G.R. No. 12817. April 29, 1960
JULIO D. ENRIQUEZ, SR., REPRESENTING THE LAW FIRM OF ENRIQUEZ & ENRIQUEZ, PETITIONER, VS. HON. PEDRO M. GIMENEZ, IN HIS CAPACITY AS AUDITOR GENERAL OF THE PHILIPPINES, RESPONDENT.
PADILLA, J.:
On 18 June 1955 Republic Act No. 1383 creating the National
Waterworks and Sewerage Authority as a public corporation and vesting
in it the ownership, jurisdiction, supervision and control over all
territory embraced by the Metropolitan Water District as well as all
areas served by existing government-owned waterworks and sewerage and
drainage systems within the boundaries of cities, municipalities, and
municipal districts in the Philippines, and those served by the
Waterworks and Wells and Drills Section of the Bureau of Public Works,
was passed. On 19 September 1955 the President of the Philippines
promulgated Executive Order No. 127 providing, among others, for the
transfer to the National Waterworks and Sewerage Authority of all the
records, properties, machinery, equipment, appropriations, assets,
choses in actions, liabilities, obligations, notes, bonds and all
indebtedness of all government-owned waterworks and sewerage systems in
the provinces, cities, municipalities and municipal districts (51 Off.
Gaz. 4415-4417). On 31 March 1956 the municipal council of Bauan,
Batangas, adopted and passed Resolution No. 152 stating “that it is the
desire of this municipality in this present administration not to
submit our local Waterworks to the provisions of the said Republic Act
No. 1383.” (Annex A.) On 20 April 1956 the municipal mayor transmitted
a copy of Resolution No. 152 to the Provincial Fiscal through the
Provincial Board requesting him to render an opinion on the matter
treated therein and to inform the municipal council whether he would
handle and prosecute its case in court should the council decide to
question and test judicially the legality of Republic Act No. 1383 and
to prevent the National Waterworks and Sewerage Authority from
exercising its authority over the waterworks system of the municipality
(Annex B). On 2 May 1956 the provincial fiscal rendered an opinion
holding that Republic Act No. 1383 is valid and constitutional and
declined to represent the municipality of Bauan in an action to be
brought against the National Waterworks and Sewerage Authority to test
the validity and constitutionality of the Act creating it (Annex C). On
26 May 1956 the municipal council adopted and passed Resolution No. 201
authorizing the municipal mayor to take steps to commence an action or
proceedings in court to challenge the constitutionality of Republic Act
No. 1383 and to engage the services of a special counsel, and
appropriating the sum, of P2,000 to defray the expenses of litigation
and attorney’s fees (Annex D). On 2 June 1956 the municipal mayor wrote
a letter to the petitioner engaging his services as counsel for the
municipality in its contemplated action against the National Waterworks
and Sewerage Authority (Annex F.) On 27 June 1956 the Provincial Board
of Batangas adopted and passed Resolution No. 1829 approving Resolution
No. 201 of the municipal council of Bauan (Annex E). On 28 June 1956
the petitioner wrote to the municipal mayor accepting his offer in
behalf of the municipality under the following terms and conditions:
that his professional services shall commence from the filing of the
complaint up to and including the appeal, if any, to the appellate
courts; that his professional fee shall be P1,500 and payable as
follows: P500 upon the filing of the complaint, P500 upon the
termination of the hearing of the case in the Court of First Instance,
and P500 after judgment shall have become final or, should the judgment
be appealed, after the appeal shall have been submitted for judgment to
the appellate court; and that the municipality shall defray all
reasonable and necessary expenses for the prosecution of the case in
the trial and appellate courts including court and sheriff fees,
transportation and, subsistence of counsel and witnesses and cost of
transcripts of stenographic notes and other documents (Annex G). On the
same date, 28 June 1956, the petitioner filed the necessary complaint
in the Court of First Instance of Batangas (civil No. 542, Annex I). On
9 July 1956 the municipal mayor wrote to the petitioner agreeing to the
terms and conditions set forth in his (the petitioner’s) letter of 28
June 1956 (Annex H). On 16 July 1956 the defendant filed its answer to
the complaint (Annex J). On 24 July 1956 the petitioner wrote a letter
to the municipal treasurer requesting reimbursement of the sum of P40
paid by him to the Court as docket fee and payment of the sum of P500
as initial attorney’s fee. Attached to the letter were the pertinent
supporting papers (Annex K). The municipal treasurer forwarded the
petitioner’s claim letter and enclosures to the Auditor General through
channels for pre-audit. On 24 June 1957 the Auditor General disallowed
in audit the petitioner’s claim for initial attorney’s fees in the sum
of P500, based upon an opinion rendered on 10 May 1957 by the Secretary
of Justice who held that the Provincial Fiscal was not disqualified to
handle and prosecute in court the case of the municipality of Bauan and
that its municipal council had no authority to engage the services of a
special counsel (Annex L), but offered no objection to the refund to
the petitioner of the sum of P40 paid by him to the Court as docket fee
(Annex M). On 15 August 1957 the petitioner received notice of the
decision of the Auditor General and on 11 September 1957 he filed with
the Auditor General a notice of appeal from his decision under section
4, Rule 45, of the Rules of Court (Annex N). On 13 September 1957 the
petitioner filed this petition for review in this Court.
The Revised Administrative Code provides:
SEC. 2241. Submission of questions to provincial fiscal.—When
the council is desirous of securing a legal opinion upon any question
relative to its own powers or the constitution or attributes of the
municipal government, it shall frame such question in writing and
submit the same to the provincial fiscal’ for decision.SEC 1682. Duty of fiscal as legal adviser of province and provincial subdivisions.—The
provincial fiscal shall be the legal adviser of the provincial
government and its officers, including: district health officers, and
of the mayor and council of the various municipalities and municipal
districts of the province. As such he shall, when so requested, submit
his opinion in writing upon any legal question submitted to him by any
such officer or body pertinent to the duties thereof.SEC. 1683. Duty of fiscal to represent provinces and provincial subdivisions in litigation.—The
provincial fiscal shall represent the province and any municipality or
municipal district thereof in any court, except in cases whereof
original jurisdiction is vested in the Supreme Court or in cases where
the municipality or municipal district in question is a party adverse
to the provincial government or to some other municipality or municipal
district in the same province. When the interests of a provincial
government and of any political division thereof are opposed, the
provincial fiscal shall act on behalf of the province.When
the provincial fiscal is disqualified to serve any municipality or
other political subdivision of a province, a special attorney may be
employed by its council.
Under the foregoing provisions of law, the Provincial Fiscal is the
legal adviser of the mayor and counsel of the various municipalities of
a province and it is his duty to represent the municipality in any
court except when he is disqualified by law. When he is disqualified to
represent the municipality, the municipal council may engage the
services of a special attorney. The Provincial Fiscal is disqualified
to represent in court the municipality if and when original
jurisdiction of the case involving the municipality is vested in the
Supreme Court; when the municipality is a party adverse to the
provincial government or to some other municipality in the same
province ;[1] and when in the
case involving the municipality, he, or his wife, or child, is
pecuniarily involved as heir, legatee, creditor or otherwise.[2]
The fact that the Provincial Fiscal in the case at bar was of the
opinion that Republic Act No. 1383 was valid and constitutional, and,
therefore, would not be in a position to prosecute the case of the
municipality with earnestness and vigor, could not justify the act of
the municipal council in engaging the services of a special counsel.
Bias of prejudice and animosity or hostility on the part of a fiscal
not based on any of the conditions enumerated in the law and the Rules
of Court do not constitute a legal and valid excuse for inhibition or
disqualification.[3]
And unlike a practising lawyer who has the right to decline employment,[4]
a fiscal cannot refuse the performance of his functions on grounds not
provided for by law without violating his oath of office, where he
swore, among others, “that he will well and faithfully discharge to the
best of his ability the duties of the office or position upon which he
is about to enter * * *.”[5]
Instead of engaging the services of a special attorney, the municipal
council should have requested the Secretary of Justice to appoint an
acting provincial fiscal in place of the provincial fiscal who had
declined to handle and prosecute its case in court, pursuant to section
1679 of the Revised Administrative Code. The petitioner claims that the
municipal council could not do this because the Secretary of Justice,
who has executive supervision over the Government Corporate Counsel,
who represented the National Waterworks and Sewerage Authority in (the
case filed against it by the municipality of Bauan (civil No. 542,
Annex J) and direct supervision and control over the Provincial Fiscal,
would be placed in an awkward and absurd position of having control of
both sides of the controversy. The petitioner’s contention is
untenable. Section 83 of the Revised Administrative Code, as amended by
Executive Order No. 94, series of 1947 and further amended by Executive
Order No. 392, series of 1950, 46 Off. Gaz., 5913, 5911, provides that
the Secretary of Justice shall have executive supervision over the Government Corporate Counsel and supervision and control over Provincial Fiscals. In Mondano vs. Silvosa, 97 Phil., 143; 51 Off. Gaz., 2884, 2888, this Court distinguished supervision from control as follows:
* * * In administrative law supervision means
overseeing or the power or authority of an officer to see that
subordinate officers perform their duties. If the latter fail or
neglect to fulfill them the former may take such action or step as
prescribed by law to make them perform their duties. Control, on the
other hand, means the power of an officer to alter or modify or nullify
or set aside what a subordinate officer had done in the performance of
his duties and to substitute the judgment of the former for that of the
latter.* * *
The fact that the Secretary of Justice had, on several occasions,
upheld the validity and constitutionality of Republic Act No. 1383 does
not exempt the municipal council of Bauan from requesting the Secretary
of Justice to detail a provincial fiscal to prosecute its case.
The services of the petitioner having been engaged by the municipal
council and mayor without authority of law, the Auditor General was
correct in disallowing in audit the petitioner’s claim for payment of
attorney’s fees.
The decision under review is affirmed, without pronouncement as to costs.
Bengzon, Montemayor, Bautista Angelo, Concepcion, Barrera and Gutierrez David, JJ., concur.
Paras, C.J., Labrador and Endencia, JJ., reserve their votes.
[1]
See Reyes vs. Cornista, 92 Phil., 838; 49 Off. Gaz. 981; Municipality of Bocaue and Province of Bulacan vs. Manotok, 98 Phil., 173.
[2]
Section 13, Rule 115 and Section 1, Rule 126, Rules of Court.
[3]
Cf. Benusa vs. Torres, 55 Phil., Y337; People vs. Lopez, 78 Phil., 286.
[4]
Canon No. 31 of the Canons of Professional Ethics.
[5]
Section 23, Revised Administrative Code.