MARCIANO INOCENTE, ET AL., PETITIONERS AND APPELLANTS, VS. MAMERTO S. RIBO, ET AL., RESPONDENTS AND APPELLEES.

This is a quo warranto case. The petitioners claim that
they are entitled to hold the office of provincial guards at the
provincial jail in the municipality of Baybay, Province of Leyte, to
which they were duly appointed; that except Mamerto S. Ribo and Melecio
Palma, provincial governor and treasurer, respectively the respondents,
who replaced them in their positions, are not entitled thereto, because
their appointments are unauthorized, and for that reason they pray that
they and not the respondents be declared entitled to the office of
provincial guards with station at Baybay, Leyte.

At the hearing the parties submitted a stipulation which reads thus—

Come now the parties hereto duly assisted by their respective
counsel and to this Honorable Court respectfully submit stipulation of
facts as follows:

1. That the parties, petitioners and respondents, are residents of the Province of Leyte within the jurisdiction of this Court;
2. That the positions of provincial guard stationed in the Baybay
   provincial jail, subject matter of this petition, were duly created by
   law;

3. That the petitioners were duly appointed
   members of the Provincial Guard Corps stationed at Baybay, Leyte, on
   the dates indicated after their respective names, and they duly
   qualified and assumed office, discharged their duties as such
   provincial guards on the dates herein below indicated, to wit:

Name of Petitioner	Date of Appointment	Position
1. Marciano Inocente	Sept. 1, 1949	Sgt., P. G.
2. Cresencio Bagaslao	Sept. 1, 1949	Pvt., P. G.
3. Sulpicio Rule	Feb. 15, 1949	Pvt., P. G.
4. Alejandro Acedillo	Aug. 8, 1949	Pvt., P. G.
5. Telesforo Galenzoga	Sept. 1, 1949	Pvt., P. G.
6. Francisco Sevilla	Oct. 1, 1950	Pvt., P. G.
7. Diome Medina	Aug. 12, 1950	Pvt., P. G.
8. Epifanio Enclona	Feb. 20, 1949	Pvt., P. G.
9. Diosdado Piastro	Sept. 1, 1949	Pvt., P. G.
10. Quirino Japon	Sept. 16, 1949	Pvt., P. G.
11. Epifanio Polistico	July 1, 1948	Pvt., P. G.
12. Adriano Catorce	Sept. 16, 1949	Pvt., P. G.
13. Adriano Palugod	Aug. 9, 1949	Pvt., P. G.
14. Florderico Cortez	Aug. 9, 1949	Pvt., P. G.

as shown in Exhibits “A” to “A-13.”

4. That Marciano Inocente and Telesforo Galenzoga
   are civil service eligible having passed the patrolmen examinations as
   shown by Exhibits “B” and “B-1,” and the rest of the petitioners are
   non-eligibles but Cresencio Bagaslao, Sulpicio Rule, Alejandro Acedillo
   and Adviano Gatorce, are veterans and the rest recognized guerillas
   under Republic Act No. 65; Marciano Inocente took the place of Ciriaco
   Fallerina, also civil service eligible, as shown in Exhibit “1.”

5. That
   from the respective dates of petitioners’ assumption of office an the
   termination of their services, as herein below indicated, to wit:

Name of Petitione		Assumption	Termination
1. Marciano Inocente		Sept. 6, 1949	Oct. 31, 1950
2. Cresencio Bagaslao		Sept. 1, 1949	Oct. 31, 1950
3. Sulpicio Rule		Feb. 16, 1949	Nov. 9, 1950
4. Alejandro Acedillo		Aug. 17, 1949	Oct. 31, 1950
5. Telesforo Galenzoga		Sept. 1, 1949	Oct. 31, 1950
6. Francisco Sevilla		Oct. 4, 1950	Oct. 31, 1950
7. Diome Medina		Aug. 18, 1950	Oct. 31, 1950
8. Epifanio Enclona		Feb. 23, 1948	Oct. 31, 1950
9. Diosdado Piastro		Sept. 1, 1949	Nov. 9, 1950
10. Quirino Japon		Sept. 16, 1949	Oct. 31. 1950
11. Epifanio Polistico		Feb. 16, 1949	Oct. 31. 1950
12. Adriano Catorce		Sept. 16, 1949	Oct. 31. 1950
13. Adriano Palugod		Aug. 11, 1949	Oct. 31, 1950
14. Florderico Cortez		Aug. 10, 1949	Oct. 31, 1950

the said petitioners have continuously performed the duties of their office regularly and without interruption.

6. That on the dates indicated after their names as
   above shown, the petitioners’ services were ordered terminated by the
   Provincial Governor, Hon. Mamerto S. Ribo, as shown in Exhibits “C” to
   “C-13,” and their positions were occupied by the following:

		Date assumed office
1. Nazario Viterbo	vice Alejandro Acedillo	Nov. 1, 1950
2. Ponciano Loterte	vice Epifanio Enclona	Nov. 1, 1950
3. Filemon Lagutan	vice Quirino Japon	Nov. 1, 1950
4. Juan Gaones	vice Adriano Palugod	Nov. 1, 1950
5. Jovito Matillano	vice Diosdado Piastro	Nov. 1, 1950
6. Quirico Llones	vice Florderico Cortez	Nov. 1, 1950
7. Victoriano Zabate	vice Epifanio Polistico	Nov. 1, 1950
8. Genaro Gelig	vice Telesforo Calenzoga	Nov. 1, 1950
9. Silvino Baquero	vice Sulpicio Rule	Nov. 8, 1950
10. Francisco Dichosa	vice Cresencio Bagaslao	Nov. 1, 1950
11. Igmedio Paciencia	vice Adriano Catorce	Nov. 1, 1950
12. Bernardo Corsanes	vice Diome Medina	Nov. 1, 1950
13. Andronico Morfe	vice Clodualdo Enabore	Oct. 28, 1950
14. Zosimo Macaraya	vice Gavino Salvation	Nov. 8, 1950

as shown by documents which are marked Exhibit “3” to “16”.

7. That since the aforesaid petitioners have been
   duly appointed and qualified and assumed the performance of their
   respective offices, they did not resign nor have they been removed
   either for misconduct, in competency, disloyalty to the Philippine
   Government, neither have they ever committed any irregularity in the
   performance of their duties nor have they violated any law or duty or
   committed any act that may cause abandonment of their duties nor have
   they been investigated for cause but they had to give up their
   positions by virtue of the order of termination. Petitioner Marciano
   Inocente signed the memorandum, dated October 31, 1950, which is marked
   Exhibit “2”.

8. That until the present the
   respondents, Governor, Treasurer and Guards, nave refused and continue
   to refuse the petitioners their respective positions above mentioned
   and they have not been paid their salaries from the time of their
   termination of their services or removal from their offices until the
   present.

9. That the respondent, Mamerto S. Ribo,
   appointed the respondents on the dates indicated after their names and
   the latter took oath and assumed office as specified in paragraph 6 and
   continue to hold the same up to the present time and have been paid
   their respective salaries from November 1, 1950 to March 15, 1951
   against the protests of the petitioners.

10. Respondents and petitioners admit the authenticity and due execution of
    Exhibits “D,” and “D-1,” “D-2,” and “D-3,” “E,””E-1,” and “F” of
    petitioners and of Exhibits “3” to “28” of respondents without
    admitting their validity, legality nor the conclusions contained
    therein.

Wherefore, the parties to this Honorable Court most respectfully
submit the foregoing stipulation of facts with the reservation to
submit such additional evidence as each party deem necessary.

Baybay, Leyte, March 19, 1951.

Attys. PRISCO M. BITOS & LEON	Attys. DOMINGO VELOSO, ZOSIMO
C. NUEVAS, Counsel for the	J. CABLITAS and FILEMON SA-
respondents.	AVEDRA, Counsel for the peti–
	tioners.
By: (Sgd.) PRISCO M. BITOS
(Sgd.) ANDRES T. DELFINO	By: (Sgd.) Zosimo J. Cablitas
Counsel for the Provincial
Governor and Provincial
Treasurer
(Pages-88, Record of the Case.)

Exhibit 22 is an indorsement dated 8 November 1950 where by
direction of the provincial governor the secretary of the provincial
board informed Marciano Inocente that Jose Tualla had been assigned as
deputy warden of the Baybay provincial jail and that his (Inocente’s)
request to remain in the service had been granted not as deputy warden
but as sergeant assigned to Maasin provincial jail and such assignment
to take effect on the date Jose Tualla assumes office as deputy warden
of the Baybay provincial jail. It does not appear that Jose Tualla has
assumed the office. Exhibit 23 is a letter dated 3 February 1951 where
by direction of the provincial governor the secretary of the provincial
board requested Telesforo Galenzoga to come to Tacloban to report for
duty as provincial guard at the Tacloban provincial jail, in view of
the information furnished by the Commissioner of Civil Service that he
(Telesforo Galenzoga) was a civil service eligible.

Upon the foregoing stipulation and documentary evidence presented,
the trial court held that, with the exception of Marciano Inocente and
Telesforo Galenzoga, who are civil service eligibles, the petitioners
are not entitled to hold the position as provincial guards and that
Marciano Inocente having refused the transfer from the Baybay
provincial jail where he was deputy provincial warden to Maasin
provincial jail as sergeant of the provincial guards, and Telesforo
Galenzoga having refused to report for duty as provincial guard at
Tacloban provincial jail, they are no longer entitled to their original
positions, for, in the opinion of the trial court, the provincial
governor is vested with authority, control and supervision of the
provincial guards in his province and he alone has the power and
discretion to determine the assignment of said provincial guards within
the province as required by the public interests. The trial court
further held that the refusal of the two petitioners to be transferred
constitutes an abandonment of office. Nevertheless, the trial court
held that they are entitled to their respective salaries from the date
they were unjustifiably dismissed to the date when they were offered
reinstatement in the service. Upon these grounds, the trial court
dismissed the petition for quo warranto but ordered the
provincial treasurer of Leyte to pay the salaries of Marciano Inocente
and Telesforo Galenzoga as sergeant and provincial guard, respectively,
from 31 October 1950, when they were dismissed from the service, to 8
November 1950 and 3 February 1951, respectively, when the offer to
reinstate them in the service was unjustifiably refused, without
special pronouncement as to costs. From this judgment petitioners have
appealed.

The only question raised by the petitioners Marciano Inocente and
Telesforo Galenzoga is that being civil service eligibles, they are
entitled to their positions as sergeant of the provincial guards and
provincial guard, respectively, in the Baybay provincial jail, Leyte,
to which they were appointed, and may be removed only for cause and in
accordance with the prescribed legal process. Neither in the answers
filed for the respondents provincial governor and treasurer of Leyte
who are just nominal parties, nor in the answer for the rest of the
respondents does the point of reinstatement, transfer and refusal to be
transferred is raised and joined as issue by the parties. In the
stipulation of facts the question of reinstatement, transfer and
refusal to be transferred is not submitted for judgment of the trial
court. It appearing that they were removed without cause and not in
accordance with law, as prescribed and provided for in Rep. Act No.
557, their removal is unauthorized and unlawful. They are entitled to
be reinstated and to their salary for the whole period of their
unlawful ouster from office.

It is claimed, however, that the review of the judgment appealed
from cannot sidetrack the question of reinstatement and transfer of,
and refusal to be transferred by, the petitioner Marciano Inocente,
which in the opinion of the trial court constitute an abandonment of
office, because the trial court passed upon it. As already pointed out,
there is no evidence that Jose Tualla has assumed the position of
deputy warden of the provincial jail at Baybay, a condition required
before petitioner Marciano Inocente could assume the position of
sergeant of the provincial guards at the Maasin provincial jail. He
cannot be deemed to have refused a transfer to a position which he
could not assume. If he cannot be deemed to have refused the transfer,
there is no basis for the pronouncement that he abandoned a position or
office which he has not assumed because he could not assume it. An
office cannot be abandoned by one who has not occupied it. Apart from
this, the provincial governor cannot remove petitioners Marciano
Inocente and Telesforo Galenzoga who are civil service eligibles. They
may be removed only in accordance with the provisions of Republic Act
No. 557. The provincial governor cannot transfer them from the
positions to which they were appointed to another, pursuant to section
2081 of the Revised Administrative Code, as amended by Republic Act No.
528, which took effect on 16 June 1950. The pertinent provisions of
said section are:

* * * the Provincial Governor shall, any provision
of existing law to the contrary notwithstanding, appoint, upon
recommendation of the chief provincial official concerned, all the
subordinate officers and employees in the various branches of the
provincial government whose salaries, compensation or wages are paid,
wholly from provincial funds in conformity with the provisions of the
Civil Service Law, except those appointments are now or may hereafter
be vested in the President or proper Department Head, teachers and
other school employees and transcient officials or employees who shall,
as heretofore, be appointed by the proper chief of provincial office
with the approval of the Department Head concerned: * * *.

Transcient
officials or employees shall be understood for the purposes of this Act
to include those who, under the rules and regulations of the
Department, bureaus and offices concerned, may, from time to time be
transferred from one * * * municipality * * * to another in the
interest of the public service.

Employees who are civil
service eligibles at the time of the approval of this Act and therefore
shall continue in the service unless removed for cause in accordance
with the Civil Service rules and regulations.

If the petitioners Mareiano Inocente and Telesforo Galenzoga were
appointed as sergeant of the provincial guards and provincial guard,
respectively, for the province of Leyte and not with a definite station
at Baybay, Leyte, their respective transfers to Maasin and Tacloban,
Leyte might have a different legal aspect and effect. There is no proof
that under the rules and regulations of the Department, bureau and
office concerned, the petitioners are transient officials or employees
who may, from time to time, be transferred from one municipality to
another in the interest of the public service.

The claim of the other petitioners is that they are entitled to
preference over the respondents who are not civil service eligibles,
because although they are also not civil service eligibles, petitioners
Cresencio Bagaslao, Sulpicio Rule, Alejandro Acedillo and Adriano
Catorce are veterans, and the rest of them are members or enlisted men
of good standing of recognized guerrilla organizations, under Republic
Act No. 65, as amended by Republic Act No. 154, as agreed in paragraph
4 of the stipulation of facts, and were all appointed within the
three-year period provided for in Republic Act No. 65, as amended, from
the date of the approval of the Act, with the exception of Diome Medina
and Francisco Sevilla who were appointed on 18 August 1950 and 4
October 1950, respectively, or beyond the said three-year period,
according to paragraph 5 of the stipulation. The reason for the
preference of a veteran is stated in Orais vs. Ribo,^[*] 49 Off. Gaz.,
5386, 5393.

* * * The replacement of * * * non-eligibles but
veterans by * * * non-eligibles, is unlawful. The former are preferred
under Republic Act No. 65, as amended by Republic Act No. 154, they
having been appointed within the term provided for in said Republic
Acts. If the preference of a veteran is to be confined to appointment
and promotion only and does not include the right to continue to hold
the position to which he was appointed until an eligible is certified
by the Commissioner of Civil Service, then he would be in no better
situation than a non-eligible who is not a veteran. The appointment of
a veteran, however, is subject to cancellation or his removal from
office or employment must be made by competent authority when the
Commissioner of Civil Service certifies that there is an eligible.

It does not appear from the stipulation of facts that the
respondents are civil service eligibles or that they are officers and
enlisted men of the Philippine Army or of recognized or deserving
guerrillas who took active participation in the resistance movement,
and/or in the liberation drive against the enemy. And even if they were
veterans under Republic Act No. 65, as amended, the respondents are not
entitled to be appointed to replace the petitioners who are veterans,
because the former were not appointed within the period provided in the
Act. For that reason the temporary appointment of the respondents
Nazario Baterbo, Ponciano Loterte, Filemon Lagutan, Juan Gaones, Jovito
Matillano, Quirico Llones, Victoriano Zabate, Genaro Gelig, Silvino
Baquerie, Francisco Dichosa and Igmidio Paciencia, to replace the
petitioners Alejandro Asedillo, Epifanio Enclona, Quirino Japon,
Adriano Palugod, Diosdado Piastro, Florderico Cortez, Epifanio
Polistico, Telesforo Galenzoga, Sulpicio Rule, Cresencio Bagaslao and
Adriano Catorce, is unlawful. The temporary appointment of respondent
Bernardo Corsanes under section 682 of the Revised Administrative Code
to replace Diome Modina, a veteran, whose preference for appointment
had lapsed, is lawful. Petitioner Diome Modina who was appointed on 18
August 1950, or beyond the three-year period provided for in Republic
Act No. 65, as amended, is no longer entitled to his position, because
pursuant to section 682 of the Revised Administrative Code, he may be
replaced by another temporary officer. The three-month period provided
for in section 682 of the Revised Administrative Code allows under
certain conditions the holding of an office or employment by a
temporary appointee during the whole term but does not confer upon him
the right to hold the office or employment for the full term. The
temporary appointment of Andronico Morfe and Zosimo Macaraya under
section 682 of the Revised Administrative Code to replace Clodualdo
Enabore and Gavino Salvacion, who are not parties to this quo warrcmto
proceedings and whose qualifications are unknown, is lawful. The
petition of Francisco Sevilla who, according to the stipulation of
facts, has not been replaced by any of the respondents, must be
dismissed.

For the foregoing reasons the judgment appealed from is reversed.
The petitioners are entitled to their positions as sergeant of the
provincial guards and provincial guards, respectively, with station at
the Baybay provincial jail, Leyte, and to their salaries during the
whole period of their unlawful separation from their office. The
petition of Francisco Sevilla is dismissed. The petition to oust
respondents Bernardo Corsanes, Andronico Morfe and Zosimo Macaraya is
denied. No special pronouncement as to costs.

Pablo, Bengzon, Jugo, Bautista Angelo, and Concepcion, JJ., concur.

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^[*] 93 Phil., 985.

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DIOKNO, M.,: disidente:

Disiento de la anterior decision, por la razon de que, en mi humilde
opinion, un guardia provincial puede ser repuesto y destinado por el
Gobernador Provincial a otra estacion policiaca de la provincia dentro
de la misma, por ejemplo en otra carcel provincial de la misma.

Labrador, J., concurs.