QUIRICO ABETO, PETITIONER, VS. SOTERA RODAS, RESPONDENT.

PARAS, J.:


This is an original action for quo warranto in which the petitioner
seeks the ouster of the respondent as presiding Judge of the Sixth Branch of the
Court of First Instance of Manila and the reinstatement of the petitioner to
said judicial position. It is alleged that the petitioner was occupying the
position until August 1, 1941, when he was suspended by the President of the
Commonwealth upon recommendation of this Court; that on October 12, 1946,
after proper investigation, the petitioner was exonerated by the President of
the Philippines from the charges that gave rise to his suspension; that
notwithstanding his exoneration, the petitioner was not restored to his former
position then held by the respondent. The petitioner herein invokes his right to
the constitutional tenure of judges.

We note that this action was commenced only on March 2, 1948, or more than
one year from October 12, 1946 when, according to his own theory, the petitioner
should have been reinstated. Actions for quo warranto are now governed
by Rule of Court No. 68, Section 16 of which provides that “Nothing contained in
this rule shall be construed to authorize an action * * * an officer for his
ouster from office unless the same be commended within one year after the cause
of such ouster, or the right of the plaintiff to hold office, arose; * * *.” A
similar provision in the Code of Civil Procedure was given effect in Bautista
vs. Fajardo, 38 Phil. 624, wherein this Court held: “It cannot be
supposed that the Legislature intended that the right to a public office, when
dependent upon pre- scription, should be subject to continued uncertainty; and
the public interest clearly requires that such right should be determined as
speedily as practicable.” We would go farther by holding that’the period fixed
in the rule is a condition precedent to the existence of the cause of action,
with the result that, if a complaint is not filed within one year, it cannot
prosper although the matter is not set up in the answer or motion to
dismiss.

We are therefore constrained to dismiss the present action. So ordered,
without costs.

Moran, C.J., Pablo, Bengzon, Tuason, and
Montemayor JJ., concur.

DISSENTING

FERIA, J.:

I strongly dissent from the decision of the majority. The pertinent provision
of Section 16, Rule 68, is substantially taken from Sec. 216 those of the old
Code of Civil Procedure, Act No. 190, as amended, which read as follows:

“SEC. 216. Limitations.—Nothing herein contained shall authorize an
action against a corporation for forfeiture of charter, unless the same be
commenced within five years after the act com- plained of was done or committed;
nor shall an aotion be brought against an officer to be ousted from hia office
unless within one year after the cause of such ouster, or the right to hold the
office, arose.”

This Court in construing the above quoted provisions in the case of Bautista
vs. Fajardo (38 Phil. 624) quoted in the decision of the majority and
the case of Agcaoili vs. Suguitan, 48 Phil. 697, has held that said
section provides for limitation of an action of quo
warranto.

In the case of Bautista vs. Fajardo it was said:

“* * * if a petitioner delays bringing his action, as in this case, for more
than one year after his right to hold the office arises, the action is barred
although the usurper or other person holding the office at the time of the
institution of the proceeding to oust him may not himself have been in adverse
possession for a full year.

*          *          *          *          *          *          *

“It cannot be supposed that the Legislature intended that the right to a
public office, when dependent upon prescription, should be subject to continued
uncertainty; and the public interest clearly requires that such right should be
determined as speedily as practicable. It is evident that vihere the action to
recover an office has once prescribed it can not be revived by any change in the
personality of the incumbent; and it cannot be admitted that a new right,
different from that which he had previously possessed, accrued to the petitioner
upon May 6, 1917, when the respondent was inducted into office. If the
petitioner had any right it had existed at least from the beginning of the
official term, and the prescription must he computed from that date.” (38 Phil.
627, 628.)

And in the case of Agcaoili vs. Suguitan, this Court held:

“In our opinion, even granting that section 216 is applicable to the
appellant, the period of prescription had not begun to run at the time of the
commencement of the present action. He was justified in delaying the
commencement of his action until an answer to his protest had been made. He had
a right to await the answer to’his protest, in the confident belief that it
would be resolved in his favor and that action would be unnecessary.”(48 Phil.
576, 697)

The very caption of the above quoted provisions, and of section 16, Rule 68,
plainly shows that it refers to “Limitation” of action. Second paragraph of Act
356 of the Code of Commerce which provides that;

“The purchaser shall have a right action against the vendor for defect in the
quantity or quality of merchandise received in bales or packages, provided he
brings his action within the four days following that of its receipt, and the
damage is not due to fortuitous event, inherent defect of the thing, or
fraud.”

has been construed by this Court in the case of Ban Kiat & Co.
vs. Atkins. Kroll & Co. (44 Phil. 4, 12-13) as to provide for
limitation of actions, because it refers to the time for bringing an action, and
therefore it was superseded by the statute of limitation contained in the old
Code of Civil Procedure, according to this Court.

The provisions of our of our law on quo warranto were taken from the
laws or statutes in force in the States, and there is no statute or decision in
the States of the Union which considers the time within which a special civil
action of quo warranto as a condition precedent to the institution of
the action. It has always been construed or established as a limitation of
action (51 C. J. p. 330; 44 Am. Jur. p. 62)

The limitation provided for in said Section 16, Rule 68 applies not only to
action against an officer for the ouster from office, whether a public office or
an office in a private corporation, but also to actions against a corporation
for forfeiture of charter, and against the person ousted for damages. It was
substantially taken from Secs. 211 and 216 of old Code of Civil Procedure and it
can not have a different import from the latter1s provisions because this
Supreme Court has no power under the Constitution to promulgate Rules providing
for limitation of actions, as well as conditions precedent to the bringing of an
action, for they are not matters of procedure, pleading and practice, but of
substantive law. Said Sec. 211 provided that the person declared entitled to the
office may, at any time within one year after the date of the judgment, bring an
action the person ousted and recover the damages sustained by reason of Ms
usurpation; and Sec. 216 prescribed that no action shall be brought against a
corporation for forfeiture of charter, or against an of- fioer to be ousted from
his office unless within one year after the oase of such ouster or the right to
hold office arose. Besides, there is absolutely reason why the time within which
such actions must be instituted should be considered as a condition precedent to
the institution of an action or right of action.

In the case of Sempio vs. Del Rosario, 44 Phil. 1, this Court
construed the period of nine days as a condition precedent to or essential
element of the right of legal redemption, because said period refers to the
exercise of legal redemption and not to the institution of the action to redeem.
That is, that the legal redemptioner in such case has, within that period, to
exercise his right or make demand upon the purchaser of an adjacent rural es-
tate with an area less than one hectare and offer the repurchase price, because
if he does not do so, he loses or waives his right of legal redemption. If the
latter refuses to accept it, he may file the corresponding action at any time
with the corresponding period of limitation provided by law. A substantive right
may be exercised without necessity of instituting a judicial action against the
one having the correlative obligation unless the latter refuses or fails to
perform it.

The extinction of a substantive right must be distinguished from the bar by
the statute of limitation of the action to enforce it. The right to institute an
action may be barred by statute of limitation, and yet the substantive right
subsist, as shown by the fact that if the defense of prescription of action or
statute of limitation is not set up, the plaintiff or the person having the
right may enforoe it may recover. But the extinction of a right carries
necessarily tdtn it the extinction of the corresponding right of action, as well
stated by the late Chief Justice Arellano in the case of Domingo vs.
Osorio (7 Phil. 405).

BRIONES, J.:

I concur in the goregoing dissenting
opinion.

DISSENTING

PERFECTO, J.:

The majority is of opinion that petitioner, in order that he may legally
seel: the remedy prayed for in his petition, should have filed the sane within
the one year provided by Section 16 of Rule 68 which reads as follows:

“SEC. 16.—Nothing contained in this rule shall “be construed to authorize an
action against a corporation for forfeiture of charter unless the same “be
conneneed within five years after the act complained of was done or committed;
nor to authorize an action against an officer for his ouster from office unless
the same “be commenced within one year after the cause of such ouster, or the
right of the plaintiff to hold office, arose; nor to authorize an action for
damages in accordance with the provisions of the last preceding section unless
the same be commenced within one year after the entry of the judgment
establishing the plaintiff’s right to the office in question.”

The above quoted reglementary provision is invoked by the majority to defeat
petitioner’s tenure of office as guaranteed by the first clause of Section 9 of
Article VIII of the Constitution which reads as follows:

“SEC. 9. The members of the Supreme Court and all judges of inferior courts
shall hold office during good behavior, until they reach the age of seventy
years, or become incapacitated to discharge the duties of their office. They
shall receive such compensation as may be fixed by law, which shall not be
diminished during their continuance in office. Until the Congress shall provide
otherwise, the Chief Justice of the Supreme Court shall receive an annual
compensation of sixteen thousand and each Associate Justice fifteen thousand
pesos.”

On August 1, 1941, upon the Supreme Court’s recommendation, petitioner was
suspended by the President of the Commonwealth of the Philippines as judge
presiding over one of the branches ‘of the Court of First Instance of
Manila.

After due investigation of the charges filed against petitioner, disregarding
the reconmendation of the Supreme Court, the President of the Philippines
issued on October 12, 1946, Executive Order No. 12, exonerating petitioner from
the charges against him and ordering the payment of his salaries froia August 1
to December 31, 1941, plus five months1 salary in accordance with Administrative
Order No. 167 dated December 12, 1941, and Administrative Order No. 27 dated
December 7, 1945.

Notwithstanding his exoneration, petitioner alleges that he was not yet
restored to his position as judge of first instance of Manila which is illegally
withheld by respondent.

Respondent Judge Sotero Rodas was given by this Court ten days from notice
within which to answer the petition. No answer has been filed, and the case has
been submitted for decision without said answer on July 23, 1948.

The facts in this case are not disputed and upon them, there cannot be any
question that petitioner is still a judge of first instance of Manila. He was
not ousted from his position. He was only suspended by reason of the charges
filed against him from which he was at last completely exonerated. There is no
dispute and there has never been any dispute as to the fact that there is no
ground to remove him from office. There is also no pretense that petitioner lias
reached the age of seventy. Under the Constitution, he is entitled to hold
office until he reaches the age of seventy unless found guilty of misbehavior or
he becomes incapacitated to discharge the duties of his office. He lias been
exonerated from charges of misbehavior and there is no showing that he has
become incapacitated. He Is entitled to continue holding his office as a
constitutional right.

In applying Section 16 of Rule 68, the majority would have it appear that
petitioner should have filed his petition witliin one year from October 12,
1946, the date of Administrative Order, No. 12, exonerating him from the charges
filed against him.

Section 16 of Rule 68 contemplates two starting points in a case in which a
public officer is involved: (a) the date when the cause of ouster against
respondent accrues, and b. the date when the right of plaintiff to hold office
has arisen.

In either case, the rule is inapplicable to petitioner. The record offers no
definite information as to the date Judge Rodas started to occupy petitioner ‘s
position in the Court of First Instance of Manila. Because the filling of
petitioner’s position by respondent cannot be attributed to any other reason
than that the position was vacated as a result of petitioner’s suspension from
office, we are entitled to presume that respondent started to occupy the
position on or about August 1, 1941, and that should be the date when the cause
of respondent’s ouster must have arisen. Then the application of the rule would
necessarily lead us .ad. absurdun. How could petitioner seek respondent’s ouster
within a year, that is, on or before August 1, 1942, when his exoneration took
place only on Octoteer 12, 1946. How could he seek respondent’s ouster years
before he was cleared of the charges which caused his suspension?

As a matter of fact, petitioner’s suspension since August 1, 1941, has not
yet been lifted. Administrative Order No. 12, exonerating petitioner from all
the charges filed against him, in effect continued his suspension for an
indefinite period of time, when therein it is stated: “Because his office has
already been filled, his reinstatement or reappointment is not now
possible.”

Therein appears clearly that President Manuel Roxas who exonerated him, is
the same one who refused to reinstate him in his office.

Regarding the second case contemplated by Section 16 of Rule 68, which refers
to the time when plaintiff’s right to hold office has accrued, the rule is also
inapplicable, because petitioner’s right to hold office started since he was
duly appointed as judge of first instance of Manila. Such event had taken place
before his suspension on August 1, 1941. To apply to him the rule is again to
exact from him an impossibility.

The authors of the rules must have used the words “to hold office” advisedly.
Their meaning cannot be indentified with the idea involved in the word
reinstatement. Reinstatement means assuviing again the functions of the office
already held.

But, even in the false hypothesis that Section 16 of Rule 68 is applicable to
the case at bar, because its application will result, in defeating the judicial
permanent tenure of office guaranteed by Section 9 of Article VIII of the
Constitution, it should give way to the constitutional mandate.

There is no quarrel with the pronouncement made in Bautista vs.
Fajardo (28 Phil. 62) cited in the majority opinion that “it cannot be supposed
that the legislature intended that the right to a public office, when dependent
upon prescription, should be subject to continued uncertainty; and the public
interest clearly requires that such right should be determined as speedily as
practicable”. But the pronouncement has absolutely no bearing on petitioner’s
case because it starts from a major premise that does not and cannot exist in
this case. The premise refers to a public office “dependent upon prescription”,
and the pre-Commonwealth Supreme Court undoubtedly had in mind offices regulated
by statutory provisions. Petitioner’s office is regulated by the Constitution,
under which it is imprescriptible.

There is no provision in the fundamental law setting any period for the
prescription of the office of a Judge and there is no authority granted to
Congress or to the rule-making pover of the Supreme Court to provide for any
period of prescription of said office. The limitations set by Section 9 of
Article VIII of the Constitution for Judicial tenure of office cannot be
increased by statutory provision. Misbehavior or incapacity to discharge the
duties of office are only the two limitations permitted by the Constitution.

We penned the majority resolution of this Court, finding petitioner guilty of
the charges filed against him and recommending that he be not allowed to return
to office. But having been exonerated by the President of the Philippines,
regardless of the majority opinion of this Court, petitioner is entitled to all
the benefits resulting from his exoneration, and this Court which, in compliance
vlth official duty, recommended, the non-reinstatement of petitioner, is nov
duty bound, under the law, to order his reinstatement as a necessary and
unavoidable consequence of the exoneration decreed by the President of the
Philippines.

Lots of time and discussion have been devoted by several Justices to the
question as to whether the provision of Section 16 of Rule 68 applied by the
majority to petitioner’s case, has the nature of a condition precedent or the
nature of a limitation of action. Those who voted to defeat petitioner’s claim
have done so upon the premise that the provision in question constitutes a
condition precedent, but not a prescription of action. The controversy on the
point appears to us immaterial. Considered as a conditio sine qua non or as a
limitation of action, in either case, the provision affects a substantive right,
so substantive that It is expressly safeguarded by Section 9 of Article VIII of
the Constitution, the right of judicial tenure.

Affecting as it does a substantive right, it should not be given effect
against petitioner, because the rule-making power of the Supreme Court, the
authority upon which the reglementary provision has been enacted, cannot
diminish, increase, or modify substantive rights, and it is so expressly
provided by Section 13 of Article VIII of the Constitution.

Therefore, whether it is a condition precedent, a conditio sine qua, 323, a
prescription, or a statute of limitation, the reglementary provision in question
cannot impair petitioner’s constitutional right to his tenure of office which,
because expressly guaranteed by the Constitution, cannot even be limited or
modified by any legislative enactment of Congress.

The petition should be granted and the petitioner is ordered reinstated in
his position as Judge of the Court of First Instance of Manila, with the ouster
of whoever may be actually holding said position. No costs.