JOSE ABAYA, PETITIONER, VS. ALEJANDRINO A. ALVEAR, RESPONDENT.

MONTEMAYOR, J.:


There is no dispute as to the following facts: The petitioner JOSE ABAYA now
sixty-one years of age and a member of the Bar, was on October 9, 1920 appointed
to the post of Justice of the Peace of the towns of Cervantes, Angaki,
Concepcion and San Emilio, province of Ilocos Sur and he qualified for the
position and discharged the duties thereof. In 1923, the municipalities of
Concepcion and San Emilio were excluded from his territorial jurisdiction and he
continued to discharge his judicial functions as Justice of the Peace of
Cervantes and Angaki up to December 31, 1941, a few days before the Japanese
occupation forces arrived in the town of Cervantes. On April 17, 1943 said
petitioner was given an appointment as Justice of the Peace of Cervantes only,
by Jorge B, Vargas, chairman of the “Philippine Executive Commission”. Then on
May 1, 1944, Jose P. Laurel as “President of the Republic of the Philippines”
extended to him another appointment as Justice of the Peace of the same town of
Cervantes, Ilocos Sur. Abaya evidently accepted these appointment is made during
the Japanese occupation and continued to discharge his Judicial functions as
Justice of the Peace but only for the town of Cervantes, until the month of
November, 1944 when, because of the threat of military clashes between Japanese
forces on one side and the Filipino guerrillas on the other, he left his post
and fled to the mountains for safety.

After liberation and upon tiie establishment of what the parties term a
military government, in Ilocos Sur, Abaya was appointed by the military Governor
as Justice of the Peace of the municipalities of Cervantes and Angaki, Ilocos
Sur, Then, on August 1, 1945, Mauro Versoza, acting as delegate of the
Department of the Interior, designated the petitioner temporary Justice of the
Peace of Cervantes and Angaki, the appointment to “terminate as soon as your
successor is appointed by the central office”. Upon the res- toration of peace
and order and upon normal functioning of the Commonwealth government, petitioner
was, on February 8, 1946, given an ad interim appointment by President
Sergio Osmeña to the post of Justice of the Peace for the towns of Cervantes
and Angaki. However, when this appointment was submitted to the Commission on
Appointments, it was turned down. Abaya was given another appointment as Justice
of the Peace by President Manuel Roxas for the same municipalities of Cervantes
and Angaki on December 5, 1946 but said appointment was left without being acted
upon by the Commission on Appointments.

On June 13, 1947 and presumably because of the failure of the Commission on
Appointments to approve the appointment of the petitioner, President Manuel
Roxas extended an ad interim appointment to the post of Justice of the
Peace of Cervantes and Angaki in favor of the respondent Alejandrino A Alvear
who accepted said appointment and assumed office on July 5, 1947. Alvear’s
appointment was later confirmed by the Commission on Appointments. In
respondent’s answer he claims that when he assumed office the petitioner was
nowhere to be found because he had gone to the town of Candon, Ilocos Sur to
reside. He also states that the petitioner has already asked the Secretary of
Justice to have his application for retirement approved.

The petitioner claims that shortly after the respondent had assumed office as
Justice of the Peace of Cervantes and Angaki, he, the petitioner wrote a letter
to His Excellency, the President of the Philippines protesting against his being
deprived of his old post, although, no copy of said letter could be found in the
office of the Assistant Executive Secretary of Malacañan. The petitioner further
claims that vixen he failed to receive any answer to his letter to the
President, he conferred with Honorable Elpidio Quirino, then Vice-President of
the Philippines and Senator Prospero Sanidad regarding his being restored to the
position for Justice of the Peace of Cervantes and Angaki. Failing to receive
immediate relief, he commenced these Quo Warranto proceedings in this Court for
tiie purpose of having him declared the legal and lawful Justice of the Peace
for towns already referred to and to have the respondent ousted therefrom. His
complaint was received by this Court on November 14, 1947.

The theory of respondent is that petitioner had lost his right, title or
valid claim to the position of Justice of the Peace of Cervantes and Angaki by
reason of abandonment, consisting in his acceptance of the position of Justice
of the Peace of Cervantes only, during the Japanese occupation, said position
being different and distinct from the circuit of Cervantes and Angaki held by
him before the war; his acceptance of the position of temporary Justice of the
Peace of Cervantes and Angaki under an appointment extended by a Special
Delegate of the Department of the Interior; his departure from his circuit of
Cervantes and Angaki, and his residence in Candon, Ilocos Sur; lastly, his
insistence on the approval of his retirement and, his inaction for several
months from June 30, 1947 to November 30, 1947, evidencing his intention to
abandon his office.

This Court has recently decided a case whose facts are very similar to the
present case, ‘fie refer to the case of Pablo Teves vs. Perpetuo A.
Sindiong ^[1], promulgated on October 21,
1948. In said case the facts ere related in the statement which we quote:

On December 19, 1914, Pablo Teves was appointed Justice of the Peace of
Luzurriaga, Negros Oriental, He qualified for and assumed said office on January
14, 1915. and had since discharged the duties of said office up to the outbreak
of the Pacific war in December 1941 Negros Oriental, or part thereof, was
subsequently occupied by the Japanese army. The plaintiff followed and stayed
with the guerrillas in the free area and continued to discharge his duties as
Justice of the Peace of that part of Luzurriaga not occupied by the invaders.
However, sometime in October 1943 the plaintiff was arrested by a Japanese
patrol and was later taken down to Dumaguete, capital of Negros Oriental, and
“there kept a virtual prisoner. Because of plaintiff’s absence from the free
area of Luzurriaga where a free government had been organized and maintained by
the guerrilla foroes, the Deputy Governor of said government appointed Atty.
Mauro Edrial as Justice of the Peace of said municipality of Luzurriaga. Edrial
qualified for the position and performed the duties thereof from July 8, 1944 to
January 4, 1945. In October 1944, Pablo Teves managed to escape from his
confinement in Dumaguete, went to the free area of Luzurriaga, and asked the
Deputy Governor under the gierrilla Government to restore to him his post of
Justice of the Peace of Luzurriaga. He was advised that before he could be
reinstated he should secure a clearance certificate from the guerrilla military
authorities to prove his loyalty to the Filipino cause Plaintiff secured the
necessary clearance, and, on January 4, 1945. he was appointed Justice of the
Peace of the municipalities of Luzurriaga and Bacong, 6th Administrative
District, by Deputy Governor Margarito Teves, which appointment was approved by
Alfredo Montelibano, Governor of the Islands of Negros and Siquijor. Plaintiff
Teves resumed, or rather qualified for said office and discharged the duties
thereof.

On May 1, 1945, Teves was again appointed acting Justice of the Peace of
Luzurriaga, Bacong and Dauin, by special agent Jose M, Aldeguer of the
Departiuent of the Interior, by virtue of the authority vested in that
Department by the President of the Commonwealth of the Philippines, said
appointment bearing the approval of the Commanding Officer of PCAU 24. On the
same day, the plaintiff qualified for and assumed said office. Then, on December
26, 1945, Teves was again appointed by President of the Philippines Sergio
Osmeña, as ad interim Justice of the Peace of Luzurriaga, Negros
Oriental. Teves again qualified for and assumed said office. However, when, his
appointment was submitted to the Commission on Appointments, it was not
confirmed. Despite this non-confirmation, plaintiff Teves continued in
office

In the meantime, and presumably because of this non-confiimation of Teves’
appointment, the President of the Philippines nominated the defendant Perpetuo
A. Sindlong Justice of the Peace of Luzurriaga and said nomination was confirmed
by the Commission on Appointments on September 3. 1946. Sindiong took 1ne
corresponding oath on September 14, 1946, and then advised the plaintiff of
his appointment and demanded of him the surrender of the office. Plaintiff
refused to comply with this demand, insisting that he was the legitimate Justice
of the Peace of Luzurriaga. On being apprised of the situation, the Judge of the
Court of First Instance of Negros Oriental issued a summary order dated Sept.
23, 1946, directing plaintiff Pablo Teves to make delivery within ten days of
the office of Justice of the Peace of Luzurriaga, together with the documents
and records pertaining thereto to the defendant Perpetuo A. Sindiong, under
penalty of contempt. To avoid unpleasant oonsequences, Teves surrendered the
office and its records to Sindiong on October 7, 1946, and a week later, or on
October 14, he commenced the present action in the Court below.

In that case we held that because of the abnormal conditions obtaining in
Negros Oriental by reason of the war the formation of new judicial circuits
including Luzurriaga — first, the grouping of Luzurriaga and Bacong, and later
the merger of the three towns of Luzurriaga, Bacong and Dauin, into a circuit, —
was a makeshift arrangement, a mere temporary expedient, far from being
permanent in nature, but merely designed to meet and solve the exigencies of ihe
administration of Justice in those areas in the best manner possible under said
abnormal conditions; that the law and doctrines governing abandonment of an
office may not and should not be strictly applied to cases occurring during the
war, specially in those areas occupied partly or entirely by the enemy; and that
considering the surrounding circumstances, we ruled that in accepting the post
of Justice of the Peace of Luzurriaga and Bacong and later of the office of
Justice of the Peace of Luzurriaga, Bacong and Dauin, Teves did not abandon his
post of Justice of the Peace of Luzurriaga. We also held in said case that the
acceptance by Teves of the ad interim appointment in December, 1945 of
his old post of Justice of the Peace of Luzurriaga was not a waiver of his right
and title to the old post; that he had the right to hold the same, not underithe
new ad interim appointment in December, 1945 but by virtue of his
original appointment in 1914, for the reason that one cannot be properly
appointed to the same post that he is already holding tinder a valid
appointment. In addition, we observed in that case that a subsequent appointment
to the post of Justice of the Peace extended to one who already had a right to
it because of a previous pre-war appointment under which he had qualified and
discharged his duties, may be regarded as a mere restitution or restoration of
the position which belonged to him; and that the new appointment can add nothing
to or diminish his right to the office conferred by his original
appointment.

Applying the doctrine laid down in that case of Teves vs.
Sindiong^[2], including the observations
made therein, we find and so hold that beoause of the abnomal conditions
obtaining in Ilocos Sur, particularly the towns of Cervantes and Angaki during
the war, there is reason to believe that the changing of the original circuit
occupied by petitioner Abaya by eliminating therefrom the town of Angaki, was a
mere temporary expedient to meet the exigencies of the administration of justice
in that area, under abnormal conditions, and that his acceptance of the new post
did not involve or entail abandonment of his old position. In proof of the
temporary nature of the change in Hie oircuit is the fact that vhen conditions
returned to normal, the old circuit comprising the towns of Cervantes and Angaki
was restored. And it is significant to note that when said old circuit was
restored, the petitioner was likewise restored to his old post by appointments
extended by two administrations, that of President Osmeña and the administration
of President Roxas.

We may add, as we have stated in the case of Teves vs. Sindiong that
in those days Abaya could not very well dictate his terms of acceptance of the
positions extended to him. He had to take them as they came, accepting the
position of Justice of the Peace of Cervantes alone during the occupation and
accepting a new appointment to Ills old circuit during the days following tte
liberation. He had no freedom of choice. The important thing is that he never
intended to abandon his old post and all along during the Japanese occupation
and even after liberation he continued in the Judicial service and exercised and
discharged the functions of the office of Justice of the Peace in the same place
and area which he did before the war. And, we may also say that his appointment
by President Osmeña and later by President Roxas, to his old post of Justice of
the Peace of Cervantes and Angaki tho not confirmed by the Commission on
Appointments, was unnecessary; that it did not and could not add anything to or
diminish his right to the office conferred by his original appointment, but that
said appointments may be regarded as a mere restitution of the office which
belonged to him but which he failed to hold because of, and during the war.

We find no merit in the other grounds advanced by the respondent. When the
respondent assumed the office of Justice of the Peace of Cervantes and Angaki,
there was no reason nor obligation on the part of the petitioner to continue
residing in Cervantes. He was prompted to reside in Candon perhaps because it
was his native town. Furthermore, his asking the government to act upon his
application for retirement may not be regarded as evidence of intent to abandon
his office. We understand that such applications for retirement had, years ago,
been filed by many government officials in order to secure the benefits of the
retirement law. And his urging the government to act upon such application was
perhaps a mere precaution for purposes of security in case that he lost his
office against his will. His very letter to the Secretary of Justice in this
regard (Exh. 7) states that his successor to the post of Justice of the Peace of
Cervantes and Angaki was appointed without his knowledge. And to further
demonstrate that he did not intend to lose said office without effort or fight,
he filed these proceedings not long after he was deprived thereof.

In view of the foregoing, we hold and decide that the petitioner Jose Abaya
never abandoned his office of Justice of the Peace of Cervantes and Angaki,
province of Ilocos Sur, and that he is entitled to the same by virtue of his
pre-war appointment; and respondent Alejandrino A. Alvear is hereby ordered to
deliver said office and all the records appertaining thereto to said petitioner.
No pronouncement as to costs. So ordered.

Moran, C.J., Paras, Feria,
Pablo, Perfecto, Bengzon, Briones, and Tuazon, JJ., concur.