G.R. Nos. L-10360 and L-10433. January 17, 1957

On January 1, 1964, the President of the Philippines appointed Vivencio
Alajar as Vice-Mayor of the City of Roxas (Annex D). He took his oath
and assumed office on January 6, 1954; on March 31 of that year, his
appointment was confirmed by the Commission on Appointment (Annex D-1)
and he continued holding office until November, 1955, when he received
a communication from Assistant Executive Secretary Enrique C. Quema
informing him that the President had designated. Juliano Alba in his
stead as Acting Vice-Mayor of the City of Roxas and requesting him to
turn over his said office to Mr. Alba effective immediately. This
communication wherein the President directed the writer thereof to
convey to Mr. Alajar his appreciation for the invaluable services he
had rendered as Vice-Mayor of the City of Roxas (Annex C), was
confirmed by a telegram that Alajar received from the President dated
November 23, 1955 (Annex B).

On the other hand, Executive Secretary Fred Ruiz Castro addressed
Juliano A. Alba a communication through the Mayor of the City of Roxas
wherein Alba was informed that the President has designated him as
Acting Vice-Mayor of the City of Roxas vice Vivencio Alajar, and
instructed/him to qualify and enter upon the performance of the office,
furnishing the Commissioner of Civil Service with the copy of his oath
(Annex A). On November 19, 1955, Juliano A. Alba took his oath and
assumed office (Annex A-l).

 Not satisfied with the action of the President, Vivencio C. Alajar
instituted quo warranto proceedings in the Court of First Instance of Capiz against Juliano A. Alba (Civil Case No. V-2041), contending:

(a) That he was appointed Vice-Mayor of Roxas City on 1
January 1954 and his appointment was confirmed by the Commission on
Appointments on 31 March 1954 and that on 19 November 1955, Juliano A.
Alba usurped the office of Vice Mayor of Roxas City;

(b) That there existed no vacancy of said office at the time oof the
designation by the President of the Philippines of Juliano A. Alba as
Acting Vice-Mayor of Roxas City; and
(c) That there existed no legal cause or reason whatsoever for the
removal or disqualification of said Vivencio C. Alajar by the
appointment of Juliano Alba by the President of the Philippines as
Acting Vice-Mayor of Roxas City.

After proper proceedings and hearing, the parties submitted the case for decision on the only issue of whether the alleged removal
of the petitioner and the designation in his place of respondent as
Vice-Mayor of Roxas Gity was legal or illegal. On this point, the lower
court held; that the petitioner (Vivencio C. Alajar) was “entitled to
remain in office as Vice-Mayor of the City of Roxas with all the
emoluments, rights and privileges appurtenant thereto until he resigns,
dies or is removed for cause. Without costs.” (Decision, Annex C).

From this decision, Juliano A. Alba appealed to Us by filing a notice
of appeal dated February 3, 1956. Four days later, the appeal
notwithstanding, Vivencio Alajar filed a petition (Annex D) praying for
immediate execution of the judgment, and despite the strong opposition
of appellant, the motion was granted by the Court on February 18, 1956
(Annex E), based on the special reasons adduced by the petitioner and

“Moreover, to uphold the supremacy of the law and
constitution, which is the supreme and fundamental authority, pertinent
provisions of which are involved in this case, and considering that the
immediate and positive effect of the motion, if the same is denied, is
to prolong the status of illegality of the appointment of the second
appointee and present incumbent to the position of Vice-Mayor of the
City of Roxas and the question of who is entitled to occupy the same
and to exercise the public function of the office which affects public
interest and public service, this Court, if it is to be consistent with
its pronouncement, conclusion or judgment, as it should be, is
constrained to grant said motion.”

The decision, however, was not executed because the herein petitioner,
Juliano A Alba, brought the matter up to this Superiority praying:

(1) That pending the determination of the validity of the
order of immediate execution, a writ of preliminary injunction be
issued, upon previous filing of the bond fixed by this Honorable Court
by the herein petitioner, restraining the herein respondent Vivencio C.
Alajar from discharging the duties and functions of the Vice-Mayor of
Roxas City in order that the herein petitioner shall continue
unmolested as acting Vice-Mayor of Roxas City until the final
determination of the question of the validity of the order for the
immediate execution of the decision of the trial court;
(2) That after hearing, judgment be rendered declaring null and void
the order of respondent, Hon. Jose D. Evangelista, dated 18 February
1956 for the immediate execution of his decision in the Quo Warranto
Case (Alajar vs.
Alba) on the ground that the same was improperly issued as there
existed no good reason for its issuance as contemplated and provided by
Section 2 of Rule 39 of the Rules of Court.
(3) For such other relief as may be just and equitable in the premises.

In this instance, the Solicitor General requested permission to
intervene in the certiorari case (G. R. No. L-10360), alleging that the
order of immediate execution issued by the trial judge deprived him of
the opportunity to be heard and defend the constitutionality of
Republic Act No. 603 in the lower court and he desires to be heard by
this Court before We proceed to determine the constitutionality of
section of Republic Act No. 603 by the affirmative vote of 8 Justices
thereof (section 23, Rule 3 of the Rules of Court—I Moran, Comments on
the Rules of Court, 1953 ed., p. 111). The stand of the Solicitor
General is that said section, 8 is constitutional (Article VI, section
1 and Article XII, section 1 of the Constitution of the Philippines;
Jover vs. Borra, 49 Off. Gaz., 2765 and enactments of Congress subsequent to the case of Santos vs.
Mallare, 48 Off. Gaz., 1793, etc, decclaring certain position to be
terminable at the pleasure of the appointing authority—section 2545
Revised Administrative Code; Commonwealth Act Nos. 39, 51, 520, 547 and
592; Republic Acts Nos. 162, 170, as amended; 179, as amended; 183,
288, as amended; 305, 306, 327, 328, 521, 523, 525, as amended; 537,
and 603) The motion for intervention of the Solicitor General was
granted by this Court.

In the meanwhile, the appeal of Juliano A. Alba in said case V-2041,
was given due course and reached this Court. In this Instance the
parties have already filed their respective briefs and the case was
submitted for decision at the hearing held on August 3, 1956.
Appellant’s counsel maintains that the trial Court erred:

1. In predicating its decision on the mistaken assumption that the
   petitioner-appellee belongs to the unclassified civil service, an
   assumption which begs the very issue; whether the vice-mayor of Roxas
   City belongs to the unclassified service as claimed by the
   petitioner-appellee;
2. In not declaring without the necesity of making a
   pronouncement of its validity, that section 8 of Republic Act 603 was
   precisely intended by the Congress to exclude the office of vice-mayor
   of Roxas City from persons belonging to the unclassified service under
   section 671 of the Revised Administrative Code, as amended;
3. In not declaring that in the case of Jover vs. Borra (49 Off. Gaz., 2767) the Supreme Court passed upon the validity of section 8 of Republic Act No. 603;
4. In holding that the office of vice-mayor of Roxas City is neither primarily confidential nor policy-determining, and
5. In not holding that section 8 of Republic Act No. 603 is a
   valid exercise of the broad legislative powers vested in the Congress
   of the Philippines by our Constitution.

As the petition for certiorari was admitted and given due course by
this Court and the writ of preliminary injunction prayed for was
issued, We shall confine ourselves to the statement that appeal from a
decision of the Court of First Instance in quo warranto
proceedings is perfected by the mere presentation of the notice of
appeal (sections 16 and 17, Rule 41 of the Rules of Court), and from
that moment “the trial court losses its jurisdiction over the case,
except to issue orders for the protection and preservation of the
rights of the parties which do not involve any matter litigated by the appeal,
and to approve compromises offered by the parties prior to the
transmittal of the record on appeal (which is not required in cases of quo warranto)
to the appellate court” (section 9, Rule 41 of the Rules of Court).
Hence, in the case at bar, the trial court had no jurisdiction to
provide for the issuance of the writ for the advance execution of its
judgment, as it did by order of February 18, 1956 (Annex E).
Consequently, We have to declare that said order is null and void and
of no force and effect and to make permanent the writ of preliminary
injunction iVe have issued at the instance of the herein petitioner.

We will now consider the merits of respondent’s appeal in case G. R.
No. L-10433. The solution of the controversy hinges on the main
question at issue, which may be propounded as follows:

“Section 8 of Republic Act No. 603 creating1 the City of
Boxaa provides that the Vice-Mayor shall be appointed by the President
of the Philippines with the consent of the Commission on Appointments
and shall hold office at the pleasure of the President. In view of this
provision of the law, could the President of the Philippines legally
replace respondent Vivencio C Alajar, with or without cause, by
petitioner Juliano A. Alba?”

Vivencio C. Alajar and judge Jose D. Evangelista maintain of course the
negative side alleging that in the case of De Ios Santos vs. Mallare,
48 Off. Gaz., 1791, a similar provision of the Administrative Code
which prescribes:

“SEC. 2545. Appointment of City Officials.—The
President of the Philippines shall appoint, with the consent of the
Commission on Appointments of the Congress of the Philippines, the
mayor, the vice-mayor * * * and he may REMOVE at pleasure any cf the said officers * * * “,

has been declared incompatible with the constitutional inhibition that
“no officer or employee in the Civil Service shall be removed or
suspended except for cause as provided by law”, because the two
provisions are mutually repugnant and absolutely irreconciliable. In
express terms, one permits what the other in similar manner prohibits.
And the Supreme Court then said “that the particular provisions of law
(section 2545 of the Revised Administrative Code) which gives the Chief
Executive power to remove an officer at pleasure (though not
unconstitutional) have been repealed
by the Constitution and ceased to be operative from the time the latter
went into effect.”

On the other hand, the Solicitor General in his reply memorandum
considers the matter from a different angle. The views expressed by him
therein refer to the tenure of office of public officials. We quote
from said memorandum the following:

“A public office is the right, authority and duty, created
and conferred by law, by which for a given period, either fixed by law
or enduring at the pleasure of the creating power, an
individual is invested with some portion of the sovereign function.of
government, to be exercised by him for the benefit of the public The
individual so invested is a public officer” (7Mechem, Public Officers,
section 1).

“The question is whether an officer appointed for a definite time or
during good behavior, had any vested interest or contract right in his
office, of which Congress could not deprive him. The question is not
novel. There seems to be but little difficulty in deciding that there
was no such interest or right (Grenshaw vs. United States, 134, U. S. 99, 104).

* * * * * * *
“Admittedly, the act of Congress in creating a public office, defining
its powers, functions and fixing the “term” or the period during which
the officer may claim to hold the office as of right and the “tenure”
or the term during which the incumbent actually holds the office, is a
valid and constitutional exercise of legislative power (Article VI,
section 1, Constitution of the Philippines; Jover vs. Borra, G. R. No. L-6782, July 25, 1953; Nueno vs. Angeles, 76 Phil., 12; Francia vs.
Pecson and Subido, 47 Off. Gar., 12 Supp. p. 296). In the exercise of
that power, Congress enacted Republic-Act No. 603 on April 11, 1951,
creating the City of Roxas and providing, among others for the position
of Vice-Mayor and its tenure or period during which the incumbent
Vice-Mayor holds office at the pleasure of the President (section 8, article II, Republic Act No. 603).

“In Jover vs. Borra, supra, this Court through Mr. Justice Padilla, held that;

‘The legislative intent to provide for a fixed period of
office tenure for the Mayor of the City of Iloilo and not to make him
removable at the pleasure of the appointing authority may be inferred
from the fact that whereas the appointment of the Vice-Mayor of the
same city, as provided for in an amendatory act (Republic Act No. 365),
and those of the Mayors and Vice-Mayors of other cities (section 2545,
Rev. Adm. Code; Commonwealth Acts Nos. 39, 51, 338, 520, 547 and 592;
Republic Acts Nos. 162, 170, as amended, 179, as amended; 183, 288, as
amended; 305, 306, 327, 328, 521, 523, 525, as amended; 537 and 603)
are at pleasure, that of the Mayor of the City of Iloilo is for a fixed
period of time, as provided for in the original charter (Commonwealth
Act No. 57), and in this continued unchanged despite subsequent
amendatory acts (Commonwealth Act No. 158; Republic Act Nos. 276 and
365).
“So, the logical inference from the above quoted excerpt of the
decision of this Court promulgated long after the decision rendered in
the case of De los Santos vs. Mallare, supra,
is that Congress can legally and constitutionally make the tenure of
certain officials dependent upon the pleasure of the President.

* * * * * * *“The pervading
error of the respondents lies in the fact that they insist on the act
of the President in designating petitioner Alba in the place of
respondent Alajar as one of removal. The replacement of respondent Alajar is not removal, but an expiration of
its tenure, which is one of the ordinary modes of terminating official
relations. On this score, section 2545 of the Revised Administrative
Code which was declared inoperative in the Santos vs. Mallare case, is different from section 8 of Republic Act No. 603, Section 2545 refers to removal at pleasure while section 8 of Republic Act No. 603 refers to holding office at the pleasure of the President.

“Clearly,
what is involved here is not the question of removal, or whether legal
cause should precede or not that removal. What is involved here is the
creation of an office and the tenure of such office, which has been
made expressly dependent upon the pleasure of the President.

“The cases relied upon by respondents are, therefore, inopposite to the
instant proceedings. For all of them relate to removal of officials in violation of laws which prescribe fixity of term.

“Even
assuming for the moment that the act of replacing Alajar constitutes
removal, the act itself is valid and lawful, for under section 8 of
Republic Act No. 603, no fixity of tenure
has been provided for, and the pleasure of the President has been
exercised in accordance with the policy laid down by Congress therein.

“Thus, in Lacson vs. Roque (49 Off. Gaz., 93, 101-102), this Court made clear that:

‘The most liberal view that can be taken of the power of
the President to remove the Mayor of the City of Manila is that it must
be for cause. Even those who would uphold the legality of the Mayor’s,
suspension do not go so far as to claim power in the Chief Executive to
remove or suspend the Mayor at pleasure. Untramelled discretionary power to remove does not apply to appointed officers whose term of office is definite, much less elective officers. As has been pointedly stated: “Fixity of tenure destroys the power of removal at pleasure otherwise incident to the appointing power; the reason of this rule is the evident repugnance between the fixed term and the power of arbitrary removal. * * *

‘An
inferential authority to remove at pleasure cannot be declared, since
the existence of a defined term, ipso facto, negatives such an 
inference, and implies a contrary presumption, i.e., that the
incumbent shall hold office to the end of his term subject to removal
for cause’. (State ex rel. Gallaghar vs. Brown, 57 Mo. Ap., 302,
expressly adopted by the Supreme Court in State ex rel. vs. Maroney,
191 Mo., 548; etc.)

‘It is only in those cases in which the held at the pleasure of the
appointing power and where the power of removal is exercisable at its
mere discretion, that the officer may be removed without notice or
hearing.’”

“Thus, in Jover vs. Borra, supra, the same rule was reiterated:

‘The legislative intent to provide for a fixed period of office tenure for the Mayor of the City of Iloilo and not to make him removable at the pleasure of the appointing authority may be inferred from the fact that whereas
the appointment of the Vice-Mayor of the same city, as provided for in
an amendatory act (Republic Act No. 365), and those of the Mayors and
Vice-Mayors of other cities (section 2545, Revised Administrative Code;
Commonwealth Acts Nos. 39, 51 338, 520, 547 and 592; Republic Acts Nos.
162; 170, as amended; 179, as amended; 183, 288, as amended; 305; 306;
327; 328; 521; 523; 525, as amended; 537; and 603) are at pleasure,
that of the Mayor of the City of Iloilo is for a fixed period of time,
as provided for in the original charter (Commonwealth Act No. 57), and
this continued unchanged despite subsequent amendatory acts
(Commonwealth Act No. 153; Republic Acts Nos. 276 and 365).’

“It is an established rule that when the law authorizes a superior
officer to remove a subordinate at pleasure his discretion in the
exercise of the power of removal is absolute. As long as the removal is
effected in accordance with the procedure prescribed by law, it may not
be declared invalid by the courts, no matter how reprehensible and
unjust the motives of the removal might be (State vs.
Kennelly, 55 Atl. 555).

“For respondent judge to ignore these judicial doctrines brought to his
attention by petitioner Alba even during the quo warranto proceedings
and in the face of their impressive clarity to rashly resolve his doubt
against the constitutionality of section 8 of Republic Act No. 603 is
to exert his discretion with the greatest measure of abuse as to amount
to lack of jurisdiction (Abad Santos, vs. Tarlac, 38 Off. Gaz., 830).

‘After all the foregoing circumstances are found to be present, it must
be shown that the statute violates
the constitution dearly, palpably, plainly, and in such manner as to
leave no doubt or hesitation in the mind of the court (Sharpless vs. Mayer, 21 Pa. 147).; The court presumes that every statute is valid.
This presumption is based upon the theory of separation of powers which
makes the enactment and repeal of laws exclusively a legislative
function. As Chief Justice Marshall said: “It is but a decent respect
due to the wisdom, the integrity, and the patriotism of the legislative
body, by which any law is passed, to presume in favor of its validity,
until its violation of the constitution is proved beyond all reasonable doubt.” (Darmouth College vs.
Woodward, 4 Wheat, 625.)

“It should be remembered in this connection that before a legislature
passes.a bill, it is presumed that it has decided the measure to be
constitutional; and when the executive approves that bill it is also
presumed that he has been convinced of its validity. Under these
conditions, therefore,
if a statute is reasonably susceptible of two interpretations, one
making it unconstitutional and other valid, it is the duty of the court
to adopt the second construction in order to save the measure. (U. S. vs. Delaware & Hudson Co., 213 U. S. 366.) Sinco, Philippine Political Law, 10 ed., pp. 525-526; Italics supplied.’”

We certainly agree with the foregoing views of the Solicitor General
because they constitute a clear and fair exposition of the law on the
matter. Anyway, the provision of Section 8 of Republic Act No. 603
empowering the President of the Philippines to appoint, with the
consent of the Commission on Appointments, the Vice-Mayor of Roxas
City, the latter to hold office at the pleasure of the President,
can not by any stretch of imagination, be considered unconstitutional
and void.

Wherefore, on the strength of the foregoing considerations, and upon
declaring the order of the Court of February 18, 1956 (Annex E) null
and void and of no effect and upon making permanent the writ of
preliminary injunction issued by this Court in the present case, We
hereby dismiss the quo warranto
proceedings, for respondent Vivencio C. Alajar has no right to continue
occupying the office of Vice-Mayor of Roxas City after the President of
the Philippines, in the exercise of his power of allowing said
respondent to hold office, at his pleasure, displaced him from said
office and designated petitioner Juliano A. Alba as Acfing Vice-Mayor
of said City. Costs in both cases are taxed against Vivencio C. Alajar.

Bengzon, Padilla, Reyes, A., Bautista Angelo, Labrador, Reyes, J. B. L., and Endencia, JJ., concur.

---

CONCURRING
Concepcion, J.:

The majority opinion quotes, with approval, from the memorandum of the
Solicitor General, who states, among other things, “* * * that Congress
can legally and constitutionally make the tenure
of certain officials dependent upon the pleasure of the President”;
that “the replacement of respondent Alajar is not removal but an
expiration of its tenure, which is one of the ordinary modes of
terminating official relations”; and that “what is involved here is the
creation of an office and the tenure of such office, which has been made expressly dependent upon the pleasure of the President”. (Italics supplied.)

I believe that the word “tenure” in the foregoing expressions should be submitted by “term”, for:

“* * * the term of an office must be distinguished from the tenure of the incumbent. The term means the time during which the officer may claim to hold office as of right,
and fixes the interval after which the several incumbents shall succeed
one another. The tenure represents the term during which the incumbent
actually holds the office. The term of office is not affected by the
hold-over. The tenure may be shorter than the term for reasons within
or beyond the power of the incumbent.” Topacio Nueno et al. vs. Angeles, 76 Phil,, .12, 21-22; italics supplied.)

The distinction between “term” and “tenure” is important, for, pursuant
to the Constitution, “no officer or employee in the Civil Service may
be removed or suspended except for cause, as provided by law” (Art.
XII, section 4), and this fundamental principle would be defeated if
Congress could legally make the tenure
of some officials dependent upon the pleasure of the President, by
clothing the latter with blanket authority to replace a public officer
before the expiration of his term.

In the case at bar, the term of respondent Alajar as Vice-Mayor of the City of Roxas is not fixed by law. However, the latter, in effect, vests in the President the power to fix such term.
When, in November, 1955, petitioner Alba was designated as Acting
Vice-Mayor of said City, the term of respondent Alajar was, thereby,
fixed implicitly by the President, in the exercise of his
aforementioned authority. Thus, the term of office of Alajar expired and his right to hold office was extinguished, with the same legal effect as if the term had been fixed by Congress itself. In other words, Alajar was not removed from office, for “to remove an officer is to oust him from office before the expiration
of his term” (Manalang vs. Quitoriano et aL, 50 Off. Gaz., 2515).
Alajar merely lost the right to hold the office of Vice-Mayor of the
City of Roxas by expiration of his term as such.

Subject to the foregoing qualifications, I concur in the opinion penned by Mr. Justice Felix.

Paras, C. J.,and Montemayor, J.,concur.