular
possession of the Municipal Council without his presence individual that the Provincial Board
resolved on September 23, 1960 to return the minutes of the regular session of the Municipal
Council of Buenavista, Iloilo, informing the Mayor that per the opinion of the Legal Assistant,
said minutes is legal.
XIII

That despite the resolution of the Provincial Board, the Mayor refused and still refuses to
recognize the validity of the acts of the Municipal Council and the legality of its regular
session held in his absence.

On the basis of the foregoing Stipulation of Facts (plus the testimony of Councilor Exequiel Golez),
the trial court (on July 26, 1961) rendered the decision above adverted to, partly stating:

This Court, after perusal of all the records of this case has reached the conclusion that the
sessions held by the petitioner during the absence of the respondent Mayor were perfectly
valid and legal. The attendance of the Mayor is not essential to the validity of the session as
long as there is quorum constituted in accordance with law. To declare that the proceedings
of the petitioners were null and void, is to encourage recalcitrant public officials who would
frustrate valid session for political end or consideration. Public interest will immensely suffer,
if a mayor who belongs to one political group refuses to call or attend a session, because the
Council is controlled by another political group. In a democrats the minority should respect
the majority and inasmuch as the petitioners constitute the majority political group, it is but
natural that they could validly hold a valid session, in order to devise means for public
interest.

The respondent here as Municipal Mayor should have given good example, by calling and
attending regular session on the dates fixed by the Council. In the discharge of his of official
duty, he should consider the Session Hall of the Municipal Council as the sanctuary and
depository of public interest and public welfare. Any member of the Council should enter the
Session Hall, not as a representative of any political part or group, but as a representative of
the people of the municipality whose interest and welfare should be safeguarded by the
Council. In entering this Hall, he must lay aside his political affiliation, interest, and
consideration, because it is the sworn duty of every councilor to perform his duty with justice
and impartiality. Not to attend a meeting, constitutes an abandonment of the people's
welfare. One may be in the minority group, but he can discharge his duty with honor and
prestige as a fiscalizer, to fiscalize the doings and actuations of the majority. He may be
overwhelmed in his plan or project by superior numerical majority but if he could adduce
good reasons and arguments in favor of the welfare of the people, his task as a fiscalizer is
thereby attained. There is no fear on attending any session because if your project is not
carried out, you may have the remedy, either by administrative or judicial relief, by
questioning and ordinance or resolution passed by the majority, which may be null and void
because they are excessive and unreasonable. So, there is no reason why the respondent in
this case had refused to attend the session of the Council.

Petitioners here claim moral damages pursuant to the provisions of Article 2219, in
connection with Article 21 and Article 27 of the new Civil Code. Said Article 27 provides as
follows:

'Any person suffering material or moral loss because a public servant or employee
refuses or neglects, without just cause, to perform his official duty may file an action
for damages and other relief against the latter, without prejudice to any disciplinary
administrative action that my be taken.' lawphil.net

But in support of the allegations in the petition, only petitioner Exequiel Golez was presented
as a witness who prove moral damages he suffered as a consequence of the refusal the
respondent Susano Tayo to perform his official duty. such, of all the petitioners, only
Exequiel Golez is entitled receive moral damages in the sum of P100.00.

IN VIEW OF THE FOREGOING, the petition for a writ of mandamus is hereby granted, and
the respondent is here ordered to give due course to the resolutions and ordinance passed
by the petitioners in the regular sessions during the absence of the respondent, to give due
course and sign the payrolls covering the periods of June 1, June 15, July 6, July 20, August
3, August 17, September 7, and September 21, 196 for the payment of per diems of the
petitioners as Municipal Councilors; to pay to said Exequiel Golez, the sum of P100.00 as
moral damage, to pay the sum of P100.00 as attorney's fee and to pay the costs of the
proceeding.

SO ORDERED.

Respondent-appellant claims, in this appeal, that the trial court erred in holding that the sessions
held by petitioners-appellees during his absence and during the absence of his Vice-Mayor and the
No. 1 and No. 2 Councilors the Municipal Council of Buenavista, Iloilo were valid an legal.

The claim is untenable. In the first place, there is no question that the sessions at issue were held on
the days set for regular sessions of the council, as authorized an approved in a previous resolution.
Secondly, it is not disputed that a majority of the members of the council (six out of ten) were present
in these sessions. Consequently, pursuant to Section 2221 of the Revised Administrative Code
which provides:

SEC. 2221. Quorum of council Enforcing Attendance of absent members. The majority
of the council elected shall constitute a quorum to do business; ....

there was a quorum to do business in all the sessions in question. The term "quorum" has
been defined as that number of members of the body which, when legally as assembled in
their proper places, will enable the body to transact its proper business, or, in other words,
that number that makes a lawful body and gives it power to pass a law or ordinance or do
any other valid corporate act. (4 McQuillin, Municipal Corporation [3rd Ed 478]; see also
State vs. Wilkesville Tp., 20 Ohio St. 288).

Appellant, however asserts that while under Section 2221 of the Revised Administrative Code, the
majority of the members of the council constitutes a quorum to do business, the council "shall be
presided by the Mayor and no one else", inasmuch as it is one of the duties imposed upon him under
Section 2194(d) of the Revised Administrative Code. 1 The argument would be correct if the mayor
(herein appellant) were present at the sessions in question and was prevented from presiding
therein, but not where, as in the instant case, he absented himself therefrom.

Appellant likewise invokes Section 7 (third paragraph) of Republic Act No. 9264, 2 in support of his
view that the sessions in question were null and void, as they were not presided by him or by his
Vice-Mayor, or by the councilor who obtained the largest number of votes. lawphil.net

It is true that this section mentions only the vice-mayor, or in his place, the councilor who obtained
the largest number of votes who could perform the duties of the mayor, in the event of the latter's
temporary incapacity to do so, except the power to appoint, suspend, or dismiss employees.
Ordinarily, this enumeration would be in interpreted as exclusive, following the general principle
of inclusio unius, est exclusio alterius, but there are cogent reasons to disregard this rule in this
case, since to adopt it would cause inconvenience, hardship, and injury to public interest, as it would
place in the hands of mayor, vice-mayor, and the councilor receiving the highest number of votes an
instrument to defeat the law investing the legislative power in the municipal council, by simply
boycotting, as they continuously did for 4 months, regular sessions of the council. It is to be noted
that same section 7 of Republic Act No. 2264 invoked by appellant provides, in case of permanent
incapacity of mayor, vice-mayor, and the councilor obtaining the largest number of votes, to assume
and perform the duties of mayor, the councilor receiving the next largest number of votes, and so on,
can assume and perform such duties. We see no strong reason why the same procedure should not
be followed in case of temporary incapacity, there being no express prohibition against its
observance. The legal provision being therefore susceptible of two in interpretations, we adopt the
one in consonance with the resumed intention of the legislature to give its enactmentthe most
reasonable and beneficial construction, the that will render them operative and effective and
harmonious with other provisions of law. This is imperative because, as already pointed out
heretofore, under the law "the majority of the council elected shall constitute a quorum to do
business", and this would be defeated if adopt the literal interpretation of appellant that only mayor,
vice-mayor, or the councilor receiving the largest number of votes could preside the council's
meeting, to legal, irrespective of the presence of a quorum or majority of the councilors elected.
Such an interpretation would, indeed, be fraught with dangerous consequences. For it would, in
effect, deprive the municipal council its function, namely, the enactment of ordinances design for the
general welfare of its inhabitants. As the trial court aptly observed, "To declare that the proceedings
of thepetitioners (herein appellees) were null and void, is to encourage recalcitrant public officials
who would frustrate valid sessions for political end or consideration. Public interest will immensely
suffer, if a mayor who belong to one political group refused to call or attend a session because the
council is controlled by another political group."

Lastly, appellant contests the award of moral damage to appellee councilor Exequiel Golez. We find
said award proper under Article 27 of the new Civil Code, 3 considering that according to the trial
court, he (Golez) was able to prove that he suffered the same, as a consequence of appellant's
refusal to perform his official duty, not withstanding the action taken by the Provincial Fiscal an the
Provincial Board upholding the validity of the session in question.

WHEREFORE, the decision appealed from is hereby affirmed with costs against respondent-
appellant. So ordered.

Bengzon, C.J., Padilla, Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L.,Paredes and
Makalintal, JJ. concur.

Dizon and Regala, JJ., took no part.

1"SEC. 2194. Mayor as chief executive of municipality. ... He shall have the following duties:

xxx xxx xxx

"(d) He shall preside at the meetings of the municipal council and shall recommend to said body
from time to time, such measures connected with the public health, cleanliness or ornament of the
municipality or the improvement of its finances as he shall deem expedient."

2 "SEC. 7. The city, municipal, and municipal district vice-mayor and succession to the office of
mayor. ... In the event of temporary incapacity of the mayor to perform the duties of his office on
account of absence on leave, sickness or and temporary incapacity, the vice-mayor shall perform
the duties and exercise the powers of the mayor except the power to appoint suspend or dismiss
employees. In the even the vice-mayor is temporarily incapacitated to perform the duties of the office
of mayor, the councilor who obtained the largest number of votes among the incumbent councilors in
the local elections immediately preceding shall perform the duties and exercise the powers of the
mayor except the power to appoint, suspend or dismiss employees. ..."

3 "Art. 27. Any person suffering material or moral loss because a public servant or employee refuses
or neglects, without just cause, to perform his official duty may file an action for damages and other
relief against the latter, without prejudice to any disciplinary administrative action that may be taken.

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.

G.R. Nos. L-10123 and L-10355 April 26, 1957

GENARO URSAL, as City Assessor of Cebu, petitioner,


vs.
COURT OF TAX APPEALS and CONSUELO NOEL, respondents.

GENARO URSAL, as City Assessor of Cebu, petitioner,


vs.
COURT OF TAX APPEALS and JESUSA SAMSON, respondents.

City Fiscal of Cebu Jose L. Abad for petitioner.


Francisco M. Alonso for respondents.

BENGZON, J.:

In these two cases Genaro Ursal as City Assessor of Cebu challenges the correctness of the order
of the Court of Tax Appeals dismissing his appeals to that body from two rulings of the Cebu Board
of Assessment Appeals.

The record shows that said city assessors in the exercise of his powers assessed for taxation certain
real properties of Consuelo Noel and Jesusa Samson in the City of Cebu, and that upon protest of
the taxpayers, the Cebu Board of Assessment Appeals reduced the assessments. It also shows he
took the matter to the Court of Tax Appeals insisting on his valuation; but said Court refused to
entertain the appeal saying it was late, and, besides, the assessor had no personality to bring the
matter before it under section 11 of Republic Act No. 1125, which reads as follows:

SEC. 11. Who may appeal; effect of appeal. Any person, association or corporation
adversely affected by a decision or ruling of the Collector of Internal Revenue, the Collector
of Customs or any provincial or city Board of Assessment Appeals may file an appeal in the
Court of Tax Appeals within thirty days after the receipt of such decision or ruling.

We share the view that the assessor had no personality to resort to the Court of Tax Appeals. The
rulings of the Board of Assessment Appeals did not "adversely affect" him. At most it was the City of
Cebu1 that had been adversely affected in the sense that it could not thereafter collect higher realty
taxes from the abovementioned property owners. His opinion, it is true had been overruled; but the
overruling inflicted no material damage upon him or his office. And the Court of Tax Appeals was not
created to decide mere conflicts of opinion between administrative officers or agencies. Imagine an
income tax examiner resorting to the Court of Tax Appeals whenever the Collector of Internal
Revenue modifies, or lower his assessment on the return of a tax payer!

Republic Act No. 1125 creating the Court of Tax Appeals did not grant it blanket authority to decide
any and all tax disputes. Defining such special court's jurisdiction, the Act necessarily limited its
authority to those matters enumerated therein. In line with this idea we recently approved said
court's order rejecting an appeal to it by Lopez & Sons from the decision of the Collector of Customs,
because in our opinion its jurisdiction extended only to a review of the decisions of
the Commissioner of Customs, as provided by the statute and not to decisions of the Collector of
Customs. (Lopez & Sons vs. The Court of Tax Appeals, 100 Phil., 850, 53 Off. Gaz., [10] 3065).

The appellant invites attention to the fact that the Court of Appeals is the successor of the former
Central Board of Tax Appeals created by Commonwealth Act No. 530 and of the Board of Tax
Appeals established by Executive Order No. 401-A, and that said Commonwealth Act No. 530
(section 2) explicitly authorized the city assessor to appeal to the Central Board of Tax Appeals.
Here is precisely another argument against his position: as Republic Act No. 1125 failed to reenact
such express permission, it is deemed with held.

Oversight could not have been the clause of such withholding, since there were proper grounds
therefor: (a) discipline and command responsibility in the executive branches; and (b) instead of
being another superior administrative agency as was the former Board of Tax Appeals2 the Court of
Tax Appeals as created by Republic Act No. 1125 is a part of the judicial system presumably to act
only on protests of private persons adversely affected by the tax, custom, or assessment.

There is no merit to the contention that section 2 of Commonwealth Act No. 530 is still in force and
justifies Ursal's appeal. Apart from the reasons already advanced, Republic Act No. 1125 is a
complete law by itself and expressly enumerates the matters which the Court of Tax Appeals may
consider; such enumeration excludes all others by implication. Expressio unius est exclusio alterius.

parts of an original act which act omitted from the act as revised are to be considered as
annulled and repealed, provided it clearly appears to have been the intention of the
legislature to cover the whole subject by the revision. (82 C. J. S. p. 501.)

Inasmuch as we agree to the appellant's lack of personality before the Court of Tax Appeals, we find
it unnecessary to review the question whether or not his appeal had been perfected in due time.

Wherefore, the challenge order is hereby affirmed.

Padilla, Montemayor, Reyes, A., Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L., Endencia
and Felix, JJ.,concur.

G.R. No. L-10690 June 28, 1957

APOLONIO PANGILINAN, ET AL., petitioners,


vs.
FELISA ALVENDIA, respondent.

Emili P. Cortes and Pacifico L. Santiago for petitioners.


Isidro T. Calma for respondent.

REYES, J.B.L., J.:


This is a petition for certiorari to review the decision of the Court of Industrial Relations in Case No.
215 Pampanga (later transferred to the Court of Agrarian Relations which denied reconsideration of
the Industrial Court's decision) authorizing the ejectment of petitioners from their respective
landholdings, and their replacement by other tenants of their landlord's choice.

It appears that petitioners Apolonio Pangilinan, Mariano Bundalian, Miguel Galang, and Valentin
Santos are tenants of respondents Felisa Alvendia in barrios San Nicolas and Sto. Cristo, Florida
Blanca, Pampanga, under tenancy contracts executed on July 17, 1953 (Exhibits A, B, C, and D).
On July 27, 1954, respondent Alvendia filed a petition in the Court of Industrial Relations for the
ejectment of petitioners on the ground that for the agricultural years 1953-54 and 1954-55, they did
not personally perform the principal work of plowing and harrowing on their respective landholdings,
but entrusted said work to other persons, notwithstanding repeated demands by respondent that
they do the farm work themselves. Petitioners in their answer, denied respondent's claims, and
alleged that they were the ones working the land although at times, they were helped by their
children and sons-in-law; and that respondent filed the ejectment action against them because they
refused to sign tenancy contracts with her on the 45-55 sharing basis and insisted on a 70-30
sharing basis.

After trial, the Industrial Court found that petitioners were being helped either by their sons, sons-in-
law, or grandsons, on their landholdings; held that a contract of tenancy is personal in nature and
can not be entrusted to a son, son-in-law or grandson, especially where there is a specific prohibition
in the tenancy contracts against allowing third persons to do the principal phases of farming for the
tenants; and authorized petitioners' ejectment and replacement by other tenants. The case was later
transferred to the Court of Agrarian Relations upon its creation where petitioners filed a motion for
reconsideration of the Industrial Court's judgement, which was denied. Hence, their present appeal.

The lower court found that the "third persons" referred to by respondent Alvendia to whom
petitioners allegedly entrusted the work of plowing and harrowing on their respective landholdings
were either their sons-in-law or grandsons who were not, however, dependent upon them for support
and were living separately from them. The issue, therefore, is whether petitioners violated the law
and their tenancy contracts in entrusting their farm work to such relatives.

Republic Act 1199, which took effect on August 30, 1954, defines "tenant" as:

. . . a person who, himself and with the aid available from within his immediate farm
household, cultivates the land belonging to, or possessed by another, with the latter's
consent, for purpose of production, sharing the produce with the landholder under the share
tenancy system, or paying to the landholder a price certain or ascertainable in produce or in
money or both, under the leasehold tenancy system;

While "immediate farm household," according to the same Act, includes:

. . . the members of the family of the tenant, and such other person or persons, whether
related to the tenant or not, who are dependent upon him for support and who usually help
him operate the farm enterprise.

Under the above definition of "tenant" given by Republic Act 1199, petitioners were within their legal
rights in asking assistance in their farm work from their sons-in-law or grandsons. Such relatives fall
within the phrase "the members of the family of the tenant"; and the law does not require that these
members of the tenant's family be dependent on him for support, such qualification being applicable
only to "such other person or persons, whether related to the tenant or not", whom, as they are
"dependent upon him for support" and usually help him operate the frame enterprise", the law
considers also part of the tenant's immediate household.

But respondent Alvendia claims that as her contracts with petitioners were entered into when Act
4054, the old Tenancy Act, was still in force, the definition of the word "tenant" given in said Act
should be applied in this case, to wit:

. . . a farmer or farm laborer who undertakes to work and cultivate land for another or a
person who furnishes the labor with the consent of the landlord.

Granting that Act 4054 applies to this case, there is, however, nothing in its above definition of
"tenant" to prohibit the farmer who undertakes to work and cultivate the land of another, from doing
such work with the assistance of his family, who are under his control and authority. The above
definition is, in fact, so broad that it even includes the labor of third persons hired by the farmer to
work on his farm, under the clause "or a person who furnishes the labor with the consent of the
landlord". It is the hiring of third persons to do the farm work for the tenant that the new tenancy
Republic Act No. 1199, eliminated from the old concept of "tenant" under Act 4054, thus restricting
the meaning of "tenant" to one "who, himself and with the aid available from within his immediate
farm household, cultivates the land belonging to, or possessed by, another, with the latter's consent .
. ." Whether under the new or the old tenancy law, therefore, the work done by the members of a
tenant's family is, in legal contemplation, included in the work that the tenant undertakes to perform
on the land given to him in tenancy. In the absence of clear and categorical imperatives, we will not
construe statutes in a sense inconsistent with the traditional unity of the Filipino family.

Respondent Alvendia also contends that her tenancy contract with petitioners, Exhibits A, B, C, and
D, expressly prohibit the latter from asking for and accepting help in the cultivation of their
landholdings from their sons-in-law and grandsons, under the provision in said contracts that:

(a) The TENANT is the one to plow, harrow and prepare the land to be planted, and likewise,
he is the one to plant and fence the seedbed. With respect to this work, the LANDLORD
shall not spend for anything, but she has the power to tell or order the TENANT when to
plow, harrow, or what to do pertaining, the tenant's work.

The above provision contains no prohibition for the tenant to accept assistance from the members of
his family in the plowing, harrowing, preparing, planting, or fencing of his landholding. It simply
enumerates the exact duties expected of the tenant by his landlord; and the tenant is referred to as
"the one" to perform these duties, only, to distinguish his obligations from those of his landlord. We
see nothing in farming tasks that requires individual specialized skill. Besides, it is a fact that
petitioners Galang and Santos were already 74 and 64, respectively, when respondent signed the
tenancy contracts with them in 1953. Respondent's having accepted petitioners Galang and Santos
as her tenants in spite of their advanced age not only disproves her claim that they are already too
old to perform their duties as tenants, but proves that she had impliedly agreed that these petitioners
would be helped by their families in their farm work, since respondent must have realized that at
their advanced age, these petitioners could not by themselves alone perform all the farm work
without family assistance.

The decision appealed from is, therefore, reversed, and the ejectment action filed by respondent
against petitioners dismissed, with costs against respondent Felisa Alvendia. So ordered.

G.R. No. L-8782 April 28, 1956


MARCELINO B. FLORENTINO and LOURDES T. ZANDUETA, petitioners-appellants,
vs.
PHILIPPINE NATIONAL BANK, respondent-appellee.

Marcelino B. Florentino for appellants.


Ramon de los Reyes for appellee.

JUGO, J.:

The petitioners and appellants filed with the Court of First Instance of La Union a petition
for mandamus against respondent and appellee, Philippine National Bank, to compel it to accept the
backpay certificate of petitioner Marcelino B. Florentino issued to him by the Republic of the
Philippines, to pay an indebtedness to the Philippine National Bank in the sum of P6,800 secured by
real estate mortgage on certain properties.

The case was submitted on an agreed statement of facts, which reads as follows:

Parties herein represented by counsel, have agreed on the following facts:

1. That the petitioners are indebted to the respondent bank in the amount of P6,800 plus
interest, the same having been incurred on January 2, 1953, which is due on January 2,
1954;.

2. That the said loan is secured by a mortgage of real properties;.

3. That the petitioner Marcelino B. Florentino is a holder of Backpay Acknowledgment No.


1721 dated October 6, 1954, in the amount of P22,896.33 by virtue of Republic Act No. 897
approved on June 20, 1953; and.

4. That on December 27, 1953, petitioners offered to pay their loan with the respondent bank
with their backpay certificate, but the respondent bank, on December 29, 1953, refused to
accept petitioner's offer to pay the said indebtedness with the latter's backpay certificate;

The legal provision involved is section 2 of Republic Act No. 879, which provides:

SEC. 2. Section two of the said Act (Republic Act 304) as amended by Republic Act
Numbered Eight hundred, is further amended to read:

SEC. 2. The Treasurer of the Philippines shall, upon application of all persons specified in
section one hereof and within one year from the approval of this Act, and under such rules
and regulations as may be promulgated by the Secretary of Finance, acknowledge and file
requests for the recognition of the right of the salaries or wages as provided in section one
hereof, and notice of such acknowledgment shall be issued to the applicant which shall state
the total amount of such salaries or wages due the applicant, and certify that it shall be
redeemed by the Government of the Philippines within ten years from the date of their
issuance without interest: Provided, That upon application and subject to such rules and
regulations as may be approved by the Secretary of Finance a certificate of indebtedness
may be issued by the Treasurer of the Philippines covering the whole or a part of the total
salaries or wages the right to which has been duly acknowledged and recognized, provided
that the face value of such certificate of indebtedness shall not exceed the amount that the
applicant may need for the payment of (1) obligations subsisting at the time of the approval
of this amendatory Act for which the applicant may directly be liable to the Government or to
any of its branches or instrumentalities, or the corporations owned or control by the
Government, or to any citizen of the Philippines, or to any association or corporation
organized under the laws of the Philippines, who may be willing to accept the same for such
settlement.

The question raised is whether the clause "who may be willing to accept the same for settlement"
refers to all antecedents "the Government, any of its branches or instrumentalities, the corporations
owned or controlled by the Government, etc.," or only the last antecedent "any citizen of the
Philippines, or any association or corporation organized under the laws of the Philippines.

The contention of the respondent-appellee, Philippine National Bank is that said qualifying clause
refers to all the antecedents, whereas the appellant's contention is that it refers only to the last
antecedent.

Incidentally, it may be stated that one of the purposes of Republic Act No. 879 was to include
veterans of the Philippine Army and their wives or orphans among the beneficiaries of the Backpay
Law, Republic Act No. 304, in recognition of their great sacrifices in the resistance movement. as
shown by the following quotation from the Congressional Record:

. . . This particular bill, House Bill No. 1228, has been filed by this public servant for three
objectives: First, to serve as a source of financial aid to needy veterans, like crippled or
disabled veterans, and to their wives or orphans. Secondly, to give recognition to the
sacrifices of those who joined the last war, and particularly to those who have given their all
for the cause of the last war. And thirdly, to eliminate the discrimination that has been
committed either through oversight, or on purpose, against the members of the Philippine
Army, the Philippine Scouts, and guerrillas or the so-called civilian volunteers, who joined the
resistance movement. (Congressional Record No. 61, 2nd Congress, 4th Regular Session,
May 6, 1953, page 74; quoted in Appellant's brief, pages 13-14.).

Grammatically, the qualifying clause refers only to the last antecedent; that is, "any citizen of the
Philippines or any association or corporation organized under the laws of the Philippines." It should
be noted that there is a comma before the words "or to any citizen, etc.," which separates said
phrase from the preceding ones.

But even disregarding the grammatical construction, as done by the appellee, still there are cogent
and powerful reasons why the qualifying clause should be limited to the last antecedent. In the first
place, to make the acceptance of the backpay certificates obligatory upon any citizen, association, or
corporation, which are not government entities or owned or controlled by the government, would
render section 2 of Republic Act No. 897 unconstitutional, for it would amount to an impairment of
the obligation of contracts by compelling private creditors to accept a sort of promissory note
payable within ten years with interest at a rate very much lower than the current or even the legal
one.

The other reason is found in the Congressional Record, which says:

Mr. TIBLE: On page 4, lines 17, between the words "this" and "act", insert the word
"amendatory".

Mr. ZOSA: What is the purpose of the amendment?.


Mr. TIBLE: The purpose of the amendment is to clarify the provision of section 2. I believe,
gentleman from Cebu, that section 2, as amended in this amendatory bill permits the use of
backpay certificates as payment for obligations and indebtedness in favor of the government.
(Congressional Record No. 64, 2nd Congress, 4th Regular Session May 11, 1953 page 41;
quoted in Appellants brief, p. 15.).

As there would have been no need to permit by law the use of backpay certificates in payment of
debts to private persons, if they are willing to accept them, the permission necessarily refers to the
Government of the Philippines, its agencies or other instrumentalities, etc.

Another reason is that it is matter of general knowledge that many officials and employees of the
Philippine Government, who had served during the Japanese Occupation, have already received
their backpay certificates and used them for the payment of the obligations to the Government and
its entities for debts incurred before the approval of Republic Act No. 304.

The case of Diokno vs. Rehabilitation Finance Corporation, 91 Phil., 608 (July 11, 1952), is different
from the present one. In the Diokno case, his debt to the Rehabilitation Finance Corporation was
incurred on January 27, 1950. He brought the action on November 10, 1950, under the provisions of
Republic Act No. 304 (section 2), which was approved on June 18, 1948; that is, one year and
almost eight months before Diokno could not avail himself of the provisions of section 2 of Act No.
304, because said section provides that the application for recognition of backpay must have been
filed within one year after the approval of said Act No. 304, and the debt must be subsisting at the
time of said approval, Diokno having incurred the debt on January 27, 1950, and brought action on
November 10, 1950. It was, therefore, discretionary in the Diokno case for the Rehabilitation Finance
Corporation to accept or not his backpay certificate in payment.

The Secretary of Justice, in his Opinion No. 226, series of 1948, held that the phrase "who may be
willing to accept the same for such settlement" qualifies only its immediate antecedent and does not
apply to the Government or its agencies.

The appellee asserts in his brief that the Secretary of Justice, in his letter of June 19, 1953,
remarked that the clause "who may be willing to accept such settlement" refers to all antecedents,
including the Government and its agencies. We are not impressed with this observation of the
Secretary, for we believe that his Opinion No. 226, series of 1948, correct for the reasons we have
stated above.

In the present case, Marcelino B. Florentino incurred his debt to the Philippine National Bank on
January 2, 1953; hence, the obligation was subsisting when the Amendatory Act No. 897 was
approved. Consequently, the present case falls squarely under the provisions of section 2 of
the Amendatory Act No. 897.

In view of the foregoing, the decision appealed from is reversed, and the appellee is ordered to
accept the backpay certificate above mentioned of the appellant, Marcelino B. Florentino, in payment
of his above cited debt to the appellee, without interest from December 27, 1953, the date when he
offered said backpay certificate in payment. Without pronouncement as to costs. It is ordered.

G.R. No. 78585 July 5, 1989

JOSE ANTONIO MAPA, petitioner,


vs.
HON. JOKER ARROYO, in his Capacity as Executive Secretary, and LABRADOR
DEVELOPMENT CORPORATION, respondents.
Francisco T. Mamaug for petitioner.

Emiliano S. Samson for private respondent.

REGALADO, J.:

We are called upon once again, in this special civil action for certiorari, for a pronouncement as to
whether or not there has been grave abuse of discretion amounting to lack or excess of jurisdiction
on the part of the executive branch of Government, particularly in the adjudication of a controversy
originally commenced in one of its regulatory agencies.

Petitioner herein seeks the reversal of the decision of the Office of the President, rendered by the
Deputy Executive Secretary on April 24,1987, 1 which dismissed his appeal from the resolution of the
Commission Proper, Human Settlements Regulatory Commission (HSRC, for short), promulgated on
January 10, 1986 and affirming the decision of July 3, 1985 of the Office of Adjudication and Legal Affairs
(OAALA, for brevity) of HSRC. Petitioner avers that public respondent "gravely transcended the sphere of
his discretion" in finding that Presidential Decree No. 957 is inapplicable to the contracts to sell involved in
this case and in consequently dismissing the same. 2

The established facts on which the assailed decision is based are set out therein as follows:

Records disclose that, on September 18, 1975, appellant Jose Antonio Mapa and
appellee Labrador Development Corporation (Labrador, for short), owner/developer
of the Barangay Hills Subdivision in Antipolo, Rizal, entered into two contracts to sell
over lots 12 and 13 of said subdivision. On different months in 1976, they again
entered into two similar contracts involving lots 15 and 16 in the same subdivision.
Under said contracts, Mapa undertook to make a total monthly installment of
P2,137.54 over a period of ten (10) years. Mapa, however, defaulted in the payment
thereof starting December 1976, prompting Labrador to send to the former a demand
letter, dated May 5, 1977, giving him until May 18, 1977, within which to settle his
unpaid installments for the 4 lots amounting to P15,411.66, with a warning that non-
payment thereof will result in the cancellation of the four (4) contracts. Despite
receipt of said letter on May 6,1977, Mapa failed to take any action thereon. Labrador
subsequently wrote Mapa another letter, dated June 15, 1982, which the latter
received on June 21, 1982, reminding him of his total arrears amounting to
P180,065.27 and demanding payment within 5 days from receipt thereof, but which
letter Mapa likewise ignored. Thus, on August 16, 1982, Labrador sent Mapa a
notarial cancellation of the four (4) contracts to sell, which Mapa received on August
20, 1982. On September 10, 1982, however, Mapa's counsel sent Labrador a letter
calling Labrador's attention to, and demanding its compliance with, Clause 20 of the
four (4) contracts to sell which relates to Labrador's obligation to provide, among
others, lighting/water facilities to subdivision lot buyers.

On September 10, 1982, Labrador issued a certification holding the implementation


of the letter dated August 16, 1982 (re notarial cancellation) pending the complete
development of road lot cul de sac within the properties of Mapa at Barangay Hills
Subdivision.' Thereafter on October 25,1982, Labrador sent Mapa a letter informing
him 'that the construction of road, sidewalk, curbs and gutters adjacent to Block 11
Barangay Hills Subdivision are already completed' and further requesting Mapa to
'come to our office within five (5) days upon receipt of this letter to settle your
account.'

On December 10, 1982, Mapa tendered payment by means of a check in the amount
of P 2,137.54, but Labrador refused to accept payment for the reason that it was
agreed 'that after the development of the cul de sac, he (complainant) will pay in full
the total amount due,' which Labrador computed at P 260,138.61. On December 14,
1982, Mapa wrote Labrador claiming that 'you have not complied with the
requirements for water and light facilities in lots 12, 13, 15 & 16 Block 2 of Barangay
Hills Subdivision.' The following day, Mapa filed a complaint against Labrador for the
latter's neglect to put 1) a water system that meets the minimum standard as
specified by HSRC, and 2) electrical power supply. By way of relief, Mapa requested
the HSRC to direct Labrador to provide the facilities aforementioned, and to issue a
cease and desist order enjoining Labrador from cancelling the contracts to sell.

After due hearing/investigation, which included an on-site inspection of the


subdivision, OAALA, issued its decision of July 3, 1985, dismissing the complaint and
declaring that after the lapse of 5 years from complainant's default respondent had
every right to rescind the contract pursuant to Clause 7 thereof. . .

Per its resolution of January 10, 1986, the Commission Proper, HSRC, affirmed the
aforesaid OAALA decision. 3

It was petitioner's adamant submission in the administrative proceedings that the provisions of
Presidential Decree No. 957 4 and implementing rules form part of the contracts to sell executed by him
and respondent corporation, hence the obligations imposed therein had to be complied with by Labrador
within the period provided. Since, according to petitioner, Labrador failed to perform the aforementioned
obligations, it is precluded from rescinding the subject contracts to sell since petitioner consequently did
not incur in delay on his part.

Such intransigent position of petitioner has not changed in the petition at bar and unyielding reliance
is placed on the provisions of Presidential Decree No. 957 and its implementing rules. The specific
provisions of the Decree which are persistently relied upon read:

SEC. 20. Time of Completion. Every owner or developer shall construct and
provide the facilities, improvements, infrastructures and other forms of development,
including water supply and lighting facilities, which are offered and indicated in the
approved subdivision or condominium plans, brochures, prospectus, printed matters
letters or in any form of advertisements, within one year from the date of the
issuance of the license for the subdivision or condominium project or such other
period of time as may be fixed by the Authority.

SEC. 21. Sales Prior to Decree. In cases of subdivision lots or condominium units
sold or disposed of prior to the effectivity of this Decree, it shall be incumbent upon
the owner or developer of the subdivision or condominium project to complete
compliance with his or its obligations as provided in the preceding section within two
years from the date of this Decree unless otherwise extended by the Authority or
unless an adequate performance bond is filed in accordance with Section 6 hereof.

Failure of the owner or developer to comply with the obligations under this and the
preceding provisions shall constitute a violation punishable under Sections 38 and 39
of this Decree.
Rule V of the implementing rules, on the other hand, requires two (2) sources of electric power, two
(2) deep-well and pump sets with a specified capacity and two standard fire hose flows with a
capacity of 175 gallons per minute. 5

The provision, in said contracts to sell which, according to petitioner, includes and incorporates the
aforequoted statutory provisions, is Clause 20 of said contracts which provides:

Clause 20. SUBDIVISION DEVELOPMENT To insure the physical development


of the subdivision, the SELLER hereby obliges itself to provide the individual lot
buyer with the following:

a) PAVED ROADS

b) UNDERGROUND DRAINAGE

c) CONCRETE CURBS AND GUTTERS

d) WATER SYSTEM

e) PARK AND OPEN SPACE

These improvements shall apply only to the portions of the subdivision which are for
sale or have been sold. All improvements except those requiring the services of a
public utility company or the government shall be completed within a period of three
(3) years from date of this contract. Failure by the SELLER to reasonably comply
with the above schedule shall permit the BUYER/ S to suspend his monthly
installments without any penalties or interest charges until such time that these
improvements shall have been made as scheduled. 6

As recently reiterated, it is jurisprudentially settled that absent a clear, manifest and grave abuse of
discretion amounting to want of jurisdiction, the findings of the administrative agency on matters
falling within its competence will not be disturbed by the courts. 7 Specifically with respect to factual
findings, they are accorded respect, if not finality, because of the special knowledge and expertise gained
by these tribunals from handling the specific matters falling under their jurisdiction. Such factual findings
may be disregarded only if they "are not supported by evidence; where the findings are vitiated by fraud,
imposition or collusion; where the procedure which led to the factual findings is irregular; when palpable
errors are committed; or when grave abuse of discretion, arbitrariness or capriciousness is manifest." 8

A careful scrutiny of the records of the instant case reveals that the circumstances thereof do not fag
under the aforesaid excepted cases, with the findings duly supported by the evidence.

Petitioner's insistence on the applicability of Presidential Decree No. 957 must be rejected. Said
decree was issued on July 12, 1976 long after the execution of the contracts involved. Obviously and
necessarily, what subsequently were statutorily provided therein as obligations of the owner or
developer could not have been intended by the parties to be a part of their contracts. No intention to
give restrospective application to the provisions of said decree can be gathered from the language
thereof. Section 20, in relation to Section 21, of the decree merely requires the owner or developer
to construct the facilities, improvements, infrastructures and other forms of development but only
such as are offered and indicated in the approved subdivision or condominium plans, brochures,
prospectus, printed matters, letters or in any form of advertisements. Other than what are provided in
Clause 20 of the contract, no further written commitment was made by the developer in this respect.
To read into the contract the matters desired by petitioner would have the law impose additional
obligations on the parties to a contract executed before that very law existed or was contemplated.

We further reject petitioner's strained and tenuous application of the so-called doctrine of last
antecedent in the interpretation of Section 20 and, correlatively, of Section 21. He would thereby
have the enumeration of "facilities, improvements, infrastructures and other forms of development"
interpreted to mean that the demonstrative phrase "which are offered and indicated in the approved
subdivision plans, etc." refer only to "other forms of development" and not to "facilities,
improvements and infrastructures." While this subserves his purpose, such bifurcation whereby the
supposed adjectival phrase is set apart from the antecedent words, is illogical and erroneous. The
complete and applicable rule is ad proximum antecedens fiat relatio nisi impediatur
sentencia. 9Relative words refer to the nearest antecedent, unless it be prevented by the context. In the
present case, the employment of the word "and" between "facilities, improvements, infrastructures" and
"other forms of development," far from supporting petitioner's theory, enervates it instead since it is basic
in legal hermeneutics that "and" is not meant to separate words but is a conjunction used to denote a
joinder or union.

Thus, if ever there is any valid ground to suspend the monthly installments due from petitioner, it
would only be based on non-performance of the obligations provided in Clause 20 of the contract,
particularly the alleged non-construction of the cul-de-sac. But, even this is unavailing and is
obviously being used only to justify petitioner's default. The on-site inspection of the subdivision
conducted by the OAALA and its subsequent report reveal that Labrador substantially complied with
its obligation. 10

Furthermore, the initial non-construction of the cul-de-sac, as private respondent Labrador


explained, was because petitioner Mapa requested the suspension of its construction since his
intention was to purchase the adjoining lots and thereafter enclose the same. 11 If these were not true,
petitioner would have invoked that supposed default in the first instance. As the OAALA noted, petitioner
"stopped payments of his monthly obligations as early as December, 1976, which is a mere five months
after the effectivity of P.D. No. 957 or about a year after the execution of the contracts. This means that
respondent still has 1 and 1/2 years to comply with its legal obligation to develop the subdivision under
said P.D. and two years to do so under the agreement, hence, it was improper for complainant to have
suspended payments in December, 1976 on the ground of non-development since the period allowed for
respondent's obligation to undertake such development has not yet expired." 12

ON THE FOREGOING CONSIDERATIONS, the petition should be, as it is hereby DISMISSED.

SO ORDERED.

G.R. Nos. L-22160 & L-22161 January 21, 1974

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,


vs.
TEODORO TAMANI, accused-appellant.

Office of the Solicitor General Antonio P. Barredo, Assistant Solicitor General Felicisimo R. Rosete
and Solicitor Norberto P. Eduardo for plaintiff-appellee.

Constancio S. Vitug for accused-appellant.


AQUINO, J.: 1wph1.t

This is an appeal of defendant Teodoro Tamani y Marinay from the decision of the Court of
First Instance of Isabela, (a) sentencing him to "life imprisonment" for the murder of Jose
Siyang and ordering him to indemnify the victim's heirs in the sum of P6,000 and (b) further
sentencing him to an indeterminate penalty of two (2) years, four (4) months and one (1) day
of prision correccional to eight (8) years and twenty-one (21) days of prision mayor for the
attempted murder of Eduardo Domingo and ordering him to indemnify the victim in the sum
of P2,000 (Crim. Cases Nos. II-192 and II-198).

Issue as to dismissal of the appeal.After the appellant had filed his brief, the Solicitor
General filed a motion to dismiss the appeal on the ground that the notice of appeal was
forty-seven days late. Appellant's counsel de oficio did not oppose the motion. Action
thereon was "deferred until this case is considered on the merits". (Resolution of March 7,
1967). The motion to dismiss is reiterated in appellee's brief. That preliminary question
should first be resolved.

The lower court's decision convicting defendant Tamani was promulgated on February 14,
1963. A copy thereof was served on his counsel on February 25, 1963. On March 1, 1963 he
filed a motion for reconsideration. It was denied. A copy of the order of denial was served by
registered mail on July 13, 1963 on defendant's counsel through his wife. He had eleven days
or up to July 24, 1963 within which to appeal (if the reglementary fifteen-day period for appeal
should be computed from the date of notification and not from the date of promulgation of
the decision). He filed his notice of appeal only on September 10, 1963 or forty eight days
from July 24th.

Silvestre B. Bello, defendant's counsel, filed a sworn statement, accompanying the notice of
appeal. In that affidavit, he stated that the trial court's order, denying his motion for
reconsideration, although admittedly received by his wife on July 13th, was never brought to
his attention and that he came to know of the order only on September 7th when he verified
the expediente of the case and discovered that an order of denial had been issued. He
averred that his wife must have lost the envelope containing the order.

The trial court opined that the wife's affidavit should have been submitted and that the
defendant should have filed a motion praying that the tardy appeal be given due course.

After considering the gravity of the two penalties imposed on the accused and the earnest
plea of defense counsel, the trial court gave due course to the appeal without prejudice to the
right of the Solicitor General to "raise the question of jurisdiction on the ground of a very
much belated appeal".

Rule 122 of the Rules of Court provides:

SEC. 6. When appeal to be taken.An appeal must be taken within fifteen (15)
days from promulgation or notice of the judgment or order appealed from. This
period for perfecting an appeal shall be interrupted from the time a motion for
new trial is filed until notice of the order overruling the motion shall have been
served upon the defendant or his attorney.

The word "must" in section 6 is synonymous with "ought". It connotes compulsion or


mandatoriness. The clear terms of section 6 leave no room for doubt that the appeal should
be effected within fifteen days from the promulgation of the judgment.
The counsel for appellant Tamani must have so understood that import of section 6 (which is
confirmed by the practice in trial courts) as evinced by the fact that his motion for
reconsideration was filed on March 1st, which was the fifteenth or last day of the
reglementary period.

The assumption that the fifteen-day period should be counted from February 25, 1963, when a
copy of the decision was allegedly served on appellant's counsel by registered mail, is not
well-taken. The word "promulgation" in section 6 should be construed as referring to
"judgment" (see section 6 of Rule 120), while the word "notice" should be construed as
referring to "order". That construction is sanctioned by the rule of reddendo singula singulis:
"referring each to each; referring each phrase or expression to its appropriate object", or "let
each be put in its proper place, that is, the words should be taken distributively" (76 C. J. S.
175).

Therefore, when the order denying appellant's motion for reconsideration was served by
registered mail on July 13th on appellant's counsel, he had only one (1) day within which to
file his notice of appeal and not eleven days. That construction is an application by analogy
or in a suppletory character of the rule governing appeals in civil cases which is embodied in
section 3, Rule 41 of the Rules of Court.

Appellant Tamani's notice of appeal, filed on September 10, 1963, was fifty-eight days late. A
regoristic application of section 6 justifies the dismissal of his appeal, as prayed for by the
prosecution.

However, considering that appellants right to seek a review of his case was lost by reason of
his counsel's inadvertence and considering further that the briefs have been submitted, the
Court has resolved to review the record to obviate any possible miscarriage of justice
(Cf. Marbury vs. Madison, 1 Cranch 135, 2 L. ed. 60, where Chief Justice Marshall discussed
the merits of a mandamus action although the Court held that it had no power to issue that
writ).

Uncontroverted facts.There is no dispute that sometime after twilight on the night of June
11, 1953 in the place called Centro at the commercial street of Angadanan, Isabela, Jose
Siyang (Syang), the town assistant sanitary inspector, was mortally wounded by gunfire.
Death resulted from internal hemorrhage caused by the following four (4) through and
through gunshot wounds which followed an oblique direction from the point of entry to exit:

1. Entry, chest about 2- inches from level of the nipple. Exit, at the back level
of twelfth dorsal vertebrae to the right side.

2. Entry, above right clavicle (suprasternal notch) middle portion. Exit, at the
back at the level of the right angle of scapula.

3. Entry, anterior aspect of left shoulder. Exit, at the back of shoulder about 2-
inches from tip of armpit (left side).

4. Entry, anterior aspect of right forearm middle in slight oblique direction from
the point of entry to exit. (Exh. F. Certificate issued by Pablo H. Gaffud, M.D.).

By means of the same gunfire, an attempt was made to kill Mayor Eduardo Domingo. He
sustained a through and through wound in the palm of his right hand which caused his
confinement in the Isabela Provincial Hospital from June 11 to 22, 1953 (Exh. E, Certificate
issued by J. L. Maddela, Sr., Resident Physician).

More than three years from the time that tragedy transpired, or on October 2 and 3, 1956,
appellant Tamani signed and thumbmarked two sworn statements before the agents of the
National Bureau of Investigation (NBI), wherein he confessed that he was the one who shot
Siyang and Mayor Domingo; that his companion on the occasion of the shooting was
Domingo Cadawan; that on the morning of June 11, 1953 he and Cadawan were dismissed as
policemen and that Vice-Mayor Villamor Tamani, Matias de la Fuente and Rufino de los
Santos instigated him to liquidate Mayor Domingo (Exh. A and B). The two statements are in
English, a language which Tamani understands (19 tsn II Valencia).

Inasmuch as the crimes, murder and attempted murder, have been proven, meaning that
the corpus delicti had been established, and appellant Tamani had confessed having
committed the same, there should be an airtight case against him. Rule 133 of the Rules of
Court provides:

SEC. 3. Extrajudicial confession, not sufficient ground for conviction.An


extrajudicial confession made by an accused, shall not be sufficient ground for
conviction, unless corroborated by evidence of corpus delicti. (Same as See.
96, Rule 123, 1940 Rules of Court).

Tamani's confession is corroborated by the undisputed evidence of the corpus delicti.

However, during the trial, he repudiated his confession. He assailed its voluntariness. He set
up the defense of alibi. Through his principal witness, Francisco Siyang, the father of the
deceased Jose Siyang, he endeavored to prove that the latter was shot by Policemen Gaspar
Ibarra and Melchor Tumaneng. Thus, a simple case, where the extrajudicial confession is
corroborated by evidence of thecorpus delicti, became controversial, complicated and
perplexing.

Version of the prosecution.In addition to Tamani's extrajudicial confession (Exh. A and B),
the prosecution offered the testimonies of complainant Domingo, Doctor Pablo H. Gaffud,
Juana Vittori Vda. de Ibarra, Emiteria Ibarra, Ilustre D. Mendoza, Mariano G. Almeda, Teodoro
Colobong and Martin Caniero.

The prosecution's evidence discloses that Domingo was the mayor of Angadanan since 1947.
Prior to June 11, 1953, he was suspended from office by the Governor. During Domingo's
suspension, Villamor Tamani, the vice-mayor, functioned as acting mayor. He appointed as
policeman his second cousin, appellant Teodoro Tamani who was then twenty-four years old.
The vice-mayor used to appoint Teodoro Tamani as policeman whenever Domingo was
suspended. Teodoro Tamani resigned as policeman shortly before June 11th. In the
afternoon of June 10th, Domingo was reinstated and he reassumed the office of mayor.

The reinstatement of Domingo was obviously resented by Vice-Mayor Villamor Tamani


because it meant the termination of his tenure as acting mayor. On June 10th Teodoro
Tamani and Domingo Cadawan (also a former policeman like Teodoro Tamani) were
summoned for a conference by the vice-mayor to his house at Barrio Aniog, Angadanan.
Present at the conference were the vice-mayor and his men, Matias de la Fuente and Rufino
de los Santos. It was decided at that meeting that Mayor Domingo should be liquidated. De la
Fuente handed to Teodoro Tamani a carbine.
Appellant Tamani and Cadawan spent the night in the vice-mayor's house. On the following
morning of June 11th, Cadawan was sent on a mission to the poblacion of Angadanan to
ascertain the whereabouts of the quarry, Mayor Domingo. At around seven o'clock in the
evening, Cadawan returned to the vice-mayor's house and apprised appellant Tamani that
Domingo was in front of the store of Pedro Pua at the town's commercial street.

Cadawan and Teodoro Tamani proceeded with dispatch to the poblacion, making shortcuts
by passing through the yards of neighboring houses. Tamani carried the carbine. On entering
the yard of the house adjoining Pedro Pua's store, Cadawan stumbled. The resulting noise
attracted the attention of the owner of the house, Mrs. Ibarra, who focused a flashlight at
Tamani and, on recognizing him, uttered his nickname, Doro. She had known Doro since
childhood. She saw that he was carrying a gun.

She had just taken her supper. She and her daughter, Emiteria Ibarra, were sitting on the
veranda. It was while chewing her buyo that Mrs. Ibarra heard somebody trip in her yard on
the cement floor intended as the base of a tank. Almost simultaneously, she heard the
grunting (ngik-ngik) of her pig. When she trained her flashlight on the intruder and
recognized Doro (appellant Tamani) with a gun and called him, the latter answered, "Tia"
(Aunt).

Mrs. Ibarra saw that Teodoro Tamani passed under the eaves of her house, crossed the
bamboo fence separating her from the vacant lot of Pedro Pua and proceeded to the corner
of the vacant lot near the gate of galvanized iron sheets and the edge of the cemented
pavement which was in front of Pedro Pua's store (see sketch, Exh. C). As appellant Tamani
passed the fence, he produced a "cracking noise". Emiteria Ibarra testified:

Q. Who say (saw) Teodoro Tamani? A. My mother and myself,


sir.

Q. What was the appearance of Teodoro Tamani when you saw


him after your mother lighted him with the light of the flashlight?
A. When my mother flashed the flashlight towards him at the
same time my mother called, "Doro" and then he answered "TIA"
and he was carrying a firearm, sir.

Q. Why do you know that when you and your mother heard the
cracking of the fence Teodoro Tamani went inside the fence?
A. We know it because of the cracking of the fence, besides that
we saw him proceeded towards the fence, sir.

Q. After Teodoro Tamani entered that fence as you say, what


happened, if any? A. He proceeded towards the gate of the
Chinese, sir.

Q. What happened, if any, after Teodoro Tamani went to that


gate? A. Upon arriving at the gate we heard the gun reports,
sir.

Q. How many gun reports, if you remember? A. Maybe eight


(8) or nine (9), sir.
Q. Do you know where the gun reports came from? A. Yes,
sir, because I saw the sparks of the bullets when they were fired,
sir.

Q. Did you know who fired? A. I know, sir.

Q. Who? A. Teodoro Tamani, because he was the only one


who entered with a gun, sir (74-75 tsn Jan. 16, 1959).

Q. Who fired? A. Teodoro Tamani, sir.

Q. Why do you say that he was the one who fired? A. Because
the gun reports came from the place where he stood at the gate,
sir (77 tsn Jan. 16, 1959).

From the place where Cadawan and Tamani had positioned themselves, they had a good
view, through the holes of the gate, of Mayor Domingo and his group in front of Pua's store
(Exh. A). The mayor was engaged in conversation with a group of persons on the cemented
pavement ( pasillo of sidewalk) in the front of the store in Centro at the town's commercial
street. Standing near the wall of the store were Hermoso Alicam, Liberato Tanam, Primitivo
Tallog, Martin Caniero, Toedoro Colobong, Gaspar Ibarra, Francisco Siyang and Gonzalo
Siyang. Mayor Domingo was standing in front of the group, walking and gesticulating as he
talked. Jose Siyang was leaning against a post somewhat apart from the group (Exh. C, 6 tsn
March 3, 1959).

Mayor Domingo was recounting his experience in Manila during his suspension. He was
standing on the culvert which bridged the canal separating the pasillo and the street (See
Exh. C). As he talked, he gestured and swung his hands up and down with palms open,
facing Pua's store and his audience. Jose Siyang, who was apart from the group of listeners,
was about two to three meters on Mayor Domingo's right, leaning one of the post which
supported the roof shading the pasillo or cemented pavement. Jose Siyang was in line with
Mayor Domingo while, in contrast, the group of listeners was standing side by side close to
the galvanized iron wall of the store, facing Mayor Domingo who was telling stories.

In the meanwhile, Teodoro Tamani and Cadawan were standing on the vacant lot in close
proximity to the gate of galvanized iron sheets where the pasillo ended. Cadawan opened a
hole in the gate, about three inches in diameter, through which Teodoro Tamani inserted the
barrel of the carbine. Tamani fired at Mayor Domingo who was the target. Jose Siyang, a
second cousin of Teodoro Tamani, like Vice-Mayor Tamani, "was farther on the right side of
Mayor Domingo along the line of fire" (Exh. A). Appellant Tamani fired two volleys. Mrs. Ibarra
and her daughter saw from the veranda the flashes of fire emitted by the carbine of Teodoro
Tamani. They left the veranda and went inside the house.
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At the moment the first volley of gunshots was fired, which was between seven and seven-
thirty, Mayor Domingo had raised his right hand. The palm of his right hand was hit. Jose
Siyang was also hit. Domingo and his listeners dispersed and sought refuge inside Pua's
store. While Domingo ran for cover, a second volley was fired. The volley's came from behind
the iron gate on the vacant lot or "from the southwest end" of the cemented pavement behind
the gate. While inside the store, Mayor Domingo heard the moaning of someone in an agony
of pain. That person turned out to be Jose Siyang who had sustained four gunshot wounds
and was hovering between life and death. Siyang died before eleven o'clock that same night.
Constabulary soldiers and peace officers arrived at the scene of the shooting and conducted
an investigation. Mayor Domingo was taken to the provincial hospital. Doctor Gaffud
conducted an autopsy on the body of Jose Siyang in the municipal building. On the following
day empty shells were found by the Constabulary soldiers near the galvanized iron gate (6
tsn. III Calixto).

Teodoro Tamani and Cadawan left the scene of the shooting. They ran, passing the same
route that they had taken in coming, and went direct to the house of Vice-Mayor Villamor
Tamani in Barrio Aniog. Teodoro Tamani stayed overnight in the house of the vice-mayor.
Cadawan, who reported to the vice-mayor that Mayor Domingo was dead, proceeded to
Barrio Clakcab and returned the murder weapon to Matias de la Fuente.

The trial court accepted the foregoing version as the basis of the judgment of conviction. It
noted that in 1956 when NBI Agent Mariano G. Almeda arranged a confrontation between
Teodoro Tamani and Mrs. Ibarra, she identified him as the person whom she saw in her yard
in the evening of June 11, 1953. During the confrontation, Tamani trembled, became pale and
remained silent.

Teodoro Tamani sometime after the shooting went into hiding at Cabagan and Santo Tomas,
Isabela, where he was arrested by Mayor Domingo by virtue of a warrant of arrest issued in
Criminal Cases Nos. 245 and 246 of the justice of the peace court of Angadanan (Exh. 3, 4, 5
and 6, 11 tsn March 3, 1959). Appellant went into hiding although his wife was about to
deliver her baby.

As to the motive for shooting Mayor Domingo, Teodoro Tamani explained that Vice-Mayor
Villamor Tamani, his second cousin, ordered the liquidation of the mayor so that he could not
assume office and the vice-mayor would become mayor (Exh. A). Appellant Tamani was
chosen to execute that task because he had lost his job as policeman when Mayor Domingo
was reinstated (Exh. A, p. 2).

On the other hand, Mayor Domingo said that when Teodoro Tamani was still a policeman, the
mayor had scolded him for not reporting for work and for working as cook of Vice-Mayor
Villamor Tamani and plowing his field. The other motive was that since Teodoro Tamani is a
relative of the vice-mayor, who was a "political enemy" of the mayor, he (appellant Tamani)
could act as a policeman when the vice-mayor became mayor after the elimination of the
incumbent mayor (11 tsn March 3, 1959).

On the credibility of the prosecution eyewitness, Mrs. Ibarra, the trial judge made the
following findings:

The Court concentrated attention on the attitude and observed the gestures,
features, demeanor and manner of testifying and the emphasis, gestures and
inflection of the voice of prosecution witness Juana Vitorri de Ibarra during all
the time she was on the witness stand in the direct and cross-examination, and
her answers were prompt, concise, responsive to interrogatories, outspoken,
and entirely devoid of evasion or any semblance of shuffling, and her entire
testimony was given with calm, self-possession, an erect front, and
unhesitating accent. The Court is convinced of her sincerity and credibility and
the truthfulness of her testimony, in great contrast with defendant's manner of
testifying. (pp. 859-60, Record).

The trial court concluded that the intended victim was Mayor Domingo and not Jose Siyang.
Appellant's version and contentions.In this appeal appellant's counsel de oficio argues that
the trial court erred (1) in disbelieving Tamani's alibi; (2) in assuming that his extrajudicial
confession was voluntary; (3) in not giving credence to the testimony of defense witness
Francisco Siyang, that his son, Jose Siyang, was shot by Policemen Gaspar Ibarra and
Melchor Tumaneng; (4) in giving credence to circumstantial evidence, and (5) in the
alternative, in not holding that appellant Tamani committed the complex crime of homicide
with lesiones grave.

Appellant Tamani, having abjured his confession, gave the following version of the case by
means of his testimony and the testimony of his other witness, Francisco Siyang(Syang):

Francisco Siyang was the father of Jose Siyang, the town sanitary inspector, who with his
wife and four children, resided with Francisco Siyang at his house in Centro, Angadanan.
Francisco Siyang is an uncle of Vice-Mayor Villamor Tamani. At around six-thirty in the
evening of June 11, 1953 Venancio Respicio dropped at the house of Jose Siyang and invited
him for a walk. Francisco Siyang followed his son to the store of Pedro Pua which was
around four blocks from their house.

Francisco Siyang noticed that Jose Siyang was in front of Pua's store with Mayor Domingo,
Policemen Alfonso Gomez, Gaspar Ibarra, Graciano Manguelod and Melchor Tumaneng,
teachers Primitivo Tallog, Teodoro Colobong and Martin Caniero, Mariano Dalodad (a barber)
and Juaning Aliangan, a farmer. Jose Siyang was leaning against a post, obliquely at the
right of Mayor Domingo. Francisco Siyang allegedly approached Jose and told him that his
wife and children were waiting for him so that they could take supper. Jose answered "yes,
father".

While Francisco Siyang and Jose Siyang were standing side by side in front of Pua's store,
Mayor Domingo made a signal by stretching and raising his hand with open palm and
bringing it down. Suddenly, Policeman Ibarra, who was standing in front of Jose Siyang, fired
his carbine at the latter, hitting Jose Siyang in the chest. Policeman Tumaneng followed by
firing with his carbine successive shots at Jose Siyang, hitting the latter in the breast.
Tumaneng was on the right side of Ibarra, obliquely facing Jose Siyang.

After Jose Siyang fell, Francisco Siyang went to his succor and raised him. Jose Siyang told
his father: "Father, I am dying, my children." When Jose Siyang was brought to the municipal
building, he was breathing feebly. He could not talk anymore. He expired in the municipal
building. His body was brought home by Francisco Siyang.

In the morning of June 12th, Vice-Mayor Villamor Tamani with some Constabulary soldiers
arrived at the house of Francisco Siyang while the remains of Jose Siyang still lay in state.
After the burial of Jose Siyang in the afternoon, a Constabulary sergeant investigated
Francisco Siyang and took him to Ilagan, where he was further investigated. He gave a sworn
statement accusing Ibarra and Tumaneng of having killed Jose Siyang (Exh. 1).

On the basis of that statement, a criminal complaint for the murder of Jose Siyang was filed
on June 20, 1953 by Constabulary Lieutenant Tomas P. Gonzales in the justice of the peace
court of Angadanan against Venancio Respicio and Policemen Ibarra, Tumaneng and
Manguelod (Exh. 2, Crim. Case No. 244). The complaint was dismissed on August 12, 1953.

Other complaints for the murder of Jose Siyang and for frustrated murder perpetrated on
Mayor Domingo were filed in the justice of the peace court against Villamor Tamani, Teodoro
Tamani, Domingo Cadawan, Rufino de los Santos and Matias de la Fuente but they were later
dismiss (Exh. 3 to 6, Crim. Cases Nos. 245 and 246).

In October, 1956 Mariano G. Almeda of the NBI headed a team of agents that investigated the
shooting of Jose Siyang and Mayor Domingo. Francisco Siyang was investigated orally in
Ilagan by Almeda. The investigation was interrupted by former Congressman Samuel Reyes.
It was not finished.

Appellant Tamani, in support of his alibi, testified that Jose Siyang was his second cousin.
Tamani was a resident of Centro in the poblacion of Angadanan. At around three o'clock in
the afternoon of June 11, 1953 he was in the house of Vice-Mayor Villamor Tamani in Barrio
Aniog. He wanted a recommendation for a job in the Angadanan Sawmill. The place known as
Centro in the poblacion, where Pedro Pua's store is located, is around two kilometers from
Barrio Aniog. Vice-Mayor Tamani gave to Teodoro Tamani the recommendation between four
and five o'clock. The vice-mayor prevailed upon Teodoro Tamani to stay and they agreed to
go to town on the following day.

So, Teodoro Tamani slept in the house of his cousin, the vice-mayor, on the night of June
11th. On the morning of June 12th, Vice-Mayor Tamani and Teodoro Tamani went together to
Centro in the poblacion. When they reached Centro, they learned of Jose Siyang's death, for
which reason they viewed his body in the house of Francisco Siyang. They arrived at
Siyang's house at around eight and eight-thirty in the morning. They learned that Jose Siyang
was shot in front of Pedro Pua's store.

Teodoro Tamani did not go to the Angadanan Sawmill on June 12th. He delivered the letter of
recommendation on June 13th to the manager of the sawmill. He worked in the sawmill as
laborer for two weeks only. He resigned due to the heavy work. He could not remember the
name of the manager of the sawmill.

He denied that he shot Jose Siyang and Mayor Domingo. He did not participate in the
commission of the crime. He said that he was in the house of Vice-Mayor Tamani on the night
of June 11th.

On October 2, 1956 NBI Agent Almeda picked him up from his house for questioning in
connection with the shooting of Siyang and Mayor Domingo. Almeda was accompanied by
Alfonso Salvador, a Constabulary soldier. Tamani was brought to the municipal building.
From there, he was taken to Ilagan. He was brought by Almeda to the provincial jail at
Calamagui, Isabela, where he (Tamani) was delivered to Pedro Tamayo, a prisoner who was
acted as mayor of the cell (brigada). Tamani was formally received by the provincial guard
from Almeda at around six and six-thirty in the evening of October 2nd.

Upon delivering Tamani to Tamayo, Almeda allegedly told Tamayo: "Bahala kayo rian,
Tamayo, at ako ang bahala sa iyo". Twenty minutes later, Pedro Tamayo, Juanito Dassig,
Juan Pecano, Ernesto Castaeda and other convicts started maltreating Tamani. The alleged
maltreatment consisted of the following:

First, they ordered Tamani to squat on the cemented floor inside the cell
(brigada).

Second, after squatting on the cement floor, they ordered Tamani to stand and
then started boxing him for one hour.
Third, they removed all his clothings and put Tamani inside a drum where
prisoners dropped their human waste. He was required to stay inside the drum
for five minutes, after which they brought him out and poured on him water to
was his body from the human waste.

Fourth, they made Tamani pulverized pepper and they placed the pulverized
pepper in his anus, penis and testicles.

Tamani was maltreated because the tormentors wanted him to admit that he was the one who
shot Jose Siyang and Mayor Domingo. As he could not endure the maltreatment he admitted
he had shot Siyang and Domingo. The maltreatment was stopped after he made the
admission.

Around ten to ten-thirty on that same night, Almeda returned to the jail and asked Tamayo:
"Does he admit now?" Tamayo answered in the affirmative. Almeda then took Tamani out of
the jail and brought him to the second floor of Puring's Restaurant. Almeda called for NBI
Agent No. 101 who came out of a room with a typewriter. Agent No. 101 placed his typewriter
on a table. Almeda told Tamani "Now, I am going to take your statement that you shot Jose
Siyang and Mayor Domingo."

At first Tamani told Almeda that he knew nothing about the shooting because he was in
Barrio Aniog when Domingo and Siyang were shot. Thereupon, Almeda told Tamani not to
deny the shooting because Juana Vitorri Vda. de Ibarra recognized him when he stumbled
before the shooting at a place near the fence between the lots of Pedro Pua and Mrs. Ibarra.
Tamani maintained his innocence about the shooting.

Thereafter, Almeda and NBI Agent No. 101 slapped the face of Tamani. They brought him to a
toilet. They pushed his head into the toilet bowl (iniodoro). They held his hair and pushed his
face toward the mouth of the toilet bowl for five minutes. When Tamani could not endure the
torture anymore, he told Almeda that he would admit the crime. Almeda and Agent No. 101
brought Tamani to the table on the second floor of Puring's Restaurant. Almeda told Tamani:
"You better admit now that you shot the two victims, that you took the gun from Matias de la
Fuente and that Villamor Tamani and Rufino de los Santos are the masterminds".

Tamani admitted that version for fear that he would again be maltreated. His affidavit, Exhibit
A, was signed at Puring's Restaurant on the night of October 2, 1956. The contents of Exhibit
A "are all the versions of Director Almeda". Tamani admitted his signature and thumbmarks
in Exhibit A. On the following morning of October 3rd, Almeda and Agent No. 101 brought
back Tamani to the jail.

Tamani admits that he signed Exhibit B also, his supplementary confession. However, he
insists that he signed it on the night of October 2nd and not on October 3rd. He said that he
never excluded Domingo Cadawan and that he never incriminated himself as the triggerman.
He might have signed Exhibit B in connection with his signing of Exhibit A on the night of
October 2nd because when he signed Exhibit A, there were several sheets of paper which he
signed and thumbmarked. He allegedly did not know the contents of Exhibit B when he
affixed his signature thereon. He says that the incriminatory statements in Exhibits A and B
are not true. (See pp. 3-4, 17-28, Appellant's Brief).

The trial court rejected the foregoing version of the defense after noting the improbabilities in
Francisco Siyang's testimony and after concluding that the appellant had not overcome the
presumption that his confession was voluntarily executed.
The shooting incident was undoubtedly another episode in the political rivalry between
Mayor Domingo and Vice-Mayor Tamani. That circumstance has given a political complexion
to these two cases. It may explain why the evidence has become muddled, if not baffling. It
was to be expected that, to suit the ulterior motivations of the contending parties there would
be same insidious manipulation of the evidence.

Thus, on June 12th, the day following the shooting and before Jose Siyang was interred,
Constabulary soldiers, accompanied by Vice-Mayor Villamor Tamani, investigated Francisco
Siyang (51-52 tsn Aug. 26, 1960). On June 14, 1953, or four days after the shooting and while
Mayor Domingo was in the hospital, Francisco Siyang (the uncle of Villamor Tamani and the
star witness for the defense and the father of the victim, Jose Siyang) executed an affidavit in
Ilagan about the shooting. He made it appear in that statement that Patrolmen Ibarra and
Tumaneng, two followers of Mayor Domingo, were the killers of Jose Siyang and that they
commenced to shoot Siyang when Mayor Domingo made a prearranged signal (Exh. 1).

As already noted, on the basis of that affidavit, Constabulary Lieutenant Tomas P. Gonzales
filed in the justice of the peace court of Angadanan a complaint for murder against Policemen
Ibarra, Tumaneng and Manguelod and one Venancio Respicio, an alleged nephew of the
mayor (Exh. 2, Crim. Case No. 244). According to Francisco Siyang's affidavit, Respicio,
a compadre of Jose Siyang, acted as decoy in bringing Jose Siyang to the place where he
was assassinated. Domingo repeatedly denied that Respicio was his relative by
consanguinity or affinity. Francisco Siyang made it appear that his son was murdered
because he testified against Domingo in the case where the latter was charged with theft.
Because of that theft case Domingo was suspended. That murder complaint (Exh. 2) against
the followers of Mayor Domingo was dismissed.

After the mayor was released from the hospital, he and the chief of police investigated the
shooting. The chief of the police filed a complaint for murder dated July 8, 1953 against Vice-
Mayor Tamani, Teodoro Tamani, Rufino de los Santos, Matias de la Fuente, Arsenio Dayang
and Medardo Tamani. The complaint was amended by including Domingo Cadawan as a
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defendant and excluding Dayang and Medardo Tamani (Exh. 3 and 4, Crim. Case No. 245). For
the shooting of Mayor Domingo, a complaint for frustrated murder was filed by the chief of
police against the same persons (Exh. 5 and 6, Crim. Case No. 246).

Both complaints were dismissed apparently for lack of evidence. As the shooting was
unsolved crime, the intervention of the NBI became necessary.

On June 4, 1956 Francisco Siyang executed an affidavit in Ilagan before NBI Agent No. 39. He
deviated from his 1953 affidavit by naming Melchor Tumaneng alone ("Melchor Tomines") as
the assassin of his son, Jose Siyang. He stuck to his original theory that Mayor Domingo
masterminded the assassination of his son (Exh. G).

As already noted, four months later, or on October 2 and 3, 1956, an NBI investigating team
headed by Mariano G. Almeda, a lawyer and an assistant to the NBI Director, secured a
confession from appellant Teodoro Tamani that he, with the assistance of Domingo Cadawan,
shot Mayor Domingo and Jose Siyang (Exh. A and B). It may be assumed that the NBI was
asked to handle the case so that political considerations would not color and influence the
course and outcome of the investigation.

Before Tamani executed his confession, Almeda and his agents, assisted by Constabulary
soldiers, interviewed several persons in Angadanan and made an ocular inspection of the
scene of the crime. They investigated Mrs. Ibarra and her daughter. They learned that
Teodoro Tamani had entered Mrs. Ibarra's yard and was recognized by her and that,
immediately thereafter, she heard gunshots from the direction where Tamani had posted
himself. Thus, Tamani became a prime suspect. He was apprehended and brought to the
house of Mrs. Ibarra for a confrontation. Almeda testified:

Q. What did you do, if any, when Teodoro Tamani was brought
to the house of Juana Vittori Vda. de Ibarra? A. In the
presence of Juana Vittori Vda. de Ibarra and her daughter I
confronted them and asked Juana Vittori Vda. de Ibarra and her
daughter whether they knew Teodoro Tamani and both claimed
that he is the very same fellow who entered the yard that night
with a gun and also they heard shots from the direction of the
said accused Teodoro Tamani after which Teodoro Tamani was
trembling and he became pale.

Q. And did Teodoro Tamani say anything when he was pointed


out by Juana Vittori Vda. de Ibarra and her daughter? A. He
did not utter anything. He simply became pale and trembling. (16
tsn June 12, 1958, II Valencia).

Tamani's confession (Exh. A and B) was the basis of the information for murder and
frustrated murder against him in these two cases.

Findings: Appellant Tamani's defense of alibi, which can be fabricated with facility, cannot be
given serious consideration. Assuming that he was in Barrio Aniog in the afternoon and night
of June 11th, it was physically possible for him to be at the scene of the shooting at the time
that it was perpetrated and return to the house of Vice-Mayor Tamani in Barrio Aniog. That
place was only two kilometers from the store of Pedro Pua. The victim was shot in front of the
store.

The settled rule is that an alibi, to be tenable, must be such as to preclude the possibility of
the presence of the accused at the scene of the crime or its immediate vicinity at the time of
its commission. "The accused must show that he was at some other place for such period of
time that it was impossible for him to have been at the place where the crime was committed
at the time of its commission" (People vs. Lumantas, L-28355, July 17, 1969, 2 SCRA 764,
768).

Appellant's alibi does not satisfy that basic requirement. Moreover, it was not corroborated
by Vice-Mayor Tamani or by any other person. Its concocted character is manifest.

Appellant Tamani argues that he signed his confession, Exhibit A, because he was tortured
or maltreated. He claim that he does not remember having signed his supplementary
confession (Exh. B) although he admits the authenticity of his signature and thumbmark
therein.

NBI Agents Almeda and Mendoza testified that Tamani's sworn statements were freely
executed. Tamani's testimony on the alleged maltreatment was not corroborated. As
correctly noted by the Solicitor General, certain details in the confession, which only Tamani
could have supplied, are indications of its voluntariness and give it spontaneity and
coherence.
Those details are (a) that Teodoro Tamani and Cadawan conferred with Vice-Mayor Villamor
Tamani in the latter's house at Aniog at three o'clock in the afternoon of the day preceding
the shooting; (b) that Matias de la Fuente and Rufino de los Santos were present at the
conference and it was decided to liquidate Mayor Domingo to enable the vice mayor to act as
mayor; (c) that De la Fuente handed to Tamani and Cadawan the carbine to be used in the
killing; (d) that Cadawan and Tamani slept in the vice-mayor's house on the night of June 10,
1953; (e) that Cadawan went to the poblacion in the morning of June 11th in order to
ascertain the whereabouts of Mayor Domingo; (f) that Cadawan returned in the afternoon and
informed Tamani that Domingo was at Pua's store; (g) that Cadawan stumbled in the yard of
Mrs. Ibarra; (h) that after firing the shots, the two returned to the vice-mayor's house; (i) that
Teodoro Tamani slept in the house of the vice-mayor after the assassination; (j) that Jose
Siyang was standing on the right side of Mayor Domingo "along the line of fire"; (k) that Jose
Siyang was his second cousin and the second cousin of the vice-mayor and (l) that the hole
in the gate was three inches in diameter.

Those circumstances might not have been known if the confession had been executed under
duress. NBI Agents Almeda and Mendoza could not have manufactured all these details.

There is one significant inconsistency in appellant Tamani's testimony on March 26, 1962
which impairs his credibility. He claimed that his supplementary confession, Exh. B, was
translate to him in Tagalog but that he did not understand Tagalog on or before October 3,
1956 (117 tsn I Valencia). However, when he testified on January 11, 1962 and he was asked
to repeat what NBI Agent Almeda told in Tagalog to the prisoner, Pedro Tamayo, Tamani was
able to repeat verbatim the word: "Bahala kayo rian Tamayo at ako ang bahala sa iyo" (83 tsn
II Calixto). He repeated the same Tagalog words in the later part of his testimony (86 tsn) and
at the hearing on April 5, 1962 (127 tsn I Valencia).

Agent Almeda testified that appellant Tamani understands English, being a former policeman,
and that Tamani read Exhibit B, which is in English and which NBI Agent Mendoza translated
to him in Ilocano. Tamani did not deny that he knows English. His petition to this Court that
he be granted bail, which petition bears his signature, is in English. (See Rollo).

There is no merit in appellant Tamani's contention that the trial court erred in not giving
credence to the testimony of Francisco Siyang (Syang) that Jose Siyang was shot by
policemen Ibarra and Tumaneng, the latter being allegedly a houseboy of Mayor Domingo.
The inconsistencies on vital details in Siyang's two affidavits and his testimony signify that
he deliberately perverted the truth. His testimony exhibits the earmarks of untrustworthiness.
It was squarely refuted by Martin Caniero and Teodoro Colobong. It should be underscored
that Francisco Siyang is the uncle of the vice-mayor (58 tsn Aug. 26, 1960).

In his 1953 affidavit (Exh. 1) he declared that Policemen Ibarra and Tumaneng shot his son,
Jose Siyang, whereas, in his 1965 affidavit (Exh. G) he alleged that only Tumaneng (Tomines)
shot his son.

Francisco Siyang, a farmer, was already seventy-six years old when he testified in 1960. On
direct examination he testified that his son was shot in the breast by Gaspar Ibarra, who was
immediately followed by Melchor Tumaneng. Tumaneng allegedly hit Jose Siyang in the left
part of the breast below the clavicle (48 tsn I Valencia). That was also Francisco Siyang's
declaration in his 1953 affidavit (Exh. 1): that Ibarra fired first.

However, Francisco Siyang on cross-examination testified differently. He declared that


Tumaneng fired first and that the second shot was fired by Ibarra. Francisco Siyang said that
he was sure that Tumaneng fired first at his son (89, 92, 93 tsn I Valencia). The following is an
example of his confusing testimony:

Q. How many shots did Gaspar Ibarra fire at your son? A.


Only one, sir.

Q. Who fired the two first shots, if you know? A. Melchor


Tumaneng, sir.

Q. Did you actually see or not the two successive shots at your
son? A. I saw him, sir.

Q. Who fired the other two shots which according to you your
son was hit by five (5) gunshots A. Gaspar Ibarra, sir.

Q. Do you mean to say that Gaspar Ibarra fired first one shot and
then two shots, all in all three shots? A. Gaspar Ibarra fired
only one, sir. (93 tsn I Valencia).

Q. Who was the first who shot your son, according to you? A.
Melchor Tumaneng.

Q. Where was Melchor Tumaneng at the moment he shot you?


A. He was at the gate of the fence.

Q. But he was inside with the group of persons at the media de


agua of the store of Pedro Pua. Is it? A. Yes, sir (21 tsn I
Calixto).

NBI Agent Almeda, after investigating Francisco Siyang, found his theory incredible. Almeda
did not believe that Francisco Siyang could have seen or identified the assailant who was
behind the fence. According to Almeda, Francisco Siyang merely suspected certain person
as the killers of his son. He could not identify positively the killers.

Other grave inconsistencies in Francisco Siyang's affidavits and testimony are discussed in
the trial court's decision.

Appellant Tamani further contends that the trial court erred in relying on thirteen
circumstances in order to convince itself that Tamani was the culprit. Among those
circumstances are that Tamani went into hiding sometime after the shooting and that the
motive for the attempted murder of Mayor Domingo was to prevent his reinstatement and to
enable the vice-mayor to become permanent mayor and ensure that appellant Tamani would
again become a policemen.

Judge Pedro C. Quinto's painstaking analysis of the evidence and his conscientious scrutiny
of the discrepancies in the testimony and affidavits of Francisco Siyang demonstrate that the
guilt of Tamani has been proven beyond reasonable doubt. A thorough perusal of the record
leads to the conclusion that the trial court did not commit the errors imputed to it by the
appellant.
The act of shooting Siyang at a distance, without the least expectation on his part that he
would be assaulted, is murder because of the attendance of the qualifying circumstance of
treachery (alevosia). Appellant Tamani deliberately employed a mode of execution which
tended directly and specially to ensure the consummation of the killing without any risk to
himself arising from the defense which the victim could have made (Par. 16, Art. 14, Revised
Penal Code). Siyang, unarmed and without any intimation that the gunshots intended for
Mayor Domingo would hit him, was not in a position to defend himself against the unseen
assailant. Treachery may be appreciated even if there was a mistake as to the victim (People
vs. Mabug-at, 51 Phil. 967; People vs. Guillen, 85 Phil. 307).

As to Mayor Domingo, the accused was not able to perform all the acts of execution which
would consummate the killing (Art. 6, Revised Penal Code). The accused was not able to do
so, not because of his spontaneous desistance but because he failed to inflict on the mayor a
mortal wound. The mayor was able to avoid the second volley by taking refuge in the store of
Pedro Pua. But there is no doubt that the accused was animated by the intent to kill and that
the shooting was perpetrated in a treacherous manner. Hence, the offense against the mayor
is attempted murder (People vs. Kalalo, 59 Phil. 715).

The alternative contention of appellant Tamani that should be convicted of the complex crime
of homicide with lesiones graves is not well-taken. As already pointed out, the killing of
Siyang cannot be characterized as homicide. It was qualified by treachery. There was intent
to kill in the shooting of the mayor. So, the wound inflicted on him cannot be regarded as a
mere physical injury. It was overt act manifesting the willful design of the accused to
liquidate the mayor.

The infliction of the four fatal gunshot wounds on Siyang and of the wound in the palm of the
mayor's right hand was not the result of a single act. The injuries were the consequences of
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two volley of gunshots. Hence, the assaults on Siyang and the mayor cannot be categorized
as a complex crime.

To convict the accused of the complex crime of murder with attempted murder would result
in the imposition of the death penalty. That eventuality would be worse for him.

There being no mitigating nor aggravating circumstances, the penalty of reclusion


perpetua should be imposed on the appellant for the killing of Siyang. (Arts. 64 [1] and 248,
Revised Penal Code). The use of the term "life imprisonment" is not proper (People vs. Mobe,
81 Phil. 58).

WHEREFORE, the appeal is dismissed with costs against the appellant. So ordered.

Zaldivar, Fernando and Fernandez, JJ., concur. 1wp h1.t

Barredo, J., took no part.

Separate Opinions
ANTONIO, J., concurring.:

In the dismissal of the appeal on the ground that the judgment of the laws must become final
after the lapse of the period for perfecting an appeal. (Sec. 7, Rule 120.)

Separate Opinions

ANTONIO, J., concurring.:

In the dismissal of the appeal on the ground that the judgment of the laws must become final
after the lapse of the period for perfecting an appeal. (Sec. 7, Rule 120.)

.R. No. L-47745 April 15, 1988

JOSE S. AMADORA, LORETA A. AMADORA, JOSE A. AMADORA JR., NORMA A. YLAYA


PANTALEON A. AMADORA, JOSE A. AMADORA III, LUCY A. AMADORA, ROSALINDA A.
AMADORA, PERFECTO A. AMADORA, SERREC A. AMADORA, VICENTE A. AMADORA and
MARIA TISCALINA A. AMADORA,petitioners
vs.
HONORABLE COURT OF APPEALS, COLEGIO DE SAN JOSE-RECOLETOS, VICTOR LLUCH
SERGIO P. DLMASO JR., CELESTINO DICON, ANIANO ABELLANA, PABLITO DAFFON thru
his parents and natural guardians, MR. and MRS. NICANOR GUMBAN, and ROLANDO
VALENCIA, thru his guardian, A. FRANCISCO ALONSO, respondents.

Jose S. Amadora & Associates for petitioners.

Padilla Law Office for respondents.

CRUZ, J.:

Like any prospective graduate, Alfredo Amadora was looking forward to the commencement
exercises where he would ascend the stage and in the presence of his relatives and friends receive
his high school diploma. These ceremonies were scheduled on April 16, 1972. As it turned out,
though, fate would intervene and deny him that awaited experience. On April 13, 1972, while they
were in the auditorium of their school, the Colegio de San Jose-Recoletos, a classmate, Pablito
Damon, fired a gun that mortally hit Alfredo, ending all his expectations and his life as well. The
victim was only seventeen years old. 1

Daffon was convicted of homicide thru reckless imprudence . 2 Additionally, the herein petitioners, as
the victim's parents, filed a civil action for damages under Article 2180 of the Civil Code against the
Colegio de San Jose-Recoletos, its rector the high school principal, the dean of boys, and the physics
teacher, together with Daffon and two other students, through their respective parents. The complaint
against the students was later dropped. After trial, the Court of First Instance of Cebu held the remaining
defendants liable to the plaintiffs in the sum of P294,984.00, representing death compensation, loss of
earning capacity, costs of litigation, funeral expenses, moral damages, exemplary damages, and
attorney's fees . 3 On appeal to the respondent court, however, the decision was reversed and all the
defendants were completely absolved . 4

In its decision, which is now the subject of this petition for certiorari under Rule 45 of the Rules of
Court, the respondent court found that Article 2180 was not applicable as the Colegio de San Jose-
Recoletos was not a school of arts and trades but an academic institution of learning. It also held
that the students were not in the custody of the school at the time of the incident as the semester
had already ended, that there was no clear identification of the fatal gun and that in any event the
defendant, had exercised the necessary diligence in preventing the injury. 5

The basic undisputed facts are that Alfredo Amadora went to the San Jose-Recoletos on April 13,
1972, and while in its auditorium was shot to death by Pablito Daffon, a classmate. On the
implications and consequences of these facts, the parties sharply disagree.

The petitioners contend that their son was in the school to show his physics experiment as a
prerequisite to his graduation; hence, he was then under the custody of the private respondents. The
private respondents submit that Alfredo Amadora had gone to the school only for the purpose of
submitting his physics report and that he was no longer in their custody because the semester had
already ended.

There is also the question of the identity of the gun used which the petitioners consider important
because of an earlier incident which they claim underscores the negligence of the school and at
least one of the private respondents. It is not denied by the respondents that on April 7, 1972, Sergio
Damaso, Jr., the dean of boys, confiscated from Jose Gumban an unlicensed pistol but later
returned it to him without making a report to the principal or taking any further action . 6 As Gumban
was one of the companions of Daffon when the latter fired the gun that killed Alfredo, the petitioners
contend that this was the same pistol that had been confiscated from Gumban and that their son would
not have been killed if it had not been returned by Damaso. The respondents say, however, that there is
no proof that the gun was the same firearm that killed Alfredo.

Resolution of all these disagreements will depend on the interpretation of Article 2180 which, as it
happens, is invoked by both parties in support of their conflicting positions. The pertinent part of this
article reads as follows:

Lastly, teachers or heads of establishments of arts and trades shall be liable for
damages caused by their pupils and students or apprentices so long as they remain
in their custody.

Three cases have so far been decided by the Court in connection with the above-quoted provision,
to wit: Exconde v. Capuno 7 Mercado v. Court of Appeals, 8 and Palisoc v. Brillantes. 9 These will be
briefly reviewed in this opinion for a better resolution of the case at bar.

In the Exconde Case, Dante Capuno, a student of the Balintawak Elementary School and a Boy
Scout, attended a Rizal Day parade on instructions of the city school supervisor. After the parade,
the boy boarded a jeep, took over its wheel and drove it so recklessly that it turned turtle, resulting in
the death of two of its passengers. Dante was found guilty of double homicide with reckless
imprudence. In the separate civil action flied against them, his father was held solidarily liable with
him in damages under Article 1903 (now Article 2180) of the Civil Code for the tort committed by the
15-year old boy.

This decision, which was penned by Justice Bautista Angelo on June 29,1957, exculpated the
school in an obiter dictum (as it was not a party to the case) on the ground that it was riot a school of
arts and trades. Justice J.B.L. Reyes, with whom Justices Sabino Padilla and Alex Reyes concurred,
dissented, arguing that it was the school authorities who should be held liable Liability under this
rule, he said, was imposed on (1) teachers in general; and (2) heads of schools of arts and trades in
particular. The modifying clause "of establishments of arts and trades" should apply only to "heads"
and not "teachers."

Exconde was reiterated in the Mercado Case, and with an elaboration. A student cut a classmate
with a razor blade during recess time at the Lourdes Catholic School in Quezon City, and the
parents of the victim sued the culprits parents for damages. Through Justice Labrador, the Court
declared in another obiter (as the school itself had also not been sued that the school was not liable
because it was not an establishment of arts and trades. Moreover, the custody requirement had not
been proved as this "contemplates a situation where the student lives and boards with the teacher,
such that the control, direction and influences on the pupil supersede those of the parents." Justice
J.B.L. Reyes did not take part but the other members of the court concurred in this decision
promulgated on May 30, 1960.

In Palisoc vs. Brillantes, decided on October 4, 1971, a 16-year old student was killed by a
classmate with fist blows in the laboratory of the Manila Technical Institute. Although the wrongdoer
who was already of age was not boarding in the school, the head thereof and the teacher in
charge were held solidarily liable with him. The Court declared through Justice Teehankee:

The phrase used in the cited article "so long as (the students) remain in their
custody" means the protective and supervisory custody that the school and its
heads and teachers exercise over the pupils and students for as long as they are at
attendance in the school, including recess time. There is nothing in the law that
requires that for such liability to attach, the pupil or student who commits the tortious
act must live and board in the school, as erroneously held by the lower court, and
the dicta in Mercado (as well as in Exconde) on which it relied, must now be deemed
to have been set aside by the present decision.

This decision was concurred in by five other members, 10 including Justice J.B.L. Reyes, who stressed,
in answer to the dissenting opinion, that even students already of age were covered by the provision
since they were equally in the custody of the school and subject to its discipline. Dissenting with three
others, 11 Justice Makalintal was for retaining the custody interpretation in Mercado and submitted that the
rule should apply only to torts committed by students not yet of age as the school would be acting only
in loco parentis.

In a footnote, Justice Teehankee said he agreed with Justice Reyes' dissent in the Exconde Case
but added that "since the school involved at bar is a non-academic school, the question as to the
applicability of the cited codal provision to academic institutions will have to await another case
wherein it may properly be raised."

This is the case.

Unlike in Exconde and Mercado, the Colegio de San Jose-Recoletos has been directly impleaded
and is sought to be held liable under Article 2180; and unlike in Palisoc, it is not a school of arts and
trades but an academic institution of learning. The parties herein have also directly raised the
question of whether or not Article 2180 covers even establishments which are technically not
schools of arts and trades, and, if so, when the offending student is supposed to be "in its custody."

After an exhaustive examination of the problem, the Court has come to the conclusion that the
provision in question should apply to all schools, academic as well as non-academic. Where the
school is academic rather than technical or vocational in nature, responsibility for the tort committed
by the student will attach to the teacher in charge of such student, following the first part of the
provision. This is the general rule. In the case of establishments of arts and trades, it is the head
thereof, and only he, who shall be held liable as an exception to the general rule. In other words,
teachers in general shall be liable for the acts of their students except where the school is technical
in nature, in which case it is the head thereof who shall be answerable. Following the canon
ofreddendo singula singulis "teachers" should apply to the words "pupils and students" and "heads
of establishments of arts and trades" to the word "apprentices."

The Court thus conforms to the dissenting opinion expressed by Justice J.B.L. Reyes in Exconde
where he said in part:

I can see no sound reason for limiting Art. 1903 of the Old Civil Code to teachers of
arts and trades and not to academic ones. What substantial difference is there
between them insofar as concerns the proper supervision and vice over their pupils?
It cannot be seriously contended that an academic teacher is exempt from the duty of
watching that his pupils do not commit a tort to the detriment of third Persons, so
long as they are in a position to exercise authority and Supervision over the pupil. In
my opinion, in the phrase "teachers or heads of establishments of arts and trades"
used in Art. 1903 of the old Civil Code, the words "arts and trades" does not qualify
"teachers" but only "heads of establishments." The phrase is only an updated version
of the equivalent terms "preceptores y artesanos" used in the Italian and French Civil
Codes.

If, as conceded by all commentators, the basis of the presumption of negligence of


Art. 1903 in someculpa in vigilando that the parents, teachers, etc. are supposed to
have incurred in the exercise of their authority, it would seem clear that where the
parent places the child under the effective authority of the teacher, the latter, and not
the parent, should be the one answerable for the torts committed while under his
custody, for the very reason/that the parent is not supposed to interfere with the
discipline of the school nor with the authority and supervision of the teacher while the
child is under instruction. And if there is no authority, there can be no responsibility.

There is really no substantial distinction between the academic and the non-academic schools
insofar as torts committed by their students are concerned. The same vigilance is expected from the
teacher over the students under his control and supervision, whatever the nature of the school
where he is teaching. The suggestion in the Exconde and Mercado Cases is that the provision would
make the teacher or even the head of the school of arts and trades liable for an injury caused by any
student in its custody but if that same tort were committed in an academic school, no liability would
attach to the teacher or the school head. All other circumstances being the same, the teacher or the
head of the academic school would be absolved whereas the teacher and the head of the non-
academic school would be held liable, and simply because the latter is a school of arts and trades.

The Court cannot see why different degrees of vigilance should be exercised by the school
authorities on the basis only of the nature of their respective schools. There does not seem to be any
plausible reason for relaxing that vigilance simply because the school is academic in nature and for
increasing such vigilance where the school is non-academic. Notably, the injury subject of liability is
caused by the student and not by the school itself nor is it a result of the operations of the school or
its equipment. The injury contemplated may be caused by any student regardless of the school
where he is registered. The teacher certainly should not be able to excuse himself by simply
showing that he is teaching in an academic school where, on the other hand, the head would be held
liable if the school were non-academic.
These questions, though, may be asked: If the teacher of the academic school is to be held
answerable for the torts committed by his students, why is it the head of the school only who is held
liable where the injury is caused in a school of arts and trades? And in the case of the academic or
non- technical school, why not apply the rule also to the head thereof instead of imposing the liability
only on the teacher?

The reason for the disparity can be traced to the fact that historically the head of the school of arts
and trades exercised a closer tutelage over his pupils than the head of the academic school. The old
schools of arts and trades were engaged in the training of artisans apprenticed to their master who
personally and directly instructed them on the technique and secrets of their craft. The head of the
school of arts and trades was such a master and so was personally involved in the task of teaching
his students, who usually even boarded with him and so came under his constant control,
supervision and influence. By contrast, the head of the academic school was not as involved with his
students and exercised only administrative duties over the teachers who were the persons directly
dealing with the students. The head of the academic school had then (as now) only a vicarious
relationship with the students. Consequently, while he could not be directly faulted for the acts of the
students, the head of the school of arts and trades, because of his closer ties with them, could be so
blamed.

It is conceded that the distinction no longer obtains at present in view of the expansion of the
schools of arts and trades, the consequent increase in their enrollment, and the corresponding
diminution of the direct and personal contract of their heads with the students. Article 2180, however,
remains unchanged. In its present state, the provision must be interpreted by the Court according to
its clear and original mandate until the legislature, taking into account the charges in the situation
subject to be regulated, sees fit to enact the necessary amendment.

The other matter to be resolved is the duration of the responsibility of the teacher or the head of the
school of arts and trades over the students. Is such responsibility co-extensive with the period when
the student is actually undergoing studies during the school term, as contended by the respondents
and impliedly admitted by the petitioners themselves?

From a reading of the provision under examination, it is clear that while the custody requirement, to
repeatPalisoc v. Brillantes, does not mean that the student must be boarding with the school
authorities, it does signify that the student should be within the control and under the influence of the
school authorities at the time of the occurrence of the injury. This does not necessarily mean that
such, custody be co-terminous with the semester, beginning with the start of classes and ending
upon the close thereof, and excluding the time before or after such period, such as the period of
registration, and in the case of graduating students, the period before the commencement exercises.
In the view of the Court, the student is in the custody of the school authorities as long as he is under
the control and influence of the school and within its premises, whether the semester has not yet
begun or has already ended.

It is too tenuous to argue that the student comes under the discipline of the school only upon the
start of classes notwithstanding that before that day he has already registered and thus placed
himself under its rules. Neither should such discipline be deemed ended upon the last day of classes
notwithstanding that there may still be certain requisites to be satisfied for completion of the course,
such as submission of reports, term papers, clearances and the like. During such periods, the
student is still subject to the disciplinary authority of the school and cannot consider himself released
altogether from observance of its rules.

As long as it can be shown that the student is in the school premises in pursuance of a legitimate
student objective, in the exercise of a legitimate student right, and even in the enjoyment of a
legitimate student right, and even in the enjoyment of a legitimate student privilege, the responsibility
of the school authorities over the student continues. Indeed, even if the student should be doing
nothing more than relaxing in the campus in the company of his classmates and friends and enjoying
the ambience and atmosphere of the school, he is still within the custody and subject to the
discipline of the school authorities under the provisions of Article 2180.

During all these occasions, it is obviously the teacher-in-charge who must answer for his students'
torts, in practically the same way that the parents are responsible for the child when he is in their
custody. The teacher-in-charge is the one designated by the dean, principal, or other administrative
superior to exercise supervision over the pupils in the specific classes or sections to which they are
assigned. It is not necessary that at the time of the injury, the teacher be physically present and in a
position to prevent it. Custody does not connote immediate and actual physical control but refers
more to the influence exerted on the child and the discipline instilled in him as a result of such
influence. Thus, for the injuries caused by the student, the teacher and not the parent shag be held
responsible if the tort was committed within the premises of the school at any time when its authority
could be validly exercised over him.

In any event, it should be noted that the liability imposed by this article is supposed to fall directly on
the teacher or the head of the school of arts and trades and not on the school itself. If at all, the
school, whatever its nature, may be held to answer for the acts of its teachers or even of the head
thereof under the general principle ofrespondeat superior, but then it may exculpate itself from
liability by proof that it had exercised the diligence of abonus paterfamilias.

Such defense is, of course, also available to the teacher or the head of the school of arts and trades
directly held to answer for the tort committed by the student. As long as the defendant can show that
he had taken the necessary precautions to prevent the injury complained of, he can exonerate
himself from the liability imposed by Article 2180, which also states that:

The responsibility treated of in this article shall cease when the Persons herein
mentioned prove that they observed all the diligence of a good father of a family to
prevent damages.

In this connection, it should be observed that the teacher will be held liable not only when he is
acting in loco parentis for the law does not require that the offending student be of minority age.
Unlike the parent, who wig be liable only if his child is still a minor, the teacher is held answerable by
the law for the act of the student under him regardless of the student's age. Thus, in the Palisoc
Case, liability attached to the teacher and the head of the technical school although the wrongdoer
was already of age. In this sense, Article 2180 treats the parent more favorably than the teacher.

The Court is not unmindful of the apprehensions expressed by Justice Makalintal in his dissenting
opinion in Palisoc that the school may be unduly exposed to liability under this article in view of the
increasing activism among the students that is likely to cause violence and resulting injuries in the
school premises. That is a valid fear, to be sure. Nevertheless, it should be repeated that, under the
present ruling, it is not the school that will be held directly liable. Moreover, the defense of due
diligence is available to it in case it is sought to be held answerable as principal for the acts or
omission of its head or the teacher in its employ.

The school can show that it exercised proper measures in selecting the head or its teachers and the
appropriate supervision over them in the custody and instruction of the pupils pursuant to its rules
and regulations for the maintenance of discipline among them. In almost all cases now, in fact, these
measures are effected through the assistance of an adequate security force to help the teacher
physically enforce those rules upon the students. Ms should bolster the claim of the school that it
has taken adequate steps to prevent any injury that may be committed by its students.

A fortiori, the teacher himself may invoke this defense as it would otherwise be unfair to hold him
directly answerable for the damage caused by his students as long as they are in the school
premises and presumably under his influence. In this respect, the Court is disposed not to expect
from the teacher the same measure of responsibility imposed on the parent for their influence over
the child is not equal in degree. Obviously, the parent can expect more obedience from the child
because the latter's dependence on him is greater than on the teacher. It need not be stressed that
such dependence includes the child's support and sustenance whereas submission to the teacher's
influence, besides being coterminous with the period of custody is usually enforced only because of
the students' desire to pass the course. The parent can instill more las discipline on the child than
the teacher and so should be held to a greater accountability than the teacher for the tort committed
by the child.

And if it is also considered that under the article in question, the teacher or the head of the school of
arts and trades is responsible for the damage caused by the student or apprentice even if he is
already of age and therefore less tractable than the minor then there should all the more be
justification to require from the school authorities less accountability as long as they can prove
reasonable diligence in preventing the injury. After all, if the parent himself is no longer liable for the
student's acts because he has reached majority age and so is no longer under the former's control,
there is then all the more reason for leniency in assessing the teacher's responsibility for the acts of
the student.

Applying the foregoing considerations, the Court has arrived at the following conclusions:

1. At the time Alfredo Amadora was fatally shot, he was still in the custody of the authorities of
Colegio de San Jose-Recoletos notwithstanding that the fourth year classes had formally ended. It
was immaterial if he was in the school auditorium to finish his physics experiment or merely to
submit his physics report for what is important is that he was there for a legitimate purpose. As
previously observed, even the mere savoring of the company of his friends in the premises of the
school is a legitimate purpose that would have also brought him in the custody of the school
authorities.

2. The rector, the high school principal and the dean of boys cannot be held liable because none of
them was the teacher-in-charge as previously defined. Each of them was exercising only a general
authority over the student body and not the direct control and influence exerted by the teacher
placed in charge of particular classes or sections and thus immediately involved in its discipline. The
evidence of the parties does not disclose who the teacher-in-charge of the offending student was.
The mere fact that Alfredo Amadora had gone to school that day in connection with his physics
report did not necessarily make the physics teacher, respondent Celestino Dicon, the teacher-in-
charge of Alfredo's killer.

3. At any rate, assuming that he was the teacher-in-charge, there is no showing that Dicon was
negligent in enforcing discipline upon Daffon or that he had waived observance of the rules and
regulations of the school or condoned their non-observance. His absence when the tragedy
happened cannot be considered against him because he was not supposed or required to report to
school on that day. And while it is true that the offending student was still in the custody of the
teacher-in-charge even if the latter was physically absent when the tort was committed, it has not
been established that it was caused by his laxness in enforcing discipline upon the student. On the
contrary, the private respondents have proved that they had exercised due diligence, through the
enforcement of the school regulations, in maintaining that discipline.
4. In the absence of a teacher-in-charge, it is probably the dean of boys who should be held liable
especially in view of the unrefuted evidence that he had earlier confiscated an unlicensed gun from
one of the students and returned the same later to him without taking disciplinary action or reporting
the matter to higher authorities. While this was clearly negligence on his part, for which he deserves
sanctions from the school, it does not necessarily link him to the shooting of Amador as it has not
been shown that he confiscated and returned pistol was the gun that killed the petitioners' son.

5. Finally, as previously observed, the Colegio de San Jose-Recoletos cannot be held directly liable
under the article because only the teacher or the head of the school of arts and trades is made
responsible for the damage caused by the student or apprentice. Neither can it be held to answer for
the tort committed by any of the other private respondents for none of them has been found to have
been charged with the custody of the offending student or has been remiss in the discharge of his
duties in connection with such custody.

In sum, the Court finds under the facts as disclosed by the record and in the light of the principles
herein announced that none of the respondents is liable for the injury inflicted by Pablito Damon on
Alfredo Amadora that resulted in the latter's death at the auditorium of the Colegio de San Jose-
Recoletos on April 13, 1972. While we deeply sympathize with the petitioners over the loss of their
son under the tragic circumstances here related, we nevertheless are unable to extend them the
material relief they seek, as a balm to their grief, under the law they have invoked.

WHEREFORE, the petition is DENIED, without any pronouncement as to costs. It is so ordered.

G.R. No. 88979 February 7, 1992

LYDIA O. CHUA, petitioner,


vs.
THE CIVIL SERVICE COMMISSION, THE NATIONAL IRRIGATION ADMINISTRATION and THE
DEPARTMENT OF BUDGET AND MANAGEMENT, respondents.

PADILLA, J.:

Pursuant to the policy of streamlining and trimming the bureaucracy, Republic Act No. 6683 was
approved on 2 December 1988 providing for benefits for early retirement and voluntary separation
from the government service as well as for involuntary separation due to reorganization. Deemed
qualified to avail of its benefits are those enumerated in Sec. 2 of the Act, as follows:

Sec. 2. Coverage. This Act shall cover all appointive officials and employees of
the National Government, including government-owned or controlled corporations
with original charters, as well as the personnel of all local government units. The
benefits authorized under this Act shall apply to all regular, temporary, casual and
emergency employees, regardless of age, who have rendered at least a total of two
(2) consecutive years of government service as of the date of separation. Uniformed
personnel of the Armed Forces of the Philippines including those of the PC-INP are
excluded from the coverage of this Act.

Petitioner Lydia Chua believing that she is qualified to avail of the benefits of the program, filed an
application on 30 January 1989 with respondent National Irrigation Administration (NIA) which,
however, denied the same; instead, she was offered separation benefits equivalent to one half (1/2)
month basic pay for every year of service commencing from 1980. A recourse by petitioner to the
Civil Service Commission yielded negative results. 1 Her letter for reconsideration dated 25 April 1989
pleaded thus:

xxx xxx xxx

With due respect, I think the interpretation of the Honorable Commissioner of RA


6683 does not conform with the beneficent purpose of the law. The law merely
requires that a government employee whether regular, temporary, emergency, or
casual, should have two consecutive years of government service in order to be
entitled to its benefits. I more than meet the requirement. Persons who are not
entitled are consultants, experts and contractual(s). As to the budget needed, the law
provides that the Department of Budget and Management will shoulder a certain
portion of the benefits to be allotted to government corporations. Moreover,
personnel of these NIA special projects art entitled to the regular benefits, such (sic)
leaves, compulsory retirement and the like. There is no reason why we should not be
entitled to RA 6683.

xxx xxx xxx 2

Denying the plea for reconsideration, the Civil Service Commission (CSC) emphasized:

xxx xxx xxx

We regret to inform you that your request cannot be granted. The provision of
Section 3.1 of Joint DBM-CSC Circular Letter No. 89-1 does not only require an
applicant to have two years of satisfactory service on the date of
separation/retirement but further requires said applicant to be on a casual,
emergency, temporary or regular employment status as of December 2, 1988, the
date of enactment of R.A. 6683. The law does not contemplate contractual
employees in the coverage.

Inasmuch as your employment as of December 31, 1988, the date of your separation
from the service, is co-terminous with the NIA project which is contractual in nature,
this Commission shall sustain its original decision.

xxx xxx xxx 3

In view of such denial, petitioner is before this Court by way of a special civil action for certiorari,
insisting that she is entitled to the benefits granted under Republic Act No. 6683. Her arguments:

It is submitted that R.A. 6683, as well as Section 3.1 of the Joint DBM-CSC Circular
Letter No. 89-1 requires an applicant to be on a casual, emergency, temporary or
regular employment status. Likewise, the provisions of Section 23 (sic) of the Joint
DBM-CSC Circular Letter No. 88-1, implementing guidelines of R.A. No. 6683,
provides:

"2.3 Excluded from the benefits under R.A. No. 6683 are the
following:

a) Experts and Consultants hired by agencies for a limited period to


perform specific activities or services with a definite expected
output: i.e. membership in Task Force, Part-Time,
Consultant/Employees.

b) Uniformed personnel of the Armed Forces of the Philippines


including those of the Philippine Constabulary and Integrated
National Police (PC-INP).

c) Appointive officials and employees who retire or elect to be


separated from the service for optional retirement with gratuity under
R.A. No. 1616, 4968 or with pension under R.A. No. 186, as
amended by R.A. No. 6680 or P.D. No. 1146, an amended, or vice-
versa.

d) Officials and employees who retired voluntarily prior to the


enactment of this law and have received the corresponding benefits
of that retirement/separation.

e) Officials and employees with pending cases punishable by


mandatory separation from the service under existing civil service
laws, rules and regulations; provided that if such officials and
employees apply in writing within the prescriptive period for the
availment of the benefits herein authorized, shall be allowed only if
acquitted or cleared of all charges and their application accepted and
approved by the head of office concerned."

Based on the above exclusions, herein petitioner does not belong to any one of
them. Ms. Chua is a full time employee of NIA entitled to all the regular benefits
provided for by the Civil Service Commission. She held a permanent status as
Personnel Assistant A, a position which belongs to the Administrative Service. . . . If
casuals and emergency employees were given the benefit of R.A. 6683 with more
reason that this petitioner who was holding a permanent status as Personnel
Assistant A and has rendered almost 15 years of faithful, continuous service in the
government should be similarly rewarded by the beneficient (sic) purpose of the
law. 4

The NIA and the Civil Service Commission reiterate in their comment petitioner's exclusion from the
benefits of Republic Act No. 6683, because:

1. Petitioner's employment is co-terminous with the project per appointment papers kept by the
Administrative Service in the head office of NIA (the service record was issued by the Watershed
Management and Erosion Control Project (WMECP), Pantabangan, Nueva Ecija). The project,
funded by the World Bank, was completed as of 31 December 1988, after which petitioner's position
became functus officio.

2. Petitioner is not a regular and career employee of NIA her position is not included in its regular
plantilla. She belongs to the non-career service (Sec. 6, P.D. No. 807) which is inherently short-lived,
temporary and transient; on the other hand, retirement presupposes employment for a long period.
The most that a non-career personnel can expect upon the expiration of his employment is financial
assistance. Petitioner is not even qualified to retire under the GSIS law.

3. Assuming arguendo that petitioner's appointment is permanent, security of tenure is available only
for the term of office (i.e., duration of project).
4. The objective of Republic Act No. 6683 is not really to grant separation or retirement benefits but
reorganization 5 to streamline government functions. The application of the law must be made consistent
with the purpose for which it was enacted. Thus, as the expressed purpose of the law is to reorganize the
government, it will not have any application to special projects such as the WMECP which exists only for
a short and definite period. This being the nature of special projects, there is no necessity for offering its
personnel early retirement benefits just to induce voluntary separation as a step to reorganization. In fact,
there is even no need of reorganizing the WMECP considering its short and limited life-span. 6

5. The law applies only to employees of the national government, government-owned or controlled
corporations with original charters and local government units.

Due to the impossibility of reconciling the conflicting interpretations of the parties, the Court is called
upon to define the different classes of employees in the public sector (i.e. government civil servants).

Who are regular employees? The Labor Code in Art. 280 (P.D. No. 492, as amended) deems an
employment regular where the employee has been engaged to perform activities which are usually
necessary or desirable in the usual business or trade of the employer. No equivalent definition can
be found in P.D.No. 807 (promulgated on 6 October 1975, which superseded the Civil Service Act of
1965 R.A. No. 2260) or in the Administrative Code of 1987 (Executive Order No. 292 promulgated
on 25 July 1987). The Early Retirement Law itself (Rep. Act No. 6683) merely includes such class of
employees (regular employees) in its coverage, unmindful that no such specie is employed in the
public sector.

The appointment status of government employees in the career service is classified as follows:

1. permanent one issued to a person who has met the requirements of the position to which
appointment is made, in accordance with the provisions of the Civil Service Act and the Rules and
Standards promulgated in pursuance thereof; 7

2. temporary In the absence of appropriate eligibles and it becomes necessary in the public
interest to fill a vacancy, a temporary appointment should be issued to a person who meets all the
requirements for the position to which he is being appointed except the appropriate civil service
eligibility: Provided, That such temporary appointment shall not exceed twelve months, but the
appointee may be replaced sooner if a qualified civil service eligible becomes available. 8

The Administrative Code of 1987 characterizes the Career Service as:

(1) Open Career positions for appointment to which prior qualification in an


appropriate examination is required;

(2) Closed Career positions which are scientific, or highly technical in nature; these
include the faculty and academic staff of state colleges and universities, and
scientific and technical positions in scientific or research institutions which shall
establish and maintain their own merit systems;

(3) Positions in the Career Executive Service; namely, Undersecretary, Assistant


Secretary, Bureau Director, Assistant Bureau Director, Regional Director, Assistant
Regional Director, Chief of Department Service and other officers of equivalent rank
as may be identified by the Career Executive Service Board, all of whom are
appointed by the President.
(4) Career officers, other than those in the Career Executive Service, who are
appointed by the President, such as the Foreign Service Officers in the Department
of Foreign Affairs;

(5) Commission officers and enlisted men of the Armed Forces which shall maintain
a separate merit system;

(6) Personnel of government-owned or controlled corporations, whether performing


governmental or proprietary functions, who do not fall under the non-career service;
and

(7) Permanent laborers, whether skilled, semi-skilled, or unskilled. 9

The Non-Career Service, on the other hand, is characterized by:

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

Included in the non-career service are:

1. elective officials and their personal or confidential staff;

2. secretaries and other officials of Cabinet rank who hold their positions at the
pleasure of the President and their personal confidential staff(s);

3. Chairman and Members of Commissions and boards with fixed terms of office and
their personal or confidential staff;

4. contractual personnel or those whose employment in the government is in


accordance with a special contract to undertake a specific work or job requiring
special or technical skills not available in the employing agency, to be accomplished
within a specific period, which in no case shall exceed one year and performs or
accomplishes the specific work or job, under his own responsibility with a minimum of
direction and supervision from the hiring agency.

5. emergency and seasonal personnel. 10

There is another type of non-career employee:

Casual where and when employment is not permanent but occasional,


unpredictable, sporadic and brief in nature (Caro v. Rilloroza, 102 Phil. 70; Manuel v.
P.P. Gocheco Lumber Co., 96 Phil. 945)

Consider petitioner's record of service:

Service with the government commenced on 2 December 1974 designated as a


laborer holdingemergency status with the NIA Upper Pampanga River Project, R
& R Division. 11 From 24 March 1975 to 31 August 1975, she was a research aide
with temporary status on the same project. On 1 September 1975 to 31 December 1976,
she was with the NIA-FES III; R & R Division, then on 1 January 1977 to 31 May 1980,
she was with NIA UPR IIS (Upper Pampanga River Integrated Irrigation Systems)
DRD. On 1 June 1980, she went to NIA W.M.E.C.P. (Watershed Management &
Erosion Control Project) retaining the status of temporary employee. While with this
project, her designation was changed to personnel assistant on 5 November 1981;
starting 9 July 1982, the status became permanent until the completion of the project on
31 December 1988. The appointment paper 12 attached to the OSG's comment lists her
status as co-terminus with the Project.

The employment status of personnel hired under foreign assisted projects is considered co-
terminous, that is, they are considered employees for the duration of the project or until the
completion or cessation of said project (CSC Memorandum Circular No. 39, S. 1990, 27 June 1990).

Republic Act No. 6683 seeks to cover and benefits regular, temporary,
casual and emergency employees who have rendered at least a total of two (2) consecutive years
government service.

Resolution No. 87-104 of the CSC, 21 April 1987, provides:

WHEREAS, pursuant to Executive Order No. 966 dated June 22, 1984, the Civil
Service Commission is charged with the function of determining creditable services
for retiring officers and employees of the national government;

WHEREAS, Section 4 (b) of the same Executive Order No. 966 provides that all
previous services by an officer/employee pursuant to a duly approved appointment to
a position in the Civil Service are considered creditable services, while Section 6 (a)
thereof states that services rendered oncontractual, emergency or casual status are
non-creditable services;

WHEREAS, there is a need to clarify the aforesaid provisions inasmuch as some


contractual, emergency or casual employment are covered by contracts or
appointments duly approved by the Commission.

NOW, therefore, the Commission resolved that services rendered on contractual,


emergency or casual status, irrespective of the mode or manner of payment therefor
shall be considered as creditable for retirement purposes subject to the following
conditions: (emphasis provided)

1. These services are supported by approved appointments, official


records and/or other competent evidence. Parties/agencies
concerned shall submit the necessary proof of said services;

2. Said services are on full time basis and rendered prior to June 22,
1984, the effectivity date of Executive Order No. 966; and

3. The services for the three (3) years period prior to retirement are
continuous and fulfill the service requirement for retirement.

What substantial differences exist, if any, between casual, emergency, seasonal, project, co-
terminous or contractual personnel? All are tenurial employees with no fixed term, non-career, and
temporary. The 12 May 1989 CSC letter of denial 13 characterized herein petitioner's employment
as co-terminous with the NIA project which in turn was contractual in nature. The OSG says petitioner's
status is co-terminous with the Project. CSC Memorandum Circular No. 11, series of 1991 (5 April 1991)
characterizes the status of a co-terminous employee

(3) Co-terminous status shall be issued to a person whose entrance in the service is
characterized by confidentiality by the appointing authority or that which is subject to
his pleasure or co-existent with his tenure.

The foregoing status (co-terminous) may be further classified into the following:

a) co-terminous with the project When the appointment is co-


existent with the duration of a particular project for which purpose
employment was made or subject to the availability of funds for the
same;

b) co-terminous with the appointing authority when appointment is


co-existent with the tenure of the appointing authority.

c) co-terminous with the incumbent when appointment is co-


existent with the appointee, in that after the resignation, separation or
termination of the services of the incumbent the position shall be
deemed automatically abolished; and

d) co-terminous with a specific period, e.g. "co-terminous for a period


of 3 years" the appointment is for a specific period and upon
expiration thereof, the position is deemed abolished.

It is stressed, however, that in the last two classifications (c) and (d), what is termed
co-terminous is the position, and not the appointee-employee. Further, in (c) the
security of tenure of the appointee is guaranteed during his incumbency; in (d) the
security of tenure is limited to a specific period.

A co-terminous employee is a non-career civil servant, like casual and emergency employees. We
see no solid reason why the latter are extended benefits under the Early Retirement Law but the
former are not. It will be noted that Rep. Act No. 6683 expressly extends its benefits for early
retirement to regular, temporary, casual andemergency employees. But specifically excluded from
the benefits are uniformed personnel of the AFP including those of the PC-INP. It can be argued
that, expressio unius est exclusio alterius. The legislature would not have made a specific
enumeration in a statute had not the intention been to restrict its meaning and confine its terms and
benefits to those expressly mentioned 14 or casus omissus pro omisso habendus est A person,
object or thing omitted from an enumeration must be held to have been omitted intentionally. 15 Yet
adherence to these legal maxims can result in incongruities and in a violation of the equal protection
clause of the Constitution.

The case of Fegurin, et al. v. NLRC, et al., 16 comes to mind where, workers belonging to a work pool,
hired and re-hired continuously from one project to another were considered non-project-regular and
permanent employees.

Petitioner Lydia Chua was hired and re-hired in four (4) successive projects during a span of fifteen
(15) years. Although no proof of the existence of a work pool can be assumed, her service record
cannot be disregarded.
Art. III, Sec. 1 of the 1987 Constitution guarantees: "No person shall be deprived of life, liberty, or
property without due process of law, nor shall any person be denied the equal protection of the
laws."

. . . In Felwa vs. Salas, L-26511, Oct. 29, 1966, We ruled that the equal protection
clause applies only to persons or things identically situated and does not bar a
reasonable classification of the subject of legislation, and a classification is
reasonable where (1) it is based on substantial distinctions which make real
differences; (2) these are germane to the purpose of the law; (3) the classification
applies not only to present conditions but also to future conditions which are
substantially identical to those of the present; (4) the classification applies only to
those who belong to the same class. 17

Applying the criteria set forth above, the Early Retirement Law would violate the equal protection
clause were we to sustain respondents' submission that the benefits of said law are to be denied a
class of government employees who are similarly situated as those covered by said law. The maxim
of Expressio unius est exclusio alterius should not be the applicable maxim in this case but the
doctrine of necessary implication which holds that:

No statute can be enacted that can provide all the details involved in its application.
There is always an omission that may not meet a particular situation. What is
thought, at the time of enactment, to be an all-embracing legislation may be
inadequate to provide for the unfolding events of the future. So-called gaps in the law
develop as the law is enforced. One of the rules of statutory construction used to fill
in the gap is the doctrine of necessary implication. The doctrine states that what is
implied in a statute is as much a part thereof as that which is expressed. Every
statute is understood, by implication, to contain all such provisions as may be
necessary to effectuate its object and purpose, or to make effective rights, powers,
privileges or jurisdiction which it grants, including all such collateral and subsidiary
consequences as may be fairly and logically inferred from its terms. Ex necessitate
legis. And every statutory grant of power, right or privilege is deemed to include all
incidental power, right or privilege. This is so because the greater includes the lesser,
expressed in the Maxim, in eo plus sit, simper inest et minus. 18

During the sponsorship speech of Congressman Dragon (re: Early Retirement Law), in response to
Congressman Dimaporo's interpellation on coverage of state university employees who are
extended appointments for one (1) year, renewable for two (2) or three (3) years, 19 he explained:

This Bill covers only those who would like to go on early retirement and voluntary
separation. It is irrespective of the actual status or nature of the appointment one
received, but if he opts to retire under this, then he is covered.

It will be noted that, presently Pending in Congress, is House Bill No. 33399 (a proposal to extend
the scope of the Early Retirement Law). Its wording supports the submission that Rep. Act No. 6683
indeed overlooked a qualified group of civil servants. Sec. 3 of said House bill, on coverage of early
retirement, would provide:

Sec. 3. Coverage. It will cover all employees of the national government, including
government-owned or controlled corporations, as well as the personnel of all local
government units. The benefits authorized under this Act shall apply to all regular,
temporary, casual, emergency and contractual employees, regardless of age, who
have rendered at least a total of two (2) consecutive years government service as of
the date of separation. The term "contractual employees" as used in this Act does
not include experts and consultants hired by agencies for a limited period to perform
specific activities or services with definite expected output.

Uniformed personnel of the Armed Forces of the Philippines, including those of the
PC-INP are excluded from the coverage of this Act. (emphasis supplied)

The objective of the Early Retirement or Voluntary Separation Law is to trim the bureaucracy, hence,
vacated positions are deemed abolished upon early/voluntary retirement of their occupants. Will the
inclusion of co-terminous personnel (like the petitioner) defeat such objective? In their case, upon
termination of the project and separation of the project personnel from the service, the term of
employment is considered expired, the officefunctus officio. Casual, temporary and contractual
personnel serve for shorter periods, and yet, they only have to establish two (2) years of continuous
service to qualify. This, incidentally, negates the OSG's argument that co-terminous or project
employment is inherently short-lived, temporary and transient, whereas, retirement presupposes
employment for a long period. Here, violation of the equal protection clause of the Constitution
becomes glaring because casuals are not even in the plantilla, and yet, they are entitled to the
benefits of early retirement. How can the objective of the Early Retirement Law of trimming the
bureaucracy be achieved by granting early retirement benefits to a group of employees (casual)
without plantilla positions? There would, in such a case, be no abolition of permanent positions or
streamlining of functions; it would merely be a removal of excess personnel; but the positions
remain, and future appointments can be made thereto.

Co-terminous or project personnel, on the other hand, who have rendered years of continuous
service should be included in the coverage of the Early Retirement Law, as long as they file their
application prior to the expiration of their term, and as long as they comply with CSC regulations
promulgated for such purpose. In this connection, Memorandum Circular No. 14, Series of 1990 (5
March 1990) implementing Rep. Act No. 6850, 20 requires, as a condition to qualify for the grant of
eligibility, an aggregate or total of seven (7) years of government service which need not be continuous,
in the career or non-career service, whether appointive, elective, casual, emergency, seasonal,
contractualor co-terminous including military and police service, as evaluated and confirmed by the Civil
Service Commission. 21 A similar regulation should be promulgated for the inclusion in Rep. Act No. 6683
of co-terminous personnel who survive the test of time. This would be in keeping with the coverage of "all
social legislations enacted to promote the physical and mental well-being of public servants" 22 After
all, co-terminous personnel, are also obligated to the government for GSIS contributions, medicare and
income tax payments, with the general disadvantage of transience.

In fine, the Court believes, and so holds, that the denial by the respondents NIA and CSC of
petitioner's application for early retirement benefits under Rep. Act No. 6683 is unreasonable,
unjustified, and oppressive, as petitioner had filed an application for voluntary retirement within a
reasonable period and she is entitled to the benefits of said law. While the application was filed after
expiration of her term, we can give allowance for the fact that she originally filed the application on
her own without the assistance of counsel. In the interest of substantial justice, her application must
be granted; after all she served the government not only for two (2) years the minimum
requirement under the law but for almost fifteen (15) years in four (4) successive governmental
projects.

WHEREFORE, the petition is GRANTED.

Let this case be remanded to the CSC-NIA for a favorable disposition of petitioner's application for
early retirement benefits under Rep. Act No. 6683, in accordance with the pronouncements in this
decision.
SO ORDERED.

Narvasa, C.J., Melencio-Herrera, Cruz, Paras, Feliciano, Bidin, Grio-Aquino, Medialdea, Regalado,
Davide, Jr., Romero and Nocon, JJ., concur.

G.R. No. L-5127 May 27, 1953

PEDRO BATUNGBAKAL, plaintiff-appellee,


vs.
NATIONAL DEVELOPMENT COMPANY and MANUEL AGREGADO, as Auditor General of the
Philippines,defendants-appellants.

Government Corporate Counsel Pompeyo Diaz, Assistant Attorney Leovigildo Monasterial and Juan
T. Alano for appellant.
Jose M. Casal for appellee.

MONTEMAYOR, J.:

This is an appeal by the National Development Company (NDC) and Manuel Agregado as Auditor
General of the Philippines from a decision of the Court of First Instance of Manila ordering the
appellants to reinstate the plaintiff-appellee Pedro Batungbakal in his former position as property
examiner in the Comptroller's office in the NDC, with a salary of P2,040 per annum, the
compensation he was receiving when he was suspended on December 31, 1946, and further
ordering that he be paid his back salary at the rate of P2,040 per annum from the date of his
suspension up to the date of his reinstatement, deducting therefrom whatever amount he still owed
the NDC. The appeal having been taken direct to this court, only questions of law may be raised and
the finding of facts made by the trial court are binding on the parties and on this tribunal. The facts
as found by the lower court may be briefly stated as follows.

On February 14, 1939, plaintiff Pedro Batungbakal was appointed by the Auditor General as cash
and property examiner in the office of the Comptroller of the NDC. Shortly before the Pacific was the
position of cash and property examiner was divided into two, namely, cash examiner and property
examiner, Batungbakal retaining the position of property examiner. Around October of 1944 he went
on leave.

When the NDC was reopened in March, 1945, Batungbakal and some other employees in the
Comptroller's office were recalled to duty. The Comptoller was under the supervision of the Auditor
General but his salary and those of his personnel were paid by the NDC. Since the reorganization of
the NDC it became the practice that only the Comptroller was appointed by the Auditor General with
the approval of the Board of Directors of the Company while the personnel in his office were
appointed by the company itself.

On August 24, 1945, Batungbakal was appointed by the Chairman of the Board of Directors and
Acting General Manager of the NDC as property examiner in said company with a salary of P100 a
month; he was promoted in salary to P2,040 a year effective April 1, 1946, in the same position of
property examiner by appointment dated March 30, 1946, signed by the Acting General Manager of
the NDC.

On December 31, 1946, Batungbakal was suspended from office as property examiner by the
Investigating Committee created by Administrative Order No. 39 of the President of the Philippines,
and on April 17, 1947, he received from the officer in charge of the NDC notice of his dismissal. Said
notice reads as follows:
Pursuant to the instruction of the Chief of the Executive Office, I have the honor to inform you
that according to the report of the Investigation Committee which was created under
Administrative Order No. 39 of His Excellency, the President of the Philippines to investigate
the business affairs and operations of the National Development Company, you have been
found to have committed gross negligence in the performance of your duties to the detriment
of this Company. The said Committee likewise found that irregularities committed by you
constitute acts and ommission which made possible the ommission of irregularities in the
disposal of yarns either in the names of fictitious buyers or through dummies, contrary to the
policy of this Company.

On May 28, 1947, Batumbakal filed a petition for reconsideration with the Office of the President; the
matter was referred to Hon. Sixto de la Costa as Chairman of the Investigating Committee.

On December 4, 1948, the Investigating Committee of the NDC under the Chairmanship of
Honorable e la Costa submittee to the President of the Philippines through the Secretary of Justice
its report of the investigation which ends thus:

In view of the foregoing, the committee reconsiders its previous findings, declaring that
Batungbakal and de la Cruz have not committed negligence in the discharge of their duties,
and therefore recommends their reinstatement to the service of the National Development
Company.

On August 17, 1949, the Secretary of Justice forwarded the said report together with other pertinent
papers to the Office of the President with the following recommendation:

In view of the foregoing, the undersigned recommends that: (1) Mr. Pedro Batungbakal be
reinstated with the warning that, as representative of the Comptroller, which included the
auditing department, he was bound by the rules, regulations and instructions issued by the
Management of the National Development Company and his failure hereafter to comply with
these rules, regulations and instructions will be more severely dealt with; . . . "t" (Exhibit A).

On September 5, 1949, the Office of the President of the Philippines referred the matter to the
General Manager of the NDC through the Chairman of the Control Committee, Government
Enterprise Council (GEC) for appropriate action.

On October 14, 1949, the Executive Vice-Chairman of the Control Committee of the GEC forwarded
the papers to the General Manager of the NDC with the following statements:

The Control Committee, GEC, hereby concurs in the view of the Secretary of Justice stated
in the preceding second endorsement exonerating Messrs. Pedro Batungbakal and
Sisenando de la Cruz of the charge of gross negligence in the performance of their duties
since the evidence gathered by the Investigating Committee headed by Judge de la Costa
shows that they did not know of the existence of the instructions contained in the
memorandum order of the Management dated June 13, 1946 and the goods sold by the
National Development Company were delivered to an authorize representative of the party to
whom the goods were sold. (See Exhibit 2-A of the respondent Auditor General.)

On October 27, 1949, the Technical Assistant (Legal Credit and Collection) of the NDC wrote a letter
to the Auditor General through the Auditor of the NDC, wherein after giving a brief statement of the
case of Batungbakal including the findings and recommendation of the Investigation Committee and
the recommendation of the Secretary of Justice for the reinstatement of Batungbakal, he requested
the opinion of the Auditor General as to whether or not Batungbakal was entitled to his backpay from
the date of his suspension to the date of his reisntatement.

The Auditor of the NDC in his first indorsement to the Auditor General among other things said:

Obviously, the reinstatement of Mr. Batungbakal in the Office of the Auditor of the National
Development Company is no longer feasible, because there is no vacancy for the position of
"property examiner" formerly held by him. . . .

xxx xxx xxx

However, in view of the recommendation of the Secretary of Justice in this case, this Office
believes that no objection may interposed to the reinstatement of Mr. Batungbakal in the
National Development provided that the same is not made to any position under the
jurisdiction of the General Auditing Office.

xxx xxx xxx

Accordingly, it is believed that Mr. Batungbakal is not entitled to any salary from the time of
his suspension or dismissal to the date of his resinstatement or appointment to a position
different from that held by him when he was suspended and later dismissed from office.

On February 15, 1960, the Auditor General returned the papers of Batungbakal of the NDC with the
following statement:

In view of the foregoing circumstances surroundings the case of Mr. Pedro Batungbakal and
the fact that his reinstatement to the position formerly held by him in that office is no longer
feasible, this Office recommends that anew position be created in the National Development
Company to which he may be reinstated, provided it will not be in the Auditing Department.

With reference to his claim for salary, this Office will offer no objection to the payment thereof
from the ate of his suspension on December 31, 1946, to the date of his dismissal on April
17, 1957 (Exhibit 1-AG).

On April 15, 1950, the Secretary of the Board of Directors of the NDC wrote to Batungbakal
informing him that the Board of Directors of the NDC in its meeting of April 12, 1950, has authorized
the payment of his salary during the period of his suspension from December 31, 1946 to the date of
his dismissal on April 17, 1947, as recommended by the Auditor General, and that the Board
likewise authorized his reappointment to any suitable position in the NDC. His backpay from
December 31, 1946 up to April 17, 1947 amounting to P689 was applied to the sum of P1,392.42
(should be P1,394.42), leaving an unpaid balance of P705.42.

On August 15, 1950, the Acting Secretary of Economic Coordination replying to a letter of counsel
for Batungbakal said that he approved the action taken by the Board of Directors of the NDC
reiterating its previous resolution that it had no objection to the re-employment of Batungbakal to any
suitable position in the NDC but stating however that it was not possible to re-employ him at that
time because his former item was already occupied by someone else, and that there were no vacant
item to which he could be appointed.

On October 2, 1950, Batungbakal wrote to the Chairman of the Board of Directors of the NDC,
requesting his resinstatement in the service of the company and the payment to him of all his salary
up to the date of his resinstatement. Acting upon this request the Board of Directors of the NDC in its
meeting held October 8, 1950 authorized his reinstatement as previously approved by said Board on
April 12, 1950 provided that "he renounce his right to claim for the payment of his back salary, and
authorized the Acting General Manager to look for a suitable position for him in the National
Shipyard & Graving Dock Department."

On November 4, 1950, Batungbakal through counsel informed the General Manager of the NDC that
he declined to accept any position other than the one formerly occupied by him and requested that
his back salary be paid to him as soon as possible.

In its meeting of November 8, 1950, the Board of Directors of the NDC approved Batungbakal's
request for the payment of his salary amounting to P 7,820 as of October 31, 1950, and appropriated
the necessary sum therefore, subject to the final approval of the GEC and the Auditor General
provided Batungbakal relinquished his right to reinstatement in the service of the NDC.

On November 17, 1950, the Acting General Manager of the NDC wrote to the Secretary of Economic
Coordination transmitting excerpts from the minutes of the meeting of the NDC held on November 8,
1950, for his final approval at the same time informing Batugbakal's counsel of his action.

In a memorandum to the Auditor General dated December 29, 1950, the Chief Law Officer, after
discussing the fact of the case of Batungbakal stated his opinion that the action of the Board of
Directors of the NDC authorizing the payment of back salaries to Batungbakal was legally justified
for the reason that Batungbakal had not been suspended and dismissed for cause, and that as an
employee of the NDc which is an agency of the Government he could not be removed except for
cause. The Senior Attorney of the same office in another memorandum to the Auditor General on
the same matter said that he had an interview with counsel of Batungbakal regarding the latter's
claim for back salary, and made reference to efforts of the Auditor's office towards a compromise
and stated his belief that the full back salary of Batungbakal could legally be paid by the Government
because it covered a period of only three years, and that there was a precedent to support it,
namely, that of Severo Yap, former Superintendent of the of about of Prisons who was paid his back
salary for a period of about five years during his suspension, and he expressed his belief that the
office may not insist on further compromise.

On February 7, 1951, the Auditor General by his 2nd indorsement returned to the Administrator of
Economic Coordination the resolution adopted by the Board of Directors of the NDC on November 8,
1950, authorizing the payment to Batungbakal of the sum of P7,820 as back salary from December
31, 1946 to October 31, 1950 with the following comment and recommendation:

This office finds no specific provision of law under which payment to Mr. Batungbakal of the
aforesaid amount of P7,820 may be authorized. The provisions of section 260 of the Revised
Administrative Code which authorizes payment to a suspended employee of his full salary
corresponding to the whole period of his suspension upon his exoneration or reinstatement
may not be applied in the instant case because, as will be noted from the facts stated in the
within letter of Mr. Batungbakal, dated October 2, 1950, he was not merely suspended from
office but also dismissed from the service.

In the case, however, of employees who were dismissed from the service by the
Commissioner of Civil Service but subsequently exonerated upon appeal to the Civil Service
Board of Appeals, it was ruled by the President as a matter of policy that payment of their
salary for the period they were out of the service shall be discretionary on the part of the
Department Head concerned. This ruling, it is believed, may be followed in the instant case.
In view of the precarious financial condition of the National Development Company, the
undersigned, pursuant to the aforesaid ruling, hereby authorizes the payment to Mr.
Batungbakal of his salary corresponding only to the period from the date of his suspension
on December 31, 1946 to December 31, 1947.

On April 12, 1950, the Administrator of Economic Coordination in his 3rd indorsement, returned said
resolution to the General Manager of the NDC informing him that in view of the reasons stated in the
preceding indorsement, his office had no objection to the payment of the salary of Batungbakal from
December 31, 1946 to December 31, 1947.

On the basis of the facts above recited, Batungbakal apparently dissatisfied if not disgusted with the
treatment accorded him, filed this case in the Court of First Instance of Manila against the NDC and
Manuel Agregado as Auditor General with the following prayer:

Wherefore plaintiff prays this Honorable court:

(a) In the first cause of action, to order the officer-in-charge of the defendant NDC to
reinstate the plaintiff into the service without any condition or qualification whatsoever;

(b) In the second cause of action, to order the Auditor General to approve the claim of the
plaintiff for his back salary from the time he was suspended on December 31, 1946 up to the
time that he would be reinstated, and also to order the officer-in-charge of the NDC to pay
the back salaries of plaintiff for the above-stated period at the rate of P2,040 per annum;

(c) To order the defendants to pay the plaintiff the sum of five thousand pesos (P5,000)
representing damages and attorney's fees and also to order the defendants to pay the costs
of this suit; and

(d) To grant the plaintiff all other just and equitable relief.

The defendants each filed an answer. Hearing was had on the preliminary issue raised by the
Auditor General in his answer to the effect that the court had no jurisdiction to entertain plaintiff's
cause of action against the Auditor General whose decisions are appealable only to the President of
the Philippines or to Supreme Court defending on whether the aggrieved party is a government
officer or a private person, citing Article XI, section 3, of the Constitution, Commonwealth Act 327,
and Rule 45 of the Rules of Court. The Auditor General further claimed that his right and duty to
appoint personnel and to approve accounts was discretionary on his part and could not be limited or
compelled by mandamus.

Ruling, that the court had jurisdiction, it ordered the case to be tried on its merits. After trial the lower
court presided by Judge Fidel Ibaez rendered the decision now appealed from as related at the
beginning of this opinion.

To determine the right of plaintiff Batungbakal to reinstatement and to back salaries, it is necessary
to ascertain his status as an employee. Altho his salary was paid by the NDC, nevertheless, he was
appointed by the Auditor General who under section 548 of the Administrative Code, is ex
officio auditor of corporations like the NDC wherein the Government of the Philippines owns the
majority stock. As such ex officio auditor, the Auditor General is authorized to appoint his
representative in the said corporation as well as to appoint and fix the salary and the number of
personnel to assist said representative in said work. Batungbakal was such employee in the office of
the comptroller or auditor of the NDC, under the control of the Auditor General. Although after the
reorganization of the NDC it became the practice for the NDC itself to appoint personnel in the office
of the comptroller or company auditor, nevertheless, the practice cannot override or supplant the
legal provisions of the law, much lees affect the status of such personnel.

In an opinion rendered by the Secretary of Justice in his second indorsement of July 27, 1949,
requested by the Auditor General, the said Secretary said that the auditor General controlled
corporations referring to the Cebu Portland Cement Co. (which has the same status as the NDC as
well as their subordinates are not corporate employees but agents of the Government and therefore
they are embraced in the civil service. According to the Secretary of Justice this view was shared by
the Commissioner of Civil Service himself.

Article XII, section 4, of the Constitution provides that "no officer or employee in the civil service shall
be removed or suspended except for cause as provided by law." Section 694 of the Administrative
Code has a similar provision. Interpreting these two laws, basis and statutory, we have held in the
case of Lacson vs. Romero,1 G.R. No. L-3081, 47 Off. Gaz., 1778 and De los Santos vs.
Mallari2 G.R. No. L-3881, August 31, 1952, that a civil service official may not be removed from office
except for cause. We have here a case of a civil service employee, suspended and later dismissed
without case as shown by the fact that after a reinvestigation he was exonerated and found guiltless
of the charges of gross negligence filed against him, and was even recommended for reinstatement
by the Government Committee that investigated him. In other words, his suspension and removal
were illegal and in violation not only of the Administrative Code but of the Constitution itself. To
remedy the evil and wrong committed, the least that could be done is to restore to him the office and
post of which he had been illegally deprived, and to include in that remedy or redress payment of the
salary which he should have received during this period of illegal suspension and dismissal is far
from unreasonable and unjust.

But the Auditor General contends that under the law which gives him right to appoint the personnel
in the office of the Comptroller of the NDC, he has full discretion to appoint or not to appoint any
person in that office; that as Auditor General vested by the Constitution and section 584 of the
Administrative Code with jurisdiction over the accounts of the Government including claims against
it, he also has full discretion to grant or withhold back salaries corresponding to the period of
suspension or dismissal of an employee appointed by him. It is also claimed that to reinstate
Batungbakal to his former position would mean the removal without cause of the present incumbent.
We cannot agree with Auditor General. His theory and contention if accepted and followed would
lead to an unfortunate and intolerable situation, incongruous with basic principles of justice and the
constitutional protection of civil service employees against Government abuse and unjustified
suspension or removal. Without reference to the present Auditor General, let us imagine in the future
an arbitrary and wrong-minded Auditor General dismissing an employee from his office or in an
office under his control, without cause, and later appointing another person to the same position.
Such dismissed employee may establish to the satisfaction of the Government and the courts that
he was innocent and was dismissed without reason or cause, and yet under the theory afore-
mentioned, such dismissed employee is utterly helpless and without redress because his
reinstatement and the payment of his back salary are wholly within the Auditor General's discretion
which may not be controlled by mandamus to say nothing of the fact that having already filed the
position, there is no vacancy to which the dismissed employee may be re-appointed. The
unreasonables and fallacy of the theory and contention above-mentioned is patently revealed and
brought home by the case just imagined.

When a citizen after due hearing establishes his right in court, said right is paramount and must be
given force and effect. The way must be cleared for its enforcement, and technicalities in procedure,
judicial as well as administrative, must give away.
Having proven that he (the plaintiff) had been suspended and dismissed without cause, contrary to
the express provision of the Constitution, his reinstatement becomes a plain ministerial duty of the
Auditor General, a duty whose performance may be controlled and enjoined by mandamus.3 There is
no room for discretion. The Auditor General is not being directed to perform an act which he may or
may not execute according to his discretion. He is being asked and enjoined to redress a grievance,
to right a wrong done. And the payment of the back salary is merely incidental to and follows
reinstatement, this, aside from the parallel and analogy which may be found in section 260,
paragraph 1, Revised Administrative Code which provides for the payment of back salary upon
reinstatement.

It is further argued that Batungbakal not having appealed from the decision of the Auditor General
denying his claim to reisntatement and payment of back salary, as provided by Article XI, section 3,
of the Constitution, the Jones Law, section 255, Revised Administrative Code, Commonwealth Act
No. 327, section 2 thereof, and Rule 45, of the Rules of Court, said decision has become final and
conclusive upon the executive branches of the Government, and he may not resort to the courts.
This same question was raised and decided in the case of Ynchausti & Co. vs. Wright, 47 Phil., 866,
where it was held that the failure to appeal from the Auditor's decision does not affect claimant's right
of redress in the Courts, and that although the Organic Act provides that the "decision of the Auditor
shall be final and conclusive upon the executive branches of the Government," said Organic ACt
does not provide that said decision shall be final and conclusive upon either the Legislature or the
Judiciary.

As for the contention that for the Auditor General to reinstate the plaintiff would be tantamount to
compelling him to dismiss without cause the present incumbent who was appointed after plaintiff's
dismissal, suffice it to say that in so doing, neither injustice nor violation of law would be committed.
Inasmuch as Batungbakal was illegally suspended and dismissed, legally speaking, his position
never became vacant, hence there was no vacancy to which the present incumbent could be
permanently appointed. In other words, the present incumbent's occupancy of or tenure in said post
is temporary and precarios and does not come within the contemplation of the constitutional
prohibition. But, assuming for the moment that the incumbent's tenure were permanent and that said
tenure fell under the protection of the Constitution, still, his being made to leave the post to give way
to the plaintiff's superior right, may yet be considered as removal for cause, not unlike a case of quo
warranto where a respondent incumbent is ousted by court order to give way to the successful party
or petitioner.

The decision appealed from is affirmed, with costs.

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