EMILIO MENDENILLA, PETITIONER AND APPELLANT, VS. JOSE MANUEL ONANDIA, RESPONDENT AND APPELLEE.

From the decision of the Court of First Instance of Albay (in Civil Case No. 2224 for quo warranto)
declaring respondent Jose Manuel Onandis as the lawful and right-full
holder of the office of Chief of Police of Legaspi City, and entitled
to the costs of the suit, petitioner Emilio Mendenilla, interposed the
present appeal.

The facts of the case, which are undisputed, are stated in the decision of the trial court, to wit:

“Petitioner Emilio Mendenilla was appointed Chief of
Police of the then Municipality of Legaspi, Albay, on June 21, 1954 by
the Municipal Mayor. He was and has always been a second grade civil
service eligible, and a veteran of World War II. The appointment was
extended to him, pursuant to the law then existing and applicable, more
particularly under the Municipal Law embodied in the Revised
Administrative Code, by virtue of which, the appointment of the Chief
of Police of a municipality, of which Legaspi was then one at that
time, is vested in the Municipal Mayor. It was approved by the Office
of the President and by the Civil Service Commission.

“On
June 12, 1959, Republic Act No. 2234, otherwise known as the charter of
the City of Legaspi, took effect, which law, converted the former
Municipality of Legaspi (s) into the City of Legaspi (z). Singling out
one of the provisions of the aforesaid statute, Section 22, Article V
thereof, provides: ‘The President of the Philippines, with the consent
of the Commission on Appointments, shall appoint * * * the chief of
police * * * and other heads of such city departments as may be
created.’ Thus, under the charter of the City of Legaspi, the
appointment of the Chief of Police is now vested in the President of
the Philippines.

“The petitioner, even beyond the effectivity
of Republic Act No. 2234 on June 12, 1959, held the position of the
Chief of Police. On February 5, 1960, the Acting City Treasurer, in a
communication to the petitioner (Exhibit ‘F’), informed the latter that
the payment of his salary as Chief of Police, was suspended until his
duly approved appointment was submitted to his office. What must have
been meant by the ‘duly approved appointment’ was the appointment of
the petitioner by the President of the Philippines, pursuant to the
charter. On February 6, 1960, the petitioner, ostensibly acting upon
the advice of the Acting City Treasurer addressed a letter to the
President (Exhibit ‘G’), wherein he applied and solicited the position
of Chief of Police of the City of Legaspi. On February 25, 1960, the
petitioner again addressed a letter to the President (Exhibit ‘6’),
wherein he requested that he be extended the appointment as Acting
Chief of Police, to take effect retroactive to June 12, 1959, to enable
him to collect his salary. On February 26, 1960, the President, through
the Executive Secretary, designated the petitioner as Acting Chief of
Police of the City of Legaspi, which designation, was retroactive to
June 12, 1959, the date of the effectivity of Republic Act No. 2234. He
then took his oath of office as Acting Chief of Police, on March 11,
1960.

“On March 15, 1960, respondent Jose Manuel Ocandia was
nominated Chief of Police of the City of Legaspi, by the President,
Congress then being in session. On March 18, I960, the designation of
the petitioner as Acting Chief of Police was terminated by the
President and, forthwith, the Executive Secretary sent the petitioner a
notice of termination, by means of a telegram and letter (Exhibits ‘2’
and ‘3’, respectively). On the same date, March 18, 1960, the
respondent was designated by the President as Acting Chief of Police of
the City of Legaspi, vice the petitioner (Exhibit ‘I’). He took his
oath of office, and assumed the duties of the position on the same date.

“On March 24, 1960, the petitioner filed the present petition for quo warranto,
when he was still supposed to be on official leave of absence. Upon
representation of the petitioner, it is stated in the stipulation of
facts that he received the letter and telegram, requesting him to turn
over the office to the respondent, on March 25, 1960. This could not be
true, for the reason that he could not have filed his petition for quo warranto
on March 24, 1960, one day before his alleged receipt. As a matter of
fact, the memorandum for the petitioner corrects this, and admits that
the petitioner received such advice on March 24, 1960.

“On
March 25, 1960, the petitioner turned over the office of Chief of
Police to the respondent. He collected his salary as Acting Chief of
Police, from June 12, 1959 to March 30, 1960. On May 11, 1960, the
nomination of respondent Jose Manuel Onandia, as Chief of Police of the
City of Legaspi, was confirmed by the Commission on Appointments. By
virtue of his nomination and confirmation as such, the respondent took
his oath of office as regular Chief of Police, on May 25, 1960, and
immediately thereafter, assumed the duties of the position.”

On the basis of the above factual findings, the trial court, on October 3, 1960, rendered the decision above adverted to.

As correctly stated by the trial court in its decision, the main
issue in this case is: who, between the petitioner and the respondent,
is legally entitled to the office of the Chief of Police of the City of
Legaspi. The resolution of said issue necessarily depends on the
determination of the question of what happened to the municipal offices
existing at the time of the dissolution of the Municipality of Legaspi
and upon the creation of the City of Legaspi. Stated differently, what
legal effect had the conversion of Legaspi into a city on the municipal
offices then existing?

Well-settled is the rule that “the power to create or establish
municipal corporations, to enlarge or diminish their area, to
reorganize their governments, or to dissolve or abolish them
altogether, is a political function, which rests solely in the
legislative branch of the government and, in the absence of
constitutional restrictions, the power is practically unlimited.” (37
Am. Jur. 626; McQuillin, Municipal Corporations [3rd Ed.] 509-512). In
this country, the power to create or abolish municipal corporations
resides in Congress which, under the Constitution, is given general
legislative powers (Tiaco vs. Forbes, 228 U. S. 549; Asuncion vs. Yriarte, 28 Phil., 67). Municipal corporations are mere creatures of Congress (Unson vs.
Lacson, et al., 100 Phil., 695). Municipal corporations are here
created under a general law, i.e., pursuant to the Municipal Law
embodied in the Revised Administrative Code, in the case of
municipalities proper, and, under special charters, in the case of
chartered cities. Pursuant to the aforementioned legislative power,
Congress enacted Republic Act No. 2234, otherwise known as the charter
of the City of Legaspi, which became effective on June 12, 1959.

With the creation of the City of Legaspi on said date, the legal
personality of the Municipality of Legaspi was extinguished, and the
city, which superseded the municipality, came into being as a new legal
entity or municipal corporation. The consequent effect of said
dissolution, was the abolition of all municipal offices then existing
under the superseded municipality, including that held by petitioner,
save those excepted in the charter itself. Petitioner’s appointment of
June 21,1954 by the then municipal mayor of the municipality of
Legaspi, therefore, ceased to have legal force and effect. The weight
of authorities support this view:

“The absolute and unconditioned repeal of a
municipal corporation without any saving- clause, as to the right of
officers under the former charter, abolishes all offices thereunder.
The adoption of a general law or charter abolishes all offices not
expected * * *.” (62 C. J. S. Sec. 465.)

“Statutory offices
may be altered or abolished by the legislature. * * *The same general
principle applies to municipal offices. They may be abolished, extended
or vacated by the municipal authority by which the corporation itself
was created * * *.” (Mechem, Public Officers, Sec, 465.)

“In
the absence of a provision to the contrary, the superseding of the old
charter by the new, has the effect of abolishing the offices under the
old charter. The general rule is, that the repeal of a charter destroys
all offices under it, and puts an end to the functions of the
incumbents.” (People vs. Brown, 83 111. 95; People vs. Chambers, 78 Ky. 140; Waterlist vs. Colonio, 27 App. Div. 394, 50 NYS 487; Wasloin vs. Hillsboro, 48 N. D. 1113, 138 N. W. 738; Adler vs. Jonkins, 53 Okla. 117, 124 Pac. 29, cited in McQuillin, Municipal Corporations [3rd Ed.] 569.)

The only offices expressly excepted from said abolitions were those
mentioned in Section 96, Article XVII of the Charter, which reads:

“SEC. 96. Change of Government.—The
incumbent Mayor, Vice-Mayor and members of the Municipal Board shall
continue in office as the Mayor, Vice-Mayor and members of the
Municipal Board of the City, respectively, until the expiration of
their present terms of office.”

Applying the principle of “expressio unius, est exlusio al-terius”
in statutory construction, all municipal offices including that held by
petitioner, in the then municipality of Legaspi not included in the
above-excepted offices were deemed abolished.

Petitioner contends that the office of chief of police of the
municipality and that of the city are one and the same. The argument is
not legally tenable. If it were so, Congress would not have recreated
and provided for the office of the chief of police who shall have
charge of the police department, under Section 37 Republic Act No. 2234.

Petitioner cites the case of Brillo vs. Enage (94 Phil.,
732; 50 Off. Gaz., 3100) in support of his theory that there was no
abolition of the municipal offices upon the dissolution of the
municipality of Legaspi. But the cited case ia inapplicable. As the
trial court correctly observed:

“In that case, the petitioner was a Justice of the
Peace of the Municipality of Taeloban, having been appointed by the
Governor General (now equivalent to the President of the Philippines)
on November 7, 1921. On June 20, 1952, Republic Act No. 760, otherwise
known as the charter of the City of Tacloban, took effect. It is
conceded that Republic Act No. 760, creating the City of Tacloban, is
substantially the same as Republic Act No. 2234, creating the City of
Legaspi. The Supreme Court in the aforecited case said in effect that
the creation of the City of Tacloban did not have the consequence of
abolishing the office of the Justice of the Peace of the defunct
Municipality of Tacloban.

“There is no parallel between the office of the Justice of the Peace, which was the crux of the controversy in the Brillo case, supra,
and the position at bar. In the first place, according to the Supreme
Court, in the case herein invoked, the Justice of the Peace is not a
municipal official, he being paid with national funds and is appointed
and acts under the supervision of the national government. Besides,
there is no necessity of including in the enumeration of those
officials who will continue to exercise their office, for the law
provides that the exercise of said office shall be until said judge
reaches the age of 70 or is incapacitated and he is not affected by
changes in local government.’ Whereas, in contrast to the Justice of
the Peace, the Chief of Police is a municipal official; that he
receives his salary from the municipal coffers; and that he acts under
the supervision of the municipal government. In the second place, the
Justice of the peace of Tacloban was appointed on June 7, 1921 by the
then Governor General (now President of the Philippines), the Chief
Executive of the Philippines at that time. Under the charter of the
City of Tacloban, and also under that of the City of Legaspi, the
Municipal Judge is appointed by the President of the Philippines with
the consent of the Commission on Appointments. There was, therefore, no
change in the appointing power of the Municipal Judge of the City of
Tacloban. In the instant case, the petitioner was appointed Chief of
Police of the then Municipality of Legaspi, Albay, on June 21, 1954, by
the Municipal Mayor. Under the charter of the City of Legaspi, the
appointment of the Chief’ of Police is now vested in the President of
the Philippines, with the consent of the Commission on Appointments.
Here Congress changed the appointing power. The power of Congress to
change the appointing power of municipal officials, as in this case
from the Municipal Mayor to the President, is absolute for the
‘legislature has full power and control over municipal officers and the
method of their selection or appointment’. (37 Am. Jur. 624). It may be
said with telling effect that the change of the appointing power in the
instant case had the consequent result of abolishing the position of
the Chief of’ Police of the dissolved Municipality of Legaspi. In the
third place, the Supreme Court in the Brillo case, supra, impliedly
announced the doctrine that there is necessity of including in the
enumeration of municipal officials who will continue to exercise their
office under a new charter, with the exception of the Justice of the
Peace, who is a national official. This further supports the considered
view that, because the office of the Chief of Police of the extinct
municipality was not among those included in Section 96 of Article XVII
of the city charter, said office was perfunctorily abolished.

“With
further reference to the abolition of said office, Section 100 of
Article XVII of Republic Act No. 2234 provides that ‘All laws or part
of laws inconsistent with this Act are hereby repealed.’ Inasmuch as
the Municipal Law embodied in the Revised Administrative Code, under
which the petitioner was appointed Chief of Police of the erstwhile
Municipality of Legaspi, is inconsistent with the charier of the City
of Legaspi, the former was deemed repealed or superseded by the latter,
in so far as the City of Legaspi was concerned. Such repeal or
superseding necessarily carried with it the abolition of the office of
the Chief of Police, which the petitioner was holding on June 12, 1959.
By such abolition, the right of the petitioner thereto was inevitably
terminated.”

Petitioner asserts that he cannot be deprived of his office, because
of the alleged fixed tenure of office he enjoys as guaranteed by the
Constitution and the Civil Service Law. The claim loses sight of the
fundamental rule in political law that no person has a vested right to
an office, except those holding constitutional offices. As a rule, all
offices created by statutes are more or less temporary, transitory, or
precarious that they are subject to the power of the legislature to
abolish them. (See Busacay vs. Buenaventura, 93 Phil. 786.)
The Civil Service Law can not stand in the way of the exercise by the
Legislature of its power to alter, abolish, or create a municipal
corporation or office. What is not countenanced is the abolition of an
office in bad faith, to do away with a particular incumbent and
replacing him with a political favorite. In the charter of the City of
Legaspi, no office or officer was singled out. It was of general
application to all appointive, officials, of which petitioner was one.

In Manalang vs. Quitoriano, et al., 94 Phil, 903; 50 Off. Gaz., [6] 2515; we stated:

“To remove an officer is to oust him from office
before the expiration of his term. A removal implies that the office
exists after that ouster. So that, when an office has been abolished,
the officer thereof could not have been removed therefrom. Where the
bureau of which the petitioner is the director has been abolished, by
implication the office of the director cannot exist without said
bureau. By the abolition of the latter and of said office, the right
thereto of its incumbent was necessarily extinguished thereby. The
abolition of the office of the petitioner is not against the
prohibition of the Constitution against removal of a civil service
officer or employee except for cause, inasmuch as the petitioner has
neither been removed nor suspended from office.”

Another case in point is that of Dominguez, et al. vs.
Pascual (101 Phil., 31) wherein the Provincial Board of Rizal abolished
the positions of the petitioners who were all civil service eligibles.
In resolving the question as to the legality of the abolition, we
pointed out that:

“Removal implies that the position exists while the
officer is separated therefrom. When the position is validly abolished,
there is no removal of the incumbent.” (See also the case of Facundo vs. Judge Pabalan, 114 Phil., 307; 61 Off. Gaz., (38) 5904, citing the cases of Rodrigues vs. Montinola, 94 Phil., and Castillo vs. Pajo, 103 Phil., 515; 54 Off. Gaz., 6738).

Petitioner avers that his employment status as regular Chief of
Police may not be abridged except for the causes and in the manner
specified in Republic Act No. 557. This is predicated on the theory
that Republic Act No. 2234 did not abolish the position of Chief of
Police of the superseded municipality, because such abolition, if true,
would mean removal of petitioner from his office, which removal would
be contrary to Republic Act No. 557. We find no merit in the
contention. As the trial court pointed out:

“There can be no removal of an incumbent from his
position if his position is abolished by a statute, for removal implies
that the office exists after the ouster of the incumbent. Here, there
was no longer such office. Necessarily, the petitioner was not removed
when his office was abolished. This point was already squarely passed
upon in the case of Manalang vs. Quitoriano, supra.

“Moreover, in the case of Dominguez, et al. vs.
Pascual, et a!., 101 Phil., 31 the Provincial Board of Rizal abolished
the positions of the petitioners, who were civil service eligibles.
Subsequently, the positions were restored. The petitioners instituted
an action for mandamus to compel the members of the Provincial Board to
appropriate the amount necessary to cover their salaries for the fiscal
year 1952-1953. The issue in this case was whether the abolition of
said positions was valid. In resolving this question, the Supreme Court
enunciated the following doctrine:

‘Removal implies that the
position exists while the officer is separated therefrom. When a
position is validly abolished, there is no removal of the incumbent.
Considering that the positions abolished were the very ones that the
Provincial Board created, the removal of such posts from the annual
provincial budget is within the legal competence of the Board. The
power of creation implies the consequent power of suppression.”

“And
so, when the office of the Chief of Police of the dissolved
municipality was abolished by Republic Act No. 2234, the petitioner was
not removed within legal contemplation from his position. Hence,
Republic Act No. 557, which provides for the removal of suspension of
members of the Provincial Guards, City Police and Municipal Police, was
not transgressed by Republic Act No. 2234. Even assuming, arguendo,
that it was so violated, yet it was within the legal competence of
Congress to enact Republic Act No. 2234, creating the City of Legaspi
which had the consequent effect of abolishing the office of the Chief
of Police, among others.”

Petitioner assails the validity of respondent’s appointment as Chief
of Police of the City of Legaspi and, impliedly, questions his
designation as Acting Chief of Police. As already stated, the
appointment of the Chief of Police of the City of Legaspi is, under its
charter, lodged with the President. Petitioner, it will be noted,
solicited the position of regular Chief of Police of the City of
Legaspi (Exh. G). When he could not get it, he addressed another letter
(Exh. 6) to the President, requesting that he be extended the
appointment of Acting Chief of Police of the City, to take effect
retroactively to June 12, 1959 (date of effectivity of Rep. Act No.
2234), to enable him to collect his salary. Acting on his request, the
President, on February 26, 1960, designated him as Acting Chief of
Police, retroactive to June 12, 1959. Petitioner then took his oath of
office as Acting Chief of Police on March 11, 1960. He acquired
benefits under his said temporary appointment because he was able to
collect his salary from: June 12, 1959 to March 30, 1960. By his very
acts and conduct, petitioner is now estopped to question the
President’s authority to appoint respondent as Chief of Police of the
City of Legaspi.

“When a person has acted as a public officer, he is
estopped to deny that he occupied such office. Thus, one who has
accepted the appointment of an office having at least a potential
existence, and he has received the emoluments of it, has been held to
be estopped from endeavoring1 to show his own advantage that the office
has never been lawfully created because it was not done in the proper
mode, as by ordinance. This is particularly true where the incumbent
has received public money by virtue of being the incumbent of a public
office. (22 Am. Jur, 907.)

“Where the information is filed on
the relation of a private individual to oust the incumbent and install
the relator, the Court will take into consideration the conduct of the
latter, and when he has himself, concurred in the respondent’s holding
or where he has acquiesced or where he has delayed for an unreasonable
length of time in prosecuting his claims, the relief for quo warranto will hot be granted.” (Mechem, Public Officers, Sec. 485.)

Petitioner may not complain that his designation as Acting Chief of
Police of the City of Legaspi was terminated by the President, because
said designation was terminable at will. A designation in acting
capacity is at best temporary. In the case of Austria vs. Amante (79 Phil., 780), we held:

“An acting officer is one who acts in a given office
until his successor has been duly appointed or elected or qualified. It
is more or less temporary in nature.”

A corollary rule is that a designation to act in a position in an
acting capacity may be terminated at the pleasure of the appointing
authority (Mendez vs. Ganzon, 101 Phil. 48). In the Mendez
case, appellant was, pursuant to the charter of the City of Iloilo,
appointed by Mayor Ganzon as acting assistant chief of police. Two
years later, he was removed from office summarily. The trial court
dismissed appellant’s petition to enjoin the City Mayor from removing
him. He appealed to us. The question posed in the appeal was whether
appellant’s removal from said position was valid. Resolving the issue
in the affirmative, we stated:

“* * this Court has already had occasion to consider
and rule on the effect of appointments as ‘acting’ officers, and held
that their essence lies in their temporary character, and terminability
at pleasure by the appointive power. Thus, in Austria vs. Amante, 79 Phil., 780, this Court stated:

‘Lastly,
the appointment of-petitioner by the President of the Philippines was
merely as Acting Mayor. It is elementary in the law of public officers
and in administrative practice that such appointment is merely
temporary, good until another permanent appointment is issued, either
in favor of the incumbent acting mayor or in favor of another. In the
last contingency, as in the case where the permanent appointment fell
to the lot of respondent, Jose L. Amante, the acting mayor must
surrender the office to the lucky appointee.’

“Reiterating” this doctrine, we held in Castro vs. Solidum, 97 Phil., 273, that:

“There is no dispute that
petitioner has been merely designated by the President as Acting
Provincial Governor of Romblon on September 11, 1953. Such being the
case, his appointment is merely temporary or good until another one is
appointed in his place. This happened when the President appointed
respondent Solidum on January 6, 1954 to take his place.’

“*
* * in the case of petitioner Mendez, the acting (i.e., temporary)
character of his appointment is beyond controversy; it was expressly so
made, and he accepted it on that understanding. He cannot, therefore,
evade the legal consequences thereof.”^[1]

In line with these rulings, it may be stated, therefore, that when
the temporary designation of petitioner as Acting Chief of Police of
the City of Legaspi was terminated by the President, and respondent was
designated in his stead as Acting Chief of Police thereof on March 18,
1960, said termination and designation was within the lawful authority
of the appointing power. It appears that petitioner’s designation in an
acting capacity was at his instance, and he accepted such designation
on that understanding. He cannot now, therefore, complain and evade the
legal consequences of his own act. And, petitioner cannot also seek
refuge in the protective mantle of Republic Act 557, because of his
designation in an acting capacity. For said law applies only to
permanent appointments of members of the police force. Hence, a
temporary appointee may be validly dismissed without regard to Republic
Act No. 557.

Neither do we perceive any legal flow in respondent’s nomination as Chief of Police of the City of Legaspi on March 15, 1960,^[2]
which was later confirmed by the Commission on Appointments on May 11,
1960. (He took his oath of office as permanent Chief of Police on May
25, 1960 and assumed the duties of the position immediately
thereafter.) Said nomination and confirmation were pursuant to Section
22, Article V of Republic Act No. 2234, which, as already pointed out,
was well within the legal competence of Congress to enact. We have
stated earlier that the office of Chief of Police of the City of
Legaspi is, in legal contemplation, a new and entirely different office
from that of Chief of Police of the abolished Municipality of Legaspi.
This is the reason why petitioner’s temporary appointment as Acting
Chief of Police of the City on February 26, 1960 had to be extended
retroactive to the date of effectivity of the city charter on June 12,
1959. In fine, petitioner had to be appointed anew to the position of
Chief of Police of the city, upon abolition of the office of Chief of
Police of the municipality, And, when the office of Chief of Police of
said city became vacant on March 18, 1960 by virtue of the termination
of the temporary appointment of petitioner, the President designated
respondent to occupy the position. Petitioner’s contention, therefore,
that the office of the Chief of Police of the city was not vacant,
lacks merit.

Petitioner lastly argues that respondent’s appointment in his stead
was in violation of Republic Act No. 1363r which gives preference to
veterans in appointments to the public service. In view of our
conclusion that petitioner is not lawfully entitled to the position of
Chief of Police, whatever flaw there might exist in the appointment of
his successor can not be raised by him. Moreover, it will be observed
that the President is, under Section 22 of Republic Act No. 2234,
specifically empowered to appoint the chief of police and other heads
of the city government of the City of Legaspi, and unlike the City
Mayor, the law does not require him to consider civil service and
veteran qualifications of his appointees.

Wherefore, finding no reversible error in the decision appealed
from, the same is hereby affirmed in all respects, with costs against
the petitioner-appellant. So ordered.

Bengzon, C. J., Bautista Angelo, Labrador, Paredes, Dizon, Regala and Makalintal, JJ., concur.

^[2]
Pending confirmation of the nomination, the President designated
respondent Onandiasas as acting chief of police in place of petitioner
whose appointment as acting chief of police was terminated.therefore,
that the office of Chief of Police of the city was not vacant, lacks
merit.