REPUBLIC OF THE PHILIPPINES, PETITIONER, VS. HONORABLE DOMINGO IMPERIAL AND HONORABLE RODRIGO D. PEREZ, RESPONDENTS.

This is a quo warranto proceeding instituted by the Solicitor
General against Honorable Domingo Imperial and Honorable Rodrigo Perez, to test
the legality of their continuance in office as Chairman and Member,
respectively, of the Commission on Elections.

According to the Solicitor General, the first commissioners of Elections were
duly appointed and qualified on July 12, 1945, with the following terms of
office:

Hon, Jose Lopez Vito, Chairman, for 9 years, expiring on July 12, 1954

Hon. Francisco Enage, Member, for 6 years, expiring on July 12, 1951

Hon. Vicente Vera, Member, for 3 years, expiring on July 12,
1948;

that upon the death of Chairman Jose Lopez Vito in May, 1947, Member Vicente
de Vera was promoted Chairman by appointment dated May 26, 1947; that in
accordance with the ruling of this Court in Nacionalista Party vs.
Vera, 47 Off. Gaz., 2375, and Nacionalista Party vs. Felix Angelo
Bautista, 47 Off. Gaz., 2356, the term of office of Chairman De Vera would have
expired on July 12, 1954, that is, the date when the term of office of the first
Chairman, Honorable Jose Lopez Vito, would have expired; that Chairman Vicente
de Vera died in August, 1951, before the expiration of the maximum term of nine
years (on July 12, 1954) of the first Chairman of the Commission; that on August
11, 1951, the respondent Honorable Domingo Imperial was appointed Chairman to
succeed Honorable Vicente de Vera; that while the appointment of the respondent
Honorable Imperial provided that he was to serve “for a term expiring July 12,
1960”, the term for which he could legally serve as Chairman legally expired on
July 12, 1954, that is, the expiration of the nine-year term for which the first
Chairman, Honorable Jose Lopez Vito, was appointed; that the respondent
Honorable Rodrigo Perez was appointed Member of the Commission on December 8,
1949, for “a term of nine years expiring on November 24, 1958”, vice Honorable
Francisco Enage, who was retired on November, 1949; that the term of office of
respondent Perez legally expired on July 12, 1951, the expiration of the term of
six years for which Commissioner Enage, his predecessor, was appointed.
Wherefore, the Solicitor General concludes that the respondents Commissioners
Imperial and Perez have ceased to have any legal or valid title to the positions
of Chairman and Member, respectively, of the Commission on Elections, and that
therefore, their positions should be declared vacant.

The respondents filed separate answer to the petition for quo
warranto, both of which pray for the dismissal of the petition.

The defense of respondent Honorable Domingo Imperial is substantially that
Honorable Jose Lopez Vito was first appointed Chairman of the Commission on
Elections on May 12, 1941, for a term of nine years expiring on May 12, 1950;
that when Commissioner Lopez Vito was again appointed Chairman on July 12, 1945,
his nine-year, term of office under this second appointment should not be
reckoned from the date thereof, that is, July 12, 1945, but from the date of his
first appointment in 1941, so that the term under his second appointment expired
on May 12, 1950; that respondent Imperial having been appointed after the
expiration of Chairman Lopez Vito’s full term of nine years in 1950, he
(respondent Imperial) should serve office for a full term of nine years, ending
only on August 10, 1960. Respondent Imperial stresses the unconstitutional^ of
Chairman Lopez Vito’s second appointment to serve up to July 12, 1954, upon the
ground that under the Constitution, he (Chairman Lopez Vito) could neither be
appointed for more than nine years nor be allowed to succeed himself.

The other respondent, Honorable Rodrigo Perez, alleges that since Chairman
Lopez Vito was the first to be appointed under the Constitution on May 13, 1941,
the terms of office of all the Commissioners on Election should be reckoned from
that date, May 13, 1941, to maintain the three-year difference between the dates
of expiration of their respective terms as provided for by the Constitution;
that the term of office of Member Francisco Enage (his predecessor) should
therefore be considered as having started on May 13, 1941, and since Enage was
appointed only for six years, his term of office expired on May 12, 1947; and
that since respondent Perez was appointed (on December 8,1949) after
Commissioner Enage’s six-year term of office had already expired, he should
serve for a full term of nine years from the expiration of Enage’s term of
office on May 12, 1947; hence, his own term of office would expire only on May
12, 1956. Respondent Perez argues that if the computation of the Solicitor
General were to be followed, that is, that Commissioner Enage’s term be counted
from July 12, 1945 ending on July 12, 1951, this term would end at a date very
close to the expiration of Commissioner Lopez Vito’s term on May 12, 1950, so
there would be only a difference of fourteen months between the expiration of
the terms of office of Commissioners Lopez Vito and Enage, a situation which is
contrary to and violative of the Constitution that prescribes a difference of
three years between the dates of the expiration of the terms of the Members of
the Commission.

The issues now posed demand a re-examination and application of the
Constitutional amendment establishing an independent Commission on Elections
(Article X) that became operative on December 2, 1940, superseding the purely
statutory Commission previously created and organized along the same lines by
Commonwealth Act No. 607. While this Court already had occasion to make
pronouncements on the matter in previous decisions, the same are not considered
decisive in view of the divergence of opinions among the members of the Court at
the time said decisions were rendered.

Section 1, paragraph 1, of Article X of the Constitution reads as
follows;

“Sec. 1. There shall be an independent Commission on Elections composed of a
Chairman and two other Members to be appointed by the President with the consent
of the Commission on Appointments, who shall hold office for a term of nine
years and may not be reappointed. Of the Members of the Commission first
appointed, one shall hold office for nine years, another for six years, and the
third for three yearg. The Chairman and the other Members of the Commission on
Elections may be removed from office only by impeachment in the manner provided
in this Constitution.” .

The provision that of the first three commissioners appointed, “one shall
hold office for 9 years, another for 6 years, and the third for 3 years,” when
taken together with the prescribed term of office for 9 years, without
reappointment, evidences a deliberate plan to have a regular rotation or cycle
in the membership of the commission, by having subsequent members appojntable
only once every three years. This had already been indicated in previous
opinions of this Court (Nacionalista Party vs. Angelo Bautista,^[1] 47 Off. Gaz., 2356; Nacionalista Party
vs. Vera,^[2] 47 Off. Gaz.,
2375), where it was declared that “with these periods it was the intention to
have one position vacant every three years, so that no President can appoint
more than one Commissioner, thereby preserving and safeguarding the independence
and impartiality of the Commission” as a body, we may add, for the impartiality
and independence of each individual Commissioner’s tenure was safeguarded by
other provisions in the same Article X of the fundamental charter (removability
by impeachment alone, and stability of compensation in sec. 1; disability to
practice any profession and prohibition of conflicting interest in sec. 3).

That the rotation of the Commissioner’s appointments at regular and fixed
intervals of three years was a deliberate plan is shown by the history of the
provision, and by selection of the fixed term of nine years for all subsequent
appointees, since no other term would give such a result. Initiated under
Commonwealth Act No. 607, the rotation plan was transferred without variation to
the Constitution, evidently for the purpose of preserving it from hasty and
irreflexive changes.

Now, the operation of the rotational plan requires two conditions, both
indispensable to its workability: (1) that the terms of the first three
commissioners should start on a common date; and (2) that any vacancy
due to death, resignation or disability before the expiration of the term should
only be filled only for the unexpired balance of the term. Without
satisfying these conditions, the regularity of the intervals between
appointments would be destroyed, and the evident purpose of the rotation (to
prevent that a four-year administration should appoint more than one permanent
and regular commissioner) would be frustrated.

While the general rule is that a public officer’s death or other permanent
disability creates a vacancy in the office, so that the successor is
entitled to hold for a full term, such rule is recognized to suffer exception in
those cases where the clear intention is to have vacancies ap- pointments at
regular intervals. Thus, in 43 Amer. prudence, sec. 159, p. 18, it is
stated:

“* * * In like manner, it has been ruled that the resignation or the removal
of an officer during his term and the election or appointment of a successor do
not divide the term or create a new and distinct one, and that in such a case
the successor is filling out his predecessor’s term. It seems the term of office
of one elected or appointed to fill a vacancy in a board of several officers
will be held to be for the unexpired term of his predecessor
only, where the clear intent of the creating power is that the
entire board should not go out of office at once, but that
different groups should retire at regularly recurring intervals.”
(Italics supplied).

In State ex rel. Rylands vs. Pinkerman, 63 Conn. 176, 28 Atl. 110,
22 LRA 643, the Court, discussing provisions in the charter of the city of
Bridgeport requiring two city Commissioners to serve for 2 years, and another
two to serve for 4 years, said:

“* * * The evident intent of section 50 is to secure to the city at all
times, so far as possible, the services of commissioners, half of whom have had
the benefit of at least a year’s experience in office, and to divide the
membership of each half equally between the leading political parties.
Parmater vs. State, 102 Ind. 90, 93. Such a board had existed in
Bridgeport since 1868. The charter of that year provided for the election of two
commissioners to serve for one year, and two for two years, and for the annual
election thereafter of two to serve for two years, and secured a nonpartisan
character to the board by allowing no one to vote for more than two out of the
four, and requiring the election of deputy commissioners to replace each elected
commissioner in case of a vacancy. From that time until the resignation of the
entire board, in December, 1890, its membership had been annually renewed by the
appointment of two commissioners for a term of two years, each belonging to a
different political party from the other. Were the contention of the defendant
well founded, the successors of the four commissioners who resigned in December,
1890, should have been, and in law were, appointed each for two-year term, thus
totally and forever frustrating the carefully devised scheme of alternating
succession which had been followed for twenty years.” (Cas. Cit., 22 LRA, 669)

The following cases also support the rule:

“When the Constitution fixes the duration of a term of office, and at the
same time provides for its being filled at a fixed time occurring periodically,
it necessarily follows that, a casual vacancy occurring during such term of
office, necessity must arise for filling it for the unexpired term; and although
the mode of filling such vacancy is prescribed by the Constitutional, yet the
incumbent only holds until the time arrives for filling the office in the
regular mode and at the regular time prescribed by the Constitution.” (Simpson
vs. Willard, 14 S. C. 191).

And in Baker vs. Kirk, 33 Ind. 517, it was held that the term of
office of one appointed to fill a vacancy in one of three memberships of &
board will, in the absence of any express provision therefore, be deemed to be
for the unexpired term, where the statute fixes the first term at unequal
lengths, so as to prevent an entire change of membership at any one time. In
speaking of the reasoning to the contrary, the court said: “It would make the
term of office to depend Upon the pleasure or caprice of the incumbent, and not
upon the will of the legislature as expressed in plain and undoubted language in
the law. This construction would defeat the true intent and meaning of the
legislature, 50 LRA. (N. S.), which was to prevent an entire change of the board
of directors of the prison.”

Other cases to the same effect are collated in the editorial note in State
Ex. Rel. Fish vs. Howell, 50 L. R. A. (N. S.), 345.

The fact that the orderly rotation and renovation of Commissioners would be
wrecked unless, in case of early vacancy, a successor should only be allowed to
serve for the unexpired portion of each regular term, sufficiently explains why
no express provision to that effect is made in Article X of the Constitution.
The rule is so evidently fundamental and indispensable to the working of the
plan that it became unnecessary to state it in so many words. The mere fact that
such appointments would make the appointees serve for less than 9 years does not
argue against reading such limitation into the constitution, because the
nine-year term cannot be lifted out of context and independently of the
provision limiting the terms of the terms of the first commissioners to nine,
six and three years; and because in any event, the unexpired portion is still
part and parcel of the preceding term, so that in filling the vacancy, only the
tenure of the successor is shortened, but not the term of office.

It may be that the appointing power has sufficient inducements at hand to
create vacancies in the Commission, and find occasion for appointments thereto,
whenever it chooses to do so. That possibility, however, would not in any way
justify this Court in setting at naught the clear intention of the Constitution
to have members of Commission appointed at regular 3-year intervals.

It is argued that under the rule, one may be appointed for a much shorter
term than nine years, say one year or even less, and his independence would be
thereby reduced. The point is, however, that the majority of the Commission
would not be affected (save in really exceptional cases) and independence of the
majority is the independence of the whole Commission.

For the same reasons it must be admitted that the terms of the first three
Commissioners should be held to have started at the same moment, irrespective of
the variations in their dates of appointment and qualification, in order that
the expiration of the first terms of nine, six and three years should lead to
the regular recurrence of the three-year intervals between the expiration of the
terms. Otherwise, the fulfillment and success of the carefully devised
constitutional scheme would be made to depend upon the willingness of the
appointing power to conform thereto.

It would be really immaterial whether the terms of the first Commissioners
appointed under the Constitutional provision should be held to start from the
approval of the constitutional amendment (December 2, 1940), the reorganization
of the Commission under C. A. 657, on June 21, 1941, or from the appointment of
the first Chairman, Honorable Jose Lopez Vito, on May 13, 1941. The point to be
emphasized is that the terms of all three Commissioners appointed under the
Constitution began at the same instant and that, in case of a belated
appointment (like that of Commissioner Enage), the interval between the start of
the term and the actual qualification of the appointee must be counted against
the latter. No other rule could satisfy the constitutional plan.

Of the three starting dates given above, we incline to prefer that of the
organization of the constitutional Commission on Elections under Commonwealth
Act 657, on June 21, 1941, since said act implemented and completed the
organization of the Commission that under the Constitution “shall be”
established. Certainly the terms can not begin from the first appointments,
because appointment to a Constitution office is not only a right, but equally a
duty that should not be shirked or delayed. On the basic tenets of our
democratic institutions, it can hardly be conceded that the appointing power
should possess discretion to retard compliance with its constitutional duty to
appoint when delay would impede or frustrate the plain intent of the fundamental
law. Ordinarily, the operation of the Constitution can not be made to depend
upon the Legislature or the Executive, but in the present case the generality of
the organizational lines under Article X seems to envisage prospective
implementation.

Applying the foregoing rulings to the case at bar, we find that the terms of
office of the first appointees under the constitution should be computed as
follows:

Hon. Jose Lopez Vito, Chairman, nine-year term, from June 21, 1941 to June
20, 1950.

Hon. Francisco Enage, Member, six year term, from June 21, 1941 to June 20,
1947.

The first 3 year term, from June 21, 1941 to June 20, 1944, was not
filled.

Thereafter, since the first three-year term had already expired, the
appointment (made on July 12, 1945) of the Honorable Vicente de Vera must be
deemed for the full term of nine years, from June 21, 1944, to June 20,
1953.

The first vacancy occurred by expiration of the initial 6-year term of
Commissioner Enage on June 21, 1937 (although he served as de facto
Commissioner until 1949). His successor, respondent Rodrigo Perez, was named for
a full nine-year term. However, on the principles heretofore laid, the nine-year
term of Commissioner Perez (vice Enage) should be held to have started in June
21, 1947, to expire on June 20, 1956.

The second vacancy happened upon the death of Chairman Jose Lopez Vito, who
died on May 7, 1947, more than two years before the expiration of his full term.
To succeed him as Chairman, Commissioner Vicente de Vera was appointed. Such
appointment, if at all valid, could legally be only for the unexpired period of
the Lopez Vito’s term, up to June 20, 1950.

To fill the vacancy created by Vera’s assumption of the Chairmanship,
Commissioner Leopoldo Rovira was appointed on May 22, 1947. Pursuant to the
principles laid down, Rovira could only fill out the balance of Vera’s term,
until June 20, 1953, and could not be reappointed thereafter.

Commissioner Vera’s tenure as Chairman (vice Lopez Vito) expired, as we have
stated, on June 20, 1950, the end of Lopez Vito’s original term. A vacancy,
therefore, occurred on that date that Vera could no longer fill, since his
reappointment was expressly prohibited by the Constitution. The next Chairman
was respondent Commissioner Domingo Imperial, whose term of nine years must be
deemed to have begun on June 21, 1950, to expire on June 20, 1959.

The vacancy created by the legal expiration of Rovira’s term on June 20, 1953
appears unfilled up to the present. The time elapsed, as we have held, must be
counted against his successor, whose legal term is for nine years, from June 21,
1953 to June 20, 1962.

The fact must be admitted that appointments have heretofore been made with
little regard for the Constitutional plan. However, if the principles set in
this decision are observed, no difficulty need be anticipated for the
future.

And it appearing, from the foregoing, that the legal terms of office of the
respondents Perez and Imperial have not as yet expired, whether the original
terms started from the operation of the Constitutional amendments or the
enactment of C. A. 657, the petition for quo warranto is hereby
dismissed without costs.

Pablo, Bengzon, Montemayor, Jugo, Labrador, and Concepcion,
JJ., concur.

---

^[1] 85 Phil., 101.

^[2] 85 Phil., 126.

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CONCURRING AND DISSENTING OPINION

PADILLA, J., concurring and dissenting:

I agree to the opinion of Mr. Justice J.B.L. Reyes except as to the
prohibition on reappointment. I believe the prohibition applies only to those
who have served a term of nine years.

BAUTISTA ANGELO, J., dissenting and concurring:

This case concerns the interpretation of the provision of the Constitution
regarding the tenure of office of the members of the Commission on Elections who
are appointed to succeed those first appointed in case they resign, retire, or
die before the expiration of their term of office. The majority holds that the
appointees can hold office only for the unexpired term even if their
appointments run for a full term of nine years. With this I disagree. The
pertinent provision of the Constitution is contained in section 1, Article X,
which reads:

“Section 1. There shall be an independent Commission on Elections composed of
a Chairman and two other Members to be appointed by the President with the
consent of the Commission on Appointments, who shall hold office for a term of
nine years and may not be reappointed. Of the Members of the Commission first
appointed, one shall hold office for nine years, another for six years, and the
third for three years. The Chairman and the other Members of the Commission on
Elections may be removed from office only by impeachment in the manner provided
in this Constitution.”

It would appear that the framers of the Constitution intended to give to the
members of the Commission on Elections a term of office of nine years without
reappointment. The only exception is with regard to the first appointees one of
whom shall hold office for nine years, another for six years, and the third for
three years. With regard to the latter, nothing is provided as to their
reappointment which led some members of the Court to believe that they can be
reappointed provided the whole tenure would not exceed nine years. The
Constitution is likewise silent as to the manner any vacancy that may occur in
the positions held by the members first appointed should be filled.

I fully agree with the theory that the purpose of providing for a difference
of three years in the tenure of office of the members first appointed is to
establish a cycle or rotation system to prevent a four-year administration from
appointing more than one member not only to insure the continuity of the policy
of the Commission on Elections but also to safeguard its independence and that
of its members. This purpose is plausible if only it can be carried out to the
letter, but experience has shown that it is impracticable and has never been
observed either by the Chief Executive or by Congress. An analysis of the
appointments heretofore made to fill vacancies in the membership of said
Commission will bear this out. The Chief Executive in filling the vacancies in
the positions held by the members first appointed have extended appointments for
a term of nine years never for the unexpired period, and these appointments have
always met the sanction of Congress.

This uninterrupted practice and contemporaneous construction placed on the
above provision of the Constitution by the two branches of our Government, the
executive and the legislative, cannot lightly be brushed aside because they are
the constitutional agencies which have adopted that amendment to the
Constitution and have implemented it having due regard for its provision of
events. And such interpretation should be given due weight and recognition if we
are to accord due respect to the principle of comity that should exists among
the three branches of the Government

“This official ruling of the executive officials is now entitled to
consideration by the courts. Courts will and should respect the contemporaneous
construction placed upon a statute by the executive officers whose duty it is to
enforce it, and unless such interpretation is clearly erroneous will ordinarily
be controlled thereby. (In re Allen (1903), 2 Phil., 630, following Penneyer
vs. McConnaughy (1890), 140 U. S. 363, Government of Philippine Islands
Ex. Rel. Municipality of Cardona vs. Municipality of Binangonan (1916),
34 Phil., 518).” (Molina vs. Rafferty, 37 Phil., 545, 555).

“At the same time, the contemporaneous construction of the law by two
departments of the Government—one of the legislative branch responsible for its
enactment, and the other the effective branch responsible for its
enforcement—while not controlling on the Judiciary, is entitled to our
respectful consideration. For the orderly and harmonious interpretation and
advancement of the law, the courts should, when possible, keep step with the
other departments.” (Yra vs. Abano, 52 Phil., 380, 384.)

“And it is a rule repeatedly followed by this court that the construction
placed upon a law at a time by the officials in charge of enforcing it should be
respected.” (Guanio vs. Fernandez, 55 Phil., 814,
819.)

The above interpretation seems to be the most reasonable and more in line
with the letter and spirit of the Constitution. The purpose is to establish “an
independent Commission on Elections” and it was thought the best way it could be
accomplished is to give to its members a term of office of nine (9) years in the
hope that this would give them that feeling of security which would make them
impartial in the performance of their functions. The provision regarding the
cycle or rotation system in the appointments of the members first appointed is a
further safeguard to promote such independence but if that cycle cannot be
maintained because of unavoidable human factors that may supervene, that should
not be allowed to stand against the above purpose of giving to every subsequent
appointee a term of office of nine (9) years. The former should give way to the
latter.

The theory that, merely to maintain the cycle at any cost, if a vacancy
occurs in the office of the members first appointed, the new appointee can only
be appointed for the unexpired term, would defeat the independence of the poll
body rather than promote it, for the new appointees would be holding their
positions without that feeling of security that would guarantee their
independence as they would be angling for a reappointment or for other plums in
the government service. Moreover, such interpretation would run counter to the
well-known rule that where only the length of the term is fixed by the
Constitution and neither the commencement nor termination is prescribed, or
nothing is provided regarding the filling of the unexpired term, the subsequent
appointee holds the office for full term, and not merely f6r the unexpired
portion. And our Constitution comes within the purview of this rule.

“When merely the length of the term is fixed, without reference to an
unexpired term, or to a vacancy in the term of office, as distinguished from a
vacancy in the office itself, it is held in some cases that on the happening of
a vacancy the office reverts to the people or sovereign and when again vested it
is not for the unexpired term, but for the full term. This rule, in the absence
of constitutional or statutory provisions regulating the filling of vacancies,
has been applied in the case of elective officers where the law provides that
they shall be elected for a term of a specified number of years.” (67 C. J. S.(
216.)

“On the other hand where no time is fixed for the beginning or end of the
period during which a public office is to be occupied, and the duration of such
period is alone designated, the contrary conclusion is reached, and a person
selected to fill a vacancy in such office may serve the full term and not merely
the unexpired balance of the prior incumbent’s term. This is true especially
where no authority exists in the legislature for fixing the beginning or the
ending of the term, or where such authority rests in the legislature, and the
legislature has not exercised it. The reason for this rule is that when a
vacancy happens by death, resignation, or removal, the term is gone and the
office reverts, as it did at common law to the crown, to be again filled on like
condition, for the full term prescribed.” (22 R. C. L., 553)

Why is it that the Constitution does not contain any provision relative to
the filling of any vacancy in the office held by the members first appointed?
The answer is simple: the first sentence of section 1, Article X already
provides that future appointments should be made for a term of nine (9) years.
If the intention were other- wise, the framers of the Constitution would have
inserted therein a proviso similar to that covering vacancies in the office of
senators or representatives wherein it was clearly directed that the new
incumbent shall only serve for the unexpired term (Section 8, (2) Article VI,
Constitution).

If this theory is entertained it follows that respondent Domingo Imperial,
who was appointed on August 11, 1951 for a term of nine (9) years ending on July
12, 1960, and respondent Rodrigo D. Perez who was appointed on November 8, 1949,
for a term of nine (9) years ending on November 24, 1958, are still entitled to
their positions, and, therefore, the present petition for quo warranto should be
dismissed. As this is the conclusion reached by the majority opinion, I concur
in the result

Paras, C.J., and Reyes, A., J., concur.

Petition dismissed.