MATIAS S. CARILLO, PETITIONER, VS. THE COURT OF APPEALS AND CESAR U. DE LA VICTORIA, CORNELIO DE LA REY, AND MUNICIPALITY OF MATANAO, DAVAO, RESPONDENTS.

The lone point of controversy^[1]
in this seventeen-year old Quo Warranto
suit which commenced on March 16, 1960
before the Court of First Instance of Davao centers
on the interpretation and application of Sec. 1, R.A. 1551 which provides:

“Section 1.  Hereafter,
all employees whose salaries are paid out of the general funds of the
municipality shall, subject to the civil service law, be appointed by the
Municipal Mayor upon the recommendation of the corresponding chief of office; Provided,
That in case of disagreement between the chief of office concerned and the
municipal mayor, the matter shall be submitted for action to the proper
provincial department head whose decision shall be final:  Provided, further, That the chief of
police and members of the police force of the municipality shall be appointed
by the mayor with the consent of the municipal council.”

In his complaint, petitioner herein, Matias
S. Carillo, sought his reinstatement as chief of
police of the municipality of Matanao, province of Davao, claiming that he was validly appointed to said
position but was subsequently replaced by the respondent Municipal Mayor Cesar
U. de la Victoria with the appointment of the other respondent Cornelio de la Rey as chief of police.

The Court of First Instance on motion of respondent-public
officials dismissed Carillo’s complaint holding that
the evidence of Carillo does not establish an
essential element for the validity of his appointment which is the approval or
consent of the municipal council.  Carillo appealed to the Court of Appeals but the latter
court affirmed the trial court’s order of dismissal.^[2]
Hence, this Petition for Review on Certiorari.

The uncontroverted facts as summarized
in the brief filed by the Solicitor General for the respondents-appellees, follow:

“Petitioner-appellant was appointed Chief of Police of Lower Matanao effective July
8, 1957; (Exh. E).

“He was again appointed to that position effective July 8, 1958, but his appointment was
‘subject to the provision of Section 1 of Republic Act No. 1551.’ (Exh. F).

“Petitioner-appellant had previously qualified in the
examinations for Chief of Police conducted on January 11, 1963 (Exh. G) and
for patrolman taken on August 21, 1937
(Exh. H).

“Pursuant to Memorandum No. 1 s. 1960, issued by the newly
elected Mayor Cesar U. de la Victoria, petitioner-appellant was called to the
Mayor’s Office and asked to resign (Exhs. J, J-1 and
J-2).

“On January 11, 1960,
petitioner-appellant applied for and was granted leave of absence for sixty
days (Exhs. B and B-1).

“On March 13, 1960,
the petitioner-appellant notified the appellee Mayor
that he was not willing to serve as detached service but that he will serve
only as Chief of Police (Exh. A or 1).

“On May 15, 1960,
appellee de la Rey was
appointed Acting Chief of Police of Matanao, Davao, vice ‘Matias
S. Carillo (Lesser Civil Service Eligibility),’
effective May 16, 1960, and
was attested by the Provincial Treasurer under Section 20, Republic Act No.
2260.  This appellee
was then a regular junior teacher and regular senior teacher civil service
eligible.

“On May 16, 1960,
appellant could not discharge his duties as Chief of Police because appellee de la Rey had already
assumed office (Exh. D).” (pp. 1-2, appellee’s brief)

It is claimed by petitioner that the requirement of the law that
an appointment of a chief of police be made with the consent of the municipal
council was complied with in his case when the municipal council of Matanao in a special session held on July 11, 1957, approved the plantilla
of personnel with his name appearing as incumbent in the position of chief of
police for the fiscal year ending June 30, 1958.  Such approval to all intents and purposes
constituted consent by the municipal council to his appointment, petitioner
asserts.

Petitioner’s submittal is without legal basis.

We hold that under the law the approval by the municipal council
of an appointment of a chief of police must be express and should appear on the
appointment itself; the consent is not to be presumed or implied.  It is the approval of the municipal council
which gives validity to the appointment extended by the municipal mayor.  The raison d’etre
of the requirement is to be found in the nature of the functions of members of
the police force.  The maintenance of
peace and order is of vital concern to the community and more than any where
else appointments to the police force are to be based on integrity, honesty,
and competence of the appointees to be adjudged not only by the mayor who may
be guided solely by political considerations and personal loyalties but also by
members of the municipal council which after all is the legislative governing
body of the municipality.  The approval
of the Commissioner of Civil Service attests solely to the appointee’s civil
service eligibility, the attestation being “merely a check to assure
compliance with the civil service law.”^[3]

In Torres vs. The Municipal Council of Malalag,
Davao, et al., 1959, which the court a quo
correctly applied in deciding this case, the arguments to the contrary of
petitioner Carillo notwithstanding, this Court held inter
alia that inasmuch as Torres’ appointment as
patrolman showed neither approval of the municipal council nor that of the
Commissioner of Civil Service
and the right to the office cannot be based on a mere presumption, there was no
valid appointment extended to him and his petition for reinstatement
necessarily must fail.^[4]

Moreover, petitioner Carillo’s
assertion of a substantial compliance with the law loses its validity in the
face of the uncontrovertible – that the approved plantilla carrying his name as chief of police was only for the fiscal year
1957-58, after which he accepted a new appointment effective July 8,
1958 which was “subject to the provisions of Section 1 of Republic
Act No. 1551” (Exh. F, per appellee’s brief). 
Inasmuch as the new appointment of Carillo
states expressly that it is
subject to the consent and approval of
the municipal council (Sec. 1, R.A. 1551), and the record of the case is
ominously silent on the existence of such a consent, express or implied, there
is no complete appointment to speak of.

At the most, pending compliance with the condition, all that
petitioner Carillo was holding was a temporary
appointment as chief of police which could be terminated at any time with or
without cause.^[5]

In Taboada vs. Municipality of Badian,
May 31, 1961, L-14604, this
Court stated that one who holds a temporary appointment has no fixed tenure of
office; his employment can be terminated at the pleasure of the appointing
power, there being no need to show that the termination is for cause.^[6]

It is argued that Carillo was the only
one qualified to the position of chief of police as there was nobody in the
ranks of the police force of Matanao with higher
civil service eligibility than him.^[7]
That fact, however, even if true is inconsequential, for his civil service
eligibility affords him no protection or guarantee of security of tenure of
office after he had accepted a conditional appointment which was
temporary in nature while the condition was not fulfilled.

“Petitioner’s appointment being temporary, it can be
terminated at pleasure even if he is a civil service eligible.  And this holds true notwithstanding his badge
of eligibility for, having accepted a temporary appointment, he cannot invoke
the security of tenure guaranteed by our Constitution.  In fine, to him cannot apply the safeguard
embodied in Section 32 of the Civil Service Act of 1959 which provides:  ‘No officer or employee in the civil service shall be removed or suspended
except for cause as provided by law and after due process.'” (Edgardo R. Hojilla vs. Hon. Salvador
L. Mariño, et al., L-20574, Feb. 26, 1965, 13 SCRA 293, 296.  See also Tolentino
vs. De Jesus, supra).

Petitioner Carillo argues further that
his appointment (Exh. F) was duly attested to and
approved by the Civil Service Commissioner and it was such approval which gave
validity to his appointment.^[8]
This alleged approval is not admitted however in appellee’s
brief.  At any rate, We repeat that Carillo’s appointment, Exhibit F, was by its very terms
subject to Section 1, Republic Act 1551, and that the appointment was not
completed since the condition imposed by the foregoing provision of law had not
been fulfilled.  An appointment becomes
complete upon the performance of the last act required by law of the appointing
power.^[9]
The last act is the approval of the municipal council.  It is preposterous to state that the consent
or approval of the municipal council provided for in the law can be substituted
by the approval of the appointment by the Civil Service Commissioner.  The purpose of one is distinct from the
purpose of the other as We have indicated earlier.

“The approval by both the President and the Director of the
Civil Service of ‘acting’ appointments does not make the appointments
permanent.  For the President or the
Director of the Civil Service to convert an ‘acting’ appointment into a
permanent one would infringe the constitutional
provision (Article VII, section 10 (1) limiting the power of the Chief
Executive over local governments to ‘general supervision as may be provided by
law.’ To change the character of a municipal appointment beyond doubt
transcends ‘General supervision.'” (Juan B. Mendez vs. Rodolfo Ganzon, et al., L-10483, 1957, 101 Phil. 48, 49)

It now follows that inasmuch as petitioner Carillo
holds no valid right or title to the position of chief of police, the dismissal
of his quo warranto suit is in order.

Long standing jurisprudence upholds the rule that in a quo
warranto proceeding the person suing must show
that he has a clear right to the office allegedly held unlawfully by
another.  Absent that right, the lack of
qualification or eligibility of the supposed usurper is immaterial.^[10]

We agree with respondent appellate court that “one who
cannot show that he is entitled to occupy a public office, lacks the legal
personality to institute quo warranto
proceedings; in which case, it is not necessary to inquire into the right of
the respondent to occupy said office (Guekeko vs. Santos,
76 Phil. 237; Topacio Nueno
vs. Angeles, 76 Phil. 12).”^[11]
It is axiomatic that where there is a right, there is a remedy.  In the instant case petitioner has not
established any right to the office he claims, hence, no remedy or relief of
reinstatement may be accorded him.

PREMISES CONSIDERED, We affirm the dismissal of
petitioner’s complaint without pronouncement as to costs.

So Ordered.

Teehankee, (Chairman), Makasiar, Antonio, and Martin,
JJ., concur.

^[1]
Petitioner-appellant cites in his brief Art. 2199 of the Revised Administrative
Code as the provision of law involved; however, Sec. 2199 has been repealed by
R.A. 1551, which took effect on June
16, 1956.  Hence, the law in
point is Sec. 1, R.A. 1551 and Sec. 2259 of the Revised Administrative Code,
quoted hereunder:

“Sec. 2259.  Appointment of members of police force.  – The chief of police and other members of
the force shall be appointed by the mayor, with the consent of the municipal
council.  In case of disagreement between
the mayor and the municipal council regarding the appointment of the chief of
police, if such disagreement extends over more than three months after the
submission of the nomination by the mayor, the provincial board shall take
action and decide such disagreement, and its decision shall be final.”

^[2]
The decision of the Special Sixth Division in CA-G.R. No. 32477-R was promulgated on February 22, 1965,
with Justice Gregorio S. Narvasa, ponente, and Justices
Francisco R. Capistrano and Antonio G. Lucero, concurring, pp. 10-13 rollo.

^[3]
Villanueva vs. Balallo, L-17745, Oct. 31, 1963, 9 SCRA 407, 410-411

^[4]
106 Phil. 638, 644-645.

See also Aguila
vs. Castro, et al., L-23778, Dec.
24, 1965, 15 SCRA
565, 568; Valdez vs. Gutierrez, et al., L-25819, May 22, 1968, 23 SCRA 661.

^[5]
Aguila vs. Castro, supra, p. 568,
citing Tolentino, et al. vs. Torres, 96 Phil.
522; Pineda vs. Velez, 100
Phil. 1085.

See also Tulawie
vs. Provincial Agriculturist of Sulu, L-18945,
July 31, 1964, 11 SCRA 611; Hojilla vs. Mariño, L-20574, Feb. 26, 1965, 13 SCRA 293; Santos vs.
Chico, L- 24155, Sept. 28, 1968, 25 SCRA 343; Barañgan
vs. Hernando, et al., L-28652, Feb. 28, 1969, 27 SCRA 239; Ramos vs.
Romualdes, L-27946, April 30, 1970, 32 SCRA 590; Mendiola vs. Tancinco, 52
SCRA 66; Tolentino vs. De Jesus, 56 SCRA 167; Alfiler vs. De los
Angeles, L- 27314, Sept. 26, 1974, 60 SCRA 17.

^[6]
2 SCRA 412, 417, citing U.P., et al. vs. CIR, et al., 107 Phil. 848 &
Montero, et al. vs. Castellanes, 108 Phil.
744.

To the same effect, following a
long line of decisions, are these cases, among others:  Ferrer vs.
Hon. De Leon, et al., 109 Phil. 202; Quitiquit vs.
Villacorta, 107 Phil. 106; Mendez vs. Ganzon, et al., 101 Phil. 48; Quiatchon,
et al. vs. Villanueva & City
of Bacolod, 101 Phil. 989; Paña,
et al. vs. City Mayor of Ozamis, 94 Phil. 103;
Orais, et al. vs. Ribo,
et al., 93 Phil. 985; Cuñado vs. Gamus, L-16782, May 20, 1963, 8 SCRA 77; Jimenea vs. Guanzon, L-24795, Jan. 29, 1968, 22 SCRA 224; Santos vs. Chico, L-
24155, Sept. 28, 1968, 25 SCRA 343; Barañgan vs.
Hernando, et al., L-28652, Feb.
28, 1969, 27 SCRA 239

See also the cases under footnote 4.

^[7]
p. 8, appellant’s brief.

^[8]
pp. 3, 6, appellant’s brief.

^[9]
Villanueva vs. Balallo, supra.

^[10]
Moran, Rules of Court, Vol. 3, 1970 ed., pp. 208-209; Acosta vs. Flor, 5 Phil. 18; Concordia vs. Tolentino,
93 Phil. 471; Adante vs. Dagpin,
96 Phil. 789; Castro vs. Solidum, 97 Phil.
278; Lota vs. CA, L-14803, June 30, 1961, 2
SCRA 715; Batario, Jr. vs. Parentela,
Jr. L-20485, Nov. 29, 1963, 9 SCRA
601; Caraan-Medina vs. Quizon,
L-23162, Oct. 29, 1966, 18 SCRA 562; Bongbong vs.
Parado, L-30361, June 28, 1974, 57 SCRA 623;
Philippine Public School Teachers Association (PPSTA) vs. Apostol, et al., L-26966, Feb. 28, 1974, 55 SCRA 743.

^[11]
p. 13, rollo.