CANUTO A. LIM, ET AL, PETITIONERS AND APPELLANTS, VS. TOMAS V. SABARRE, AS JUSTICE OF THE PEACE OF CALBIGA, SAMAR, ET AL., RESPONDENTS AND APPELLEES.

Direct appeal from an order of dismissal of the
Court of First Instance of Samar.

Appellants Canuto A.
Lim and Lorenza.  Alcoy
own two (2) fishing boats, of which their co-appellants^[1]
are crew members.  Sometime in August,
1960, appellants were accused, in Criminal Cases Nos. 1778 and 1785 of the
Justice of the Peace Court of Calbiga, Samar, of a violation of Municipal Ordinance
No. 20 series of 1956, of said municipality, prohibiting trawl fish­ing.  After entering a plea of not guilty, upon
arraignment, appellants filed, on September
3, 1960, a motion to quash the complaints against them, on the
ground that said ordinance had been disapproved by the Secretary of Agriculture
and Natural Resources – hereinafter referred to as the Secretary – on March 12, 1957.  As Justice of the Peace of Calbiga, herein appellee, Tomas
V. Sabarre, denied said motion and then set the
aforementioned cases for trial on March 25 and April 3, 1961, which trial was later postponed.

Subsequently, or on May
15, 1961, appellants commenced the present action, in the Court of First
Instance of Samar – here­inafter referred to as the
CFI – against respondent Sabarre, as well as against Ildefonso S. Abancio and Jose Latorre, as Municipal Mayor and Municipal Treasurer,
respectively, of Calbiga, for a writ of prohibition
and mandamus, with preliminary injunct­ion, to restrain the enforcement of said
municipal ordinance, particularly the hearing of said Criminal Cases Nos. 1778
and 1785 to annul the ordinance aforementioned and compel respond­ent Sabarre to quash the complaints against appellants herein;
to secure the refund of P800 allegedly collected from them by the municipal
treasurer, upon the authority of said ordinance; and to recover damages.

In their answer to the complaint herein, Sabarre,
Abancio and Latorre –
hereinafter referred to collectively as respondents – admitted some allegations of said pleading, denied other allegations
thereof, and alleged by way of affirmative defenses, inter alia:  (1)
that the complaint states no cause of action, and (2) that no notice in writing
of the alleged disapproval of the ordinance in question by the Secretary had
been given to the Municipal council of Calbiga.

When the case at bar was heard in the CFI, on July 23, 1963,
appellants’ counsel seems to have advanced the theory – as he did in a motion
for reconsideration filed on August 15, 1963 – that respondent Sabarre had no jurisdiction to try said criminal cases, because the validity of a
municipal ordinance was involved therein. 
In an order dated July 27, 1963, the CFI overruled this pretense and
held that respondent Sabarre “should be afforded
the opportu­nity to hear the criminal cases now before him and decide the
same,” even if the “legality or constitutionality” of said
ordinance, were in issue therein; that appellants can appeal from the decision
of respondent Sabarre; that, accordingly, they have a
“plain, speedy and adequate remedy in the ordinary course of law”;
and that the complaint in Case No. 4891 was “without merit”, for
which reason it was dismissed, with costs against the appellants.  A reconsi­deration of said order having been
denied, appellants interposed the present appeal.

They maintain that the lower court erred:  (1) in dismissing the complaint summarily,
instead of hearing the case on the merits and giving the parties an opportunity
to prove their con­tentions; (2) in not declaring that the Justice of the Peace
and the Mayor had acted without or in excess of their jurisdiction or with
grave abuse of discretion; and (3) in declaring that the right to appeal from a
possible judgment of conviction by the Justice of the Peace is a plain, speedy
and adequate remedy.

We find no merit in this
appeal.  It is well settled that a writ
of prohibition will not issue, unless it appears that the party against whom it
is sought has acted without or in excess of his jurisdiction or with grave
abuse of discretion1 that a writ of mandamus is not proper except
to exact compliance with a clear legal duty and cannot be availed of to control
the exercise of judgment, much less discretion2 that, a motion to quash is addressed mainly
to the court’s discretion3 and that prohibition is not the proper
remedy to review an order denying such mo­tion.4 As a matter of fact, the general practice –
which is sound – is either to deny the motion, or to defer its resolution until
the case is decided on the merits, when the grounds relied upon are not
indubitable.

In the case at bar, appellants’ motion to quash the criminal
complaints against them was based upon a premise that is not indubitable,
namely, that the municipal ordinance they had allegedly violated was not in
force, because the Secretary had disapproved it.  Indeed, the Secretary’s authority thereon is
found in Section 4 of Act No. 4003, as amended, pursuant to which –

“All ordinances, rules or regulations pertain­ing to fishing
or fisheries promulgated or enacted by provincial boards, municipal boards or
councils or municipal district councils shall be submitted to the Secretary of Agriculture and Natural
Resources for approval and shall have full force and effect unless notice in
writing of its disapproval is communicated by the Secretary to the board or
council concerned within 30 days after submission of the ordinance, rule or
regulation.”

Appellants have not even intimated the time when the ordi­nance
in question was submitted to the Secretary. 
Besides, the ordinance was
allegedly disapproved by him on March 12, 1957, or over five (5) months after its approval
by the Municipal Mayor, on September 24, 1956. 
Again, there is no allegation that said disapproval had been
communicated to the municipal council of Calbiga.  What is more, respondents explicitly averred,
in their answer to the complaint herein, that notice of the alleged dis­approval
of the ordinance had “never” been received by, either the Municipal
Mayor, or the municipal council of Calbiga.  In fact, appellants’ contention is merely
predicated upon hearsay, namely, an alleged letter of the Director of
Fisheries, dated August 9, 1960, addressed to appellant Lim.

Under these circumstances, it is obvious that respondent Sabarre had not acted without jurisdiction or in excess of
jurisdiction or with grave abuse of discretion in denying appellants’ motion to
quash said criminal complaints.  Furthermore,
he had no other choice in the matter – considering that appellants had not
satisfactorily established their pretense – unless he deferred the resolution
of said motion until the conclusion of the trial of the criminal cases and the
same were submitted for decision on the merits. 
At any rate, said denial of the motion to quash does not bar appellants
from trying to prove, at their trial, in said cases, that the ordinance has not
acquired any force or effect whatsoever, on account of its alleged disapproval
by the Secretary.

Appellants now seem to entertain the notion that the CFI should
have proceeded to receive evidence on the question whether or not the ordinance
had been disapproved in accordance with law. 
Such, however, is not the subject-matter of the present case, which is
one merely for prohibition and mandamus. 
The only issue therein is whether respondent Sabarre
had committed a grave abuse of discretion in denying the motion to quash.  The determination of this issue must,
necessarily, depend upon the pleadings and the facts before said respondent,
when he denied the motion. 
Consequently, the CFI did not err in dismissing the complaint herein.

WHEREFORE, the order appealed from is hereby affirmed,
with costs against petitioners-appellants.

IT IS SO ORDERED.                                  

Reyes, JBL, Dizon, Makalintal, Zaldivar, Sanchez, Ruiz Castro,
Angeles and Fernando, JJ.,  concur.

^[1]
Dionisio Cuazon, Francisco
Rosario, Manuel Conde, Zoilo
Lucero, Rodolfo Ibañez, Miguel Dumas, Aniano Albos, Nonilon
Lamban, Alejo Salentes, Liberato Albesa, Raymundo Albesa, Pablito Gilbang, Federico Sayson, Antonio
Lardes, Amado Conde, Juanita Aras, and Pablito Orlanda.

1 Rule 65,
Section 2, Rules of Court.

2 Dy Cueco v. Secretary of Justice, L-18069, May 26, 1962; Padilla v. Zaldivar, L-22789, October
30, 1964; Hanlo v. Dimaporo, L-21905, March
31, 1966.

3 Assistant Fiscal of Bataan v. Dollete,
L-12196, May 28, 1958.

4 Solidum
v. Hernandez, L-16570, February
28, 1963.