G.R. No. L-3881. August 31, 1950
EDUARDO DE LOS SANTOS, PETITIONER, VS. GIL R. MALLARE, LUIS P. TORRES, IN HIS CAPACITY AS CITY MAYOR, PANTALEON PIMENTEL, IN HIS CAPACITY AS CITY TREASURER, AND RAFAEL USON, IN …
TUASON, J.:
of the appointment of respondent Gil R. Mallare to the office of city
engineer for the City of Baguio which the petitioner occupied and
claims to be still occupying. The real issue however is the legality of
the petitioner’s removal from the same office which would be the effect
of Mallare’s appointment if the same be allowed to stand. It is the
petitioner’s contention that under the, Constitution he can not be
removed.against his will and without cause. The complaint against the
other respondents has to do merely with their recognition of Mallare as
the lawful holder of the disputed office and is entirely dependent upon
the result of the basic action against the last-mentioned respondent
(Mallare).
Stripped of details unessential to the solution of the case, the
facts are that Eduardo de los Santos, the petitioner, was appointed
City Engineer of Baguio on July 16, 1946, by the President, appointment
which was confirmed by the Commission on Appointments on August 6, and
on the 23rd of that month, he qualified for and began to exercise the
duties and functions of the position. On June 1, 1950, Gil R. Mallare
was extended an ad interim appointment by the President to
the same position, after which, on June 3, the Undersecretary of the
Department of Public Works and Communication directed Santos to report
to the Bureau of Public Works for another assignment. Santos refused to
vacate the office, and when the City Mayor and the other officials
named as Mallare’s co-defendants ignored him and paid Mallare the
salary corresponding to the position, he commenced these proceedings.
The petitioner rests his case on Article XII of the Constitution,
Section 4 of which reads: “No officer or employee in the Civil Service
shall be removed or suspended except for cause as provided by law.”
It is admitted in respondents’ answer that the City Engineer of
Baguio “belongs to the unclassified service.” An d this Court, in an
exhaustive opinion by Mr. Justice Montemayor in the case of Lacson vs.
Romero, 47 Off. Gaz., 1778, involving the office of provincial fiscal,
ruled that officers or employees in the unclassified as well as those
in the classified service are protected by the above-cited provision of
the organic law. But there is this difference between the Lacsott case
and the case at bar: Section 2545 of the Revised Administrative Code,
which falls under Chapter 61 entitled “City of Baguio,” authorizes the
Governor General (now the President) to remove at pleasure
any of the officers enumerated therein, one of whom is the city
engineer. The first question that presents itself is”,’ is this
provision still in force?
Section 2 of Article XVI of the Constitution declares that all
laws of the Philippine Islands shall continue in force until the
inauguration of the Commonwealth of the Philippines; thereafter, such
laws shall remain operative, unless inconsistent with this Constitution, until amended, altered, modified, or repealed by the Congress of the Philippines, * * *.”
It seems plain beyond doubt that the provision of Section 2545 of
the Revised Administrative Code, “he (Governor-General now President)
may remove at pleasure any of the said appointive officers,” is
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.” The two provisions are mutually repugnant
and absolutely irreconcilable. One in express terms permits what the
other in similar terms prohibits.
The Constitution leaves it to the Congress to provide for the cause
of removal, and it is suggested that the President’s pleasure is itself
a cause. The phrase “for cause” in connection with removals of public
officers has acquired a well-defined concept. “It means for reasons
which the law land sound public policy recognized as sufficient warrant
for removal, that is’, legal cause’, and not merely causes which the
appointing power in the exercise of discretion ‘ may deem sufficient.
It is implied that officers may not be removed at the mere will of
those vested with the power of removal, or without any cause. Moreover,
the cause must relate to and affect the administration of the office,
and must be restricted to something of a substantial nature directly
affecting the rights and interests of the public.” (43 Am. Jur. 47, 48.)
Reconsideration of the decision in Lacson vs. Romero as
far as officers in the unclassified service are concerned is urged. It
is contended that only officers and employees in the classified service
should be brought within the purview of Article XII of the Constitution.
Section 1 of this Article ordains: “A Civil Service embracing all
branches and subdivisions of the Government shall be provided by law.
Appointments in the Civil Service, except as to those which are
policy-determining, primarily confidential or highly technical in
nature, shall be made only according to merit and fitness, to be
determined as far as practicable by competitive examination.” The first
clause is a definition of the scope of Civil Service, the men and women
which Section 4 protects. It seems obvious from that definition that
the entire Civil Service is contemplated, except positions “which are
policy-determining, primarily confidential or highly technical in
nature.” This theory is confirmed by the enactment of Commonwealth Act
No. 177 on November 30, 1936, to implement Article XII of the
Constitution. Commonwealth Act No. 177 explains Civil Service almost in
the identical words of that Article of the organic law. As a
contemporaneous construction, this Act affords an index to the meaning
of Civil Service as conceived by the framers of the Constitution. “The
principle of contemporaneous construction may be applied to the
construction given by the legislature to the constitutional provisions
dealing with legislative powers and procedure. Though not conclusive,
such interpretation is generally conceded as being entitled to great
weight.” (U.S. vs. Sprague, 282 U.S. 716, 75 L. Ed. 640, 51 S. Ct. 220, 71 A.L.R. 1381; Den ex dem. Murray vs. Hoboken Land & Improv. Co. 18 How. [U.S.] 272, 15 L. ed. 372; Clark vs.
Boyce, 20 Ariz. 544, 135 P., 136, citing R.C.L.; 11 Am. Jur. 699.)
The principle of express mention and implied exclusion may be made use
of also to drive home this point.
We are led to the same conclusion by the existing provisions at the
time of the adoption of the Constitution. Civil Service as embracing
both classes of officers and employees possessed definite legal and
statutory meaning when the Constitution was approved. Section 670 of
the Revised Administrative Code already provided that “Persons in the
Philippine civil service pertain either to the classified or
unclassified service.” and went on to say that “The classified service
embraces all not expressly declared to be in the unclassified service.”
Then Section 671 described persons in the unclassified service as
“officers, other than the provincial treasurers and assistant directors
of bureaus or offices, appointed by the President of the Philippines,
with the consent of the Commission on Appointments of the National
Assembly, and all other officers of the government whose appointments
are by law vested in the President of the Philippines alone.”
The rules of construction inform us that the words used in the
constitution are to be given the sense they have in common use.
(Okanogan Indians vs. United States, 279, U.S. 665; 64 A.L.R. 1434; 73 Law ed. 894.) It has been said that we must look to the
history of the times, examine the state of things existing when the
Constitution was framed and adopted, (Rhode Islands vs. Massachusetts, 12 Pet. 657, 9 Law ed. 1233), and interprets it in the light of the law then in operation. (Mattox vs. United States, 156, U.S. 237, 39 Law ed. 409.)
Attention is drawn to supposed inconveniences of tying the hands of
the appointing power in changing and shifting officers in the
unclassified service. “If—it is argued—all important officers and
employees of the government falling within the unclassified service as
enumerated in Section 671 of the Revised Administrative Code as amended
by Commonwealth Act No. 177, may not be removed by the President
except for cause as provided by law, * * * the President would be
seriously crippled in the discharge of the grave duty and
responsibility laid upon him by the Constitution to take care that the
laws be faithfully executed.”
Questions of expediency are, of course, beyond the province of the
courts to take into account in the interpretation of laws or the
Constitution where the language is otherwise clear. But the argument
is, we think, unsound even if, the case be approached from this angle.
It contains its own refutation. The Constitution and the law
implementing it afford adequate safeguards against such consequences as
have been painted.
The argument proceeds, contrary to its context, on the assumption
that removals of civil service officers and employees are absolutely
prohibited, which is not the case. The Constitution authorizes removals
and only requires that they be for cause. And the occasions for removal
would be greatly diminished if the injunction of Section 1 of Article
XII of the Constitution—that appointments in the civil service shall
be made only according to merit and fitness, to be determined as far as
practicable by competitive examination – would be adhered to
meticulously in the first place.
By far greater mischiefs would be fomented by an unbridled
authority to remove. Such license would thwart the very aims of the
Constitution which are expounded by Dean Aruego, himself a member of
the Constitution Convention, in the following remarks copied with
approval in Lacson vs. Romero, supra:
“The adoption of the ‘merit system’ in government
service has secured efficiency and social justice. It eliminates the
political factor in the selection of civil employees which is the first
essential to an efficient personnel system. It insures equality of
opportunity to all deserving applicants desirous of a career in the
public service. It advocates a new concept of the public office as a
career open to all and not the exclusive patrimony of any party or
faction to be doled out as a reward for party service.”“The
‘merit system,’ was adopted only after the nations of the world took
cognizance of its merits. Political patronage in the government service
was sanctioned in 1789 by the Constitutional right of president of the
United States to act alone in the matter of removals. From the time of
Andrew Jackson, the principle of the ‘To the victor belongs the spoils’
dominated the Federal Government. The system undermined moral values
and destroyed administrative efficiency.“Since the
establishment of the American Regime in the Philippines we have enjoyed
the benefits of the ‘merit system.’ The Schumann Commission advocated
in its report that ‘the greatest care should be taken in the selection
of the officials for administration. They should be men of the highest
character and fitness, and partisan politics should be entirely
separated from the government.’ The fifth act passed by the Philippine
Commission created a Board of Civil Service. It- instituted a system
here that was far more radical and thorough than that in the United
States. The Governor-General after William Taft adopted, the policy of
appointing Filipinos in the government regardless of their party
affiliation. As the result of these the personnel of the Civil Service
had gradually come to be one of which the people of the United States
could feel justly proud.“Necessity for Constitutional provision.—The
inclusion in the constitution of provisions regarding the ‘merit
system’ is a necessity of modern times. As its establishment secures
good government the citizens have a right to except its guarantee as a
permanent institution.”“Separation, suspension, demotions and Transfers.—The
‘merit system’ will be ineffective if no safeguards are placed a round
the separation and removal of public employees. The Committee’s report
requires that removals shall be made only ’causes and in the manner
provided by law.’ This means that there should be bona fide reasons
and.action may be taken only after the employee shall have been given a
fair hearing. This affords to public employees reasonable security of
tenure.” (Maruego’s Framing of the Constitution 886, 887, 890.)
As has been seen, three specified classes of
positions—policy-determining, primarily confidential and highly
technical—are excluded from the merit system and dismissal at pleasure
of officers and employees appointed therein is allowed by the
Constitution. These- positions involve the highest degree of
confidence, or are closely bound up with and dependent on other
positions to which they are subordinate, or are temporary in nature. It
may truly be said that the good of the service itself demands that
appointments coming under this category be terminable at the will of
the officer that makes them.
The office of city engineer is neither primarily confidential, policy-determining, nor highly technical.
Every appointment implies confidence, but much more than ordinary
confidence is reposed in the occupant of a position that is primarily
confidential. The latter phrase denotes not only confidence in the
aptitude of the appointee for the duties of the office but primarily
close intimacy which insures freedom of intercourse without
embarrassment or freedom from misgivings of betrayals of personal trust
or confidential matters of state. Nor is. the position of city engineer
policy-determining. A city engineer does not formulate a method of
action for the government or any of its subdivisions. His job is to
execute policy, not to make it. With specific reference to the City
Engineer of Baguio, his powers and duties are carefully laid down for
him by Section 2557 of the Revised Administrative Code and are
essentially ministerial in character. Finally, the position of city
engineer is technical but not highly so. A city engineer is not
required nor is he supposed to possess a technical skill or training in
the supreme or superior degree, which is the sense in which “highly
technical” is, we believe, employed in the Constitution. There are
hundreds of technical men in the classified civil service whose
technical competence is not lower than that of a city engineer. As a
matter of fact, the duties of a city engineer are eminently
administrative in character and could very well be discharged by non-
technical men possessing executive ability.
Section 10 of Article VIII of the Constitution requires that “All
cases involving the constitutionality of a treaty or law shall be heard
and decided by the Supreme Court in banc,” and warns that “no
treaty or law may be declared unconstitutional without the
concurrence of two-thirds of all the members of the Court.” The
question arises as to whether this judgment operates as invalidation of
Section 2545 of the Revised Administrative Code or a part of it so as
to need at least eight votes to make it effective. The answer should be
in the negative.
We are not declaring any part of Section 2545 of, the Revised
Administrative Code unconstitutional. What we declare is that the
particular provision thereof which gave the Chief Executive power to
remove officers at pleasure has been repealed by the Constitution and
ceased to be operative from the time that instrument went into effect.
Unconstitutionality, as we understand it, denotes life and vigor, and
unconstitutional legislation presupposes posteriority in point of time
to the Constitution. It is a statute that “attempts to validate and
legalize a course of conduct the effect of which the Constitution specifically forbids.” (State ex-rel. Mack vs.
Guckenberger, 139 Ohio St. 273, 39 NE [2d] 340.) A law that has been
repealed is as good as if it had never been enacted, and can not, in
the nature of things, contravene or pretend to contravene
constitutional inhibitions. So, unlike legislation that is passed in
defiance of the Constitution, assertive and menacing, the questioned
part of Section 2545 of the Revised Administrative Code does not need a
positive declaration of nullity by the court to put it out of the tray.
To all intents and purposes, it is non-existent, outlawed and
eliminated from the statute book by the Constitution itself by express
mandate before the petitioner was appointed.
Incidentally, the last discussion answers and disposes of the
proposition that in accepting appointment under Section 2545 of the
Revised Administrative Code, the petitioner must be deemed to have
accepted the conditions and limitations attached to the appointment. If
the clause of Section 2545 which authorized the President to remove
officers of the City of Baguio at pleasure had been abrogated when
petitioner’s appointment was issued, the appointee can not be presumed
to have abided by this condition.
We therefore hold that the petitioner is entitled to remain in
office as City Engineer of Baguio with all the emoluments, rights and
privileges appurtenant thereto, until he resigns or is removed for
cause, and that respondent Mallare’s appointment is ineffective in so
far as it may adversely affect those emoluments, rights and privileges.
Without costs.
Moran, C.J., Ozaeta, Paras, Pablo, and Montemayor, JJ., concur.
BENGZON, J., concurring:
I concur in the result solely upon the ground that Section 2545 of
the Baguio Charter (Administrative Code) empowering the President to
remove the City Engineer at pleasure has been impliedly
repealed by Section 22 of Commonwealth Act No. 177 which expressly
provides for the first time (following the mandate of the Constitution)
, that “no officer or employee in the civil service shall be removed or
suspended except for cause as provided by law.”
I must decline to go into the matter of alleged conflict with the
Constitution, first, because plaintiff is precluded from raising that
question (Zandueta vs. de la Costa, 66 Phil., 615); second,
because every law is presumed to be constitutional unless eight
Justices of this Court are clearly of a contrary opinion,[1]
and third, because that subject need not be inquired into, except when
absolutely necessary for the disposition of the controversy .
REYES, J.:
I concur in this opinion of Mr. Justice Bengzon.
[1] Cf. People vs. Vera, 65 Phil., 56, 137.