ESTEBAN T. BUMANGLAG, PETITIONER AND APPELLANT VS. JOSE FERNANDEZ, AND HON. PEDRO TUASON, AS SECRETARY OF JUSTICE, RESPONDENTS AND APPELLEES.

This is an appeal from the judgment of the Court of First Instance of Manila,
dismissing the petition for Quo Warranto, instituted by Esteban T. Bumanglag
against Jose Fernandez, incumbent Justice of the Peace of Talipao and Maimbung,
Sulu, and Hon. Pectro Tuason, as Secretary of Justice.

Petitioner-appellant Esteban T. Bumanglag was a duly appointed and confirmed
Justice of the Peace of Talipao and Maimbung, Sulu. While occupying the said
position, administrative charges were preferred against him, to wit :

“(1). That contrary to standing: regulations, he did not reside within his
jurisdiction but in the municipality of Jolo;

(2) That in criminal case No. 90 of the Court of First Instance of Sulu
against Amirul and Amilasan, for rape, which was tried on March 12, 13, and 19,
1947, the respondent appeared as counsel de parte for the accused; and that
despite his absence from office as justice of the peace on these dates, he
collected his salary corresponding thereto by making it appear in his time
record that he actually rendered service; and

(3) That in one instance, the respondent demanded and collected the sum of
P60.00 from a person who had a case brought to his court.”

After, an investigation, the petitioner was found guilty of the and and 3rd
charges and the President of the Philippines, by Administrative Order No. 53,
dated April 23, 1948; removed him from office.

On March 17, 1950, the President nominated CeJestino V. Ramos as Justice of
the Peace of Maimbung and Talipao, and this nomination was confirmed by the
Commission on Appointments during its session held on April 21, 1950 (Exhibit
7). Ramos stayed in this Office until August 9, 1954, when respondent Jose
Fernandez was appointed in his place (Exhibit 6).

On June 18, 1948 and February 24, 1950, petitioner made representations to
the Secretary of Justice and to the President for the reinvestigation of his
case, not with the aim of reversing the decision contained in Administrative
Order No. 53, but for the purpose, as alleged by petitioner, of allowing him to
leave the service in a less embarrassing way of escaping criminal prosecution,
for as to him, his separation from the service was a sufficient punishment
(Exhibits G; 3, and 4). Said requests were repeatedly denied on July 13, 1948
and on June 20, 1950, on the ground that a careful consideration of the grounds
advanced in support of the petition, did not warrant the reinvestigation of the
case (Exhibits D and E).

On September 19, 1950, upon representations made by petitioner that “he was
not given every opportunity to put up his defense because of the hostile and
threatening attitude of the attorney of the complainant as well as that of the
investigator during the investigation of the case,” the Office of the President
finally authorized the reinvestigation of the case (Exhibits F, 1-a, 1-b).

On April 25, 1951, the investigator submitted his report to the Secretary of
Justice, with the following recommendation:

“It is believed that the evidence presented at this reopening can not
prevail over the evidence presented at the previous investigation. It is,
therefore, recommended that Administrative Order No. 53 of the President, dated
April 23, 1948, dismissing: respondent from his position as Justice of the Peace
be upheld.” (Exhibit 1. Italics ours).

On July 5, 1951, the Secretary of Justice after receipt of the aforesaid
report and obviously considering the fact that petitioner has already
sufficiently been punished by his separation from the service, recommended to
the President that “the order of dismissal (Administrative Order No. 53) be
reconsidered in such a way that the respondent be considered as having resigned
from office, effective as of the date of his separation from the service,
without prejudice to his reinstatement, not necessarily in his former position
as Justice of the Peace of Talipao and Maimbung, Sulu, which is at present not
vacant” (Exhibit G).

On December 28, 1953, the President issued Administrative Order No. 260,
modifying Administrative Order No. 53, “in the sense that Mr. Esteban T.
Bumanglag is considered as having resigned from Office as Justice of the Peace
of Talipao and Maimbung, Province of Sulu, effective on the date of his
separation from the service, without prejudice to reinstatement” (Exhibit
H).

On February 18, 1954, petitioner filed with the Office of the President a
request for reinstatement to his former position, claiming, among other things,
that Administrative Order No. 260 exonerated him of the charges and that the
present; incumbent was illegally occupying said office (Exhibit I). On February
23, 1954, petitioner filed another request with the Office of the President,
praying that Administrative Order No. 260 be amended by embodying in said
Administrative Order his complete exoneration and reinstatement to his former
position, with back salaries (Exhibit 5).,

On May 18, 1954, in reply to requests for reinstatement of petitioner, the
Undersecretary of Justice opined that “inasmuch as under Administrative Order
No. 260 of the President, dated December 28, 1953, Mr. Esteban Bumanglag was
considered as having resigned from his position as Justice of the Peace of
Talipao and Maimbung, Sulu, effective April 23, 1948, without prejudice to
reinstatement, lie could return to the service only if appointed anew”
(Exhibit K).

On November 29, 1954, petitioner filed this petition for Quo Warranto. After
due trial, the court a quo rendered its decision on July 9, 1955,
dismissing the said petition for quo warranto.

In his brief, petitioner alleges that the lower court erred: (1) in holding
that respondent Fernandez was appointed when there was a legal vacancy. (2) In
holding that the court cannot oust the respondent; and (3) In not declaring,
that petitioner is entitled to his salaries from December 1947 until he assumes
office. A pivotal issue as to whether or not the petition was filed within the
prescribed period, was also raised by respondents-appellees.

Section 16, Rule 68 of the Rules of Court, among others, provides the
following:

“Nothing contained in this rule shall be construed * * * to authorize an
action against an officer for his ouster from office unless the same be
commenced within one year after the cause of such ouster, or the right of the
plaintiff to hold office, arose; * * *”

The period of one year fixed in the above rule, is a condition precedent to
the existence of the cause of action for quo warranto and that the inaction of
the officer for one year could be validly considered as a waiver (Abeto
vs. Bodas, 82 Phil., 59; 46 Off. Gaz., 930; Bautista vs.
Fajardo, 38 Phil., 624; Lim vs. Yulo, 62 PhiL, 161; Tumulak
vs. Egay, 82 Phil., 828; 46 Off. Gaz., 3693). In the case of Torres
vs. Quintos, 88 Phil., 436, the quo warranto petition instituted only
on February 1, 1949, was dismissed on the ground that same was not commenced
within one year period. We declared in said case: “there is every ground to hold
the petitioner’s right to hold the disputed office, if at all, arose in May,
1945, when he was replaced by Colonel Jones and when he was arrested by the CIC
and thereafter prosecuted for treason in the People’s Court”,

In the present case, the petitioner-appellant should have availed of the
remedy provided by the Rule heretofore quoted, within one year from his ouster
on April 23, 1948, or at the latest, within- one year after he was replaced by
Celestino V. Ramos on April 21, 1950; in either event, the period of one year
had irremediably expired on April 23, 1949, or April 21, 1951, respectively. The
petition for quo warranto having been filed only on November 29, 1954, we are,
therefore, of the opinion that petitioner-appellant’s cause of action was
already barred.

It should be noted that petitioner-appellant’s subsequent representations
requesting reopening and/or re-investigation of his case, were simply prompted
by his desire to be allowed to leave the service in a less embarrassing way,
instead of a removal for cause. Administrative Order No. 260 which had
considered him as having resigned from office as justice of the peace, did not
have the effect of exonerating him from the charges or justifying the
construction that the same constituted a reversal of the former order No. 53; it
simply modified the penalty, by reducing it from removal to a mere
separation from the service, which had obviously a less dramatic impact; it
reaffirmed the justice of punishing him, for if he was really exonerated, there
was no reason whatsoever of imposing upon him any form of punishment, either
removal, dismissal, or compulsory resignation.

Conceding in gratia argumenti, that the cause of action has not
prescribed, we are nevertheless of the opinion that when Ramos, and later the
respondent Fernandez were appointed, there existed a legal vacancy. From the
time of his removal, the petitioner-appellant had not been reinstated or
reappointed to his former position, thereby leaving a vacancy which the
President had filled.

Petitioner-appellant makes capital of that portion of Administrative Order
No. 260 which “considered him as having resigned from office, without prejudice
to reinstatement”, arguing that it was a virtual exoneration, and he should be
automatically reinstated to his former position. This view is far fetched, to
say the least. The respondent Secretary of Justice, answering the
petitioner-appellant’s requests for reinstatement opined that “he fould return
to the service only if appointed anew” (Exhibit K). And this should be so,
because the position of justice of the peace to which petitioner-appellant can
be reinstated or appointed, is not now vacant.

With particular attention to respondent Fernandez, it should be stated that
the power to suspend and remove a justice of the peace has been expressly vested
in the President (Sec. 97, Rep. Act No. 296); that the power of the President to
appoint officers involves discretion which the Court cannot control (Lamb
vs. Phipps, 22 Phil., 456; Concepcion vs. Paredes 42 Phil.,
599; Abrera vs. Wood, 45 Phil., 612); that when the appointing power
has once acted and the appointee has accepted the office and done what is
required of him upon its acceptance, he cannot be removed therefrom, except for
any of the causes designated and in accordance with the proceedings established
by law (Serafin vs. Cruz, 68 Phil., 611). There is no gainsaying the
fact that no cause for ouster of respondent Fernandez from his present position,
appears of records.

Not having been exonerated nor reinstated, petitioner-appellant is not
entitled to back salaries (Reyes vs. Hernandez, 71 Phil., 397). ‘

In view hereof, the decision appealed from, dismissing the petition for
quo warranto is hereby affirmed, with costs against
petitioner-appellant.

Paras, C.J., Bengzon, Padilla, Bautista Angelo, Labrador, Reyes, J.B.L.,
Barrera, Gutierrez David and Dizon, JJ., concur.

Judgment affirmed.