ERNESTO CAMPOS AND FLORENCIO OROC, PETITIONERS AND APPELLANTS, VS. ESTEBAN DEGAMO AND FELINO PALARCA, RESPONDENTS.

The complaint, styled “Quo Warranto”, filed on September 27, 1960, alleges
that in the election of November, 1959, petitioners Ernesto Campos and Florencio
Oroc were elected and proclaimed councilor No. 1 and councilor No. 2,
respectively, of the municipality of Carmen, Agusan; that on December 7, 1959,
respondents Esteban Degamo and Felino Palarca were proclaimed Mayor and Vice
Mayor, respectively, of the said municipality, notwithstanding the protest and
request that the proclamation be suspended on the ground that the Board of
Canvassers used in their canvass for election in Precinct No. 6, the election
return coming from the Provincial Treasurer’s Office, inspite of the fact that
the copy of the election return in the hands of the municipal treasurer of
Carmen, was available; that there was no valid canvass for the offices of Mayor
and Vice Mayor effected and the respondents could not legally occupy the said
positions; that on August 8, 1960, the respondents installed their own offices
in a temporary building near the municipal hall, and appointed policemen, with
the approval of the Provincial Treasurer; and that petitioners made verbal
demands upon respondents to stop performing the duties and functions of said
offices, but respondents denied and refused, thereby making the public believe
they were the lawful officials of said municipality. Petitioners, therefore,
prayed (a) that a writ of quo warranto be issued ousting and excluding
respondents Degamo and Palarca from the office of mayor and vice-mayor of
Carmen, respectively; and that they be declared entitled to said offices and
placed forthwith in possession thereof.

Respondents answering, after the usual admissions and denials, averred that
the Board of Canvassers was created and appointed by and acted upon instructions
of, the Commission on Elections; that they were duly elected by the people and
validly proclaimed by the said Board; that they occupied another building as
their office, because the then incumbent and defeated Municipal Mayor Jose
Malimit only vacated the municipal building on September 22, 1960; and that on
January 1960, respondent Degamo, as new mayor, terminated the services of the
policemen appointed by ex-mayor Malimit, and on September 22, 1960, the
Philippine Constabulary disarmed all the policemen appointed by said Ex-mayor.
As affirmative defenses, respondents claimed that (1) the petition was filed
outside the reglementary period; (2) there was no sufficient cause of action;
(3) the petitioners had no legal personality or authority to file the present
case; (4) the court had no jurisdiction over the petition and the petitioners;
(5) there was a pending case of the same nature and of substantially the same
allegations against the respondents, before the same court; and (6) the
respondents took their oaths of office and performed their respective duties
starting January 1, 1960. In their counterclaim, respondents prayed for moral
damages and attorneys fees.

On January 28, 1961, the lower court issued the following order:

The present quo warranto seeks the ouster of the respondents Esteban
Degamo and Felino Palarca from the positions of mayor and vice-mayor,
respectively, of Carmen, Agusan. The allegations of the petition show that it is
not based upon section 173 of the Revised Election Code because the petitioners
Ernesto Campos and Florencio Oroc were not candidates for the same positions but
for the positions of councilors of the municipality cf Carmen in the 1959
elections. Besides, the period of one week from the proclamation for the filing
of quo warranto under the election law has long expired.

This quo warranto may therefore be considered as an ordinary quo
warranto under the Rules of Court, but it cannot prosper because it fails to
state a cause of action, the petitioners not being entitled to the positions of
mayor and vice mayor of the municipality of Carmen, Agusan, inasmuch as there is
at present pending before the Supreme Court a case of quo warranto over
these two positions filed by Jose Malimit and Vicente Acain against the herein
respondents Esteban Degamo and Felino Palarca. Although the appealed case was
dismissed by this Court on jurisdictional grounds, the appellate court may
reverse the decision and order this Court to proceed with the hearing of said
quo warranto. Hence, this action is premature.

WHEREFORE, for lack of jurisdiction and cause of action, this petition is
hereby dismissed with costs against the petitioners.

Petitioners appealed directly to this Court on purely questions of law,
claiming in their brief that the lower court erred (1) in declaring that they
are not entitled to the said positions of Mayor and Vice-Mayor; and (2) in
declaring that the petition states no cause of action.

The dominant facts brought out at the hearing, pleadings and decisions of our
court, of which we take judicial cognizance, are the following: That neither
petitioners Campos or Oroc, was a candidate for the office of mayor or
vice-mayor of the municipality of Carmen during the 1959 elections; that Degamo
and Palarca were candidates and duly elected mayor and vice-mayor of said
municipality in said election and their close rivals were Jose Malimit for Mayor
and Vicente Acain for Vice-Mayor; that when this present action for quo
warranto, (Sp. Civil Case No. 117) was filed with the CFI of Agusan, there was
pending Quo Warranto proceeding filed by Malimit and Acain, against Degamo and
Palarca for the same offices^[1] and an
election protest was also filed by Malimit against Degamo;^[2] and that the complaint in special civil
case No. 117 did not set forth the names of Malimit and Acain who also claimed
to be entitled to the offices in question.

Under the theory that Special Civil Action No. 117 comes under the provisions
of the Revised Election Code, its filing violates section 173 thereof which
states:

“When a person who is not eligible is elected to a provincial or Municipal
Office, his right to the Office may be contested by any registered candidate for
the same office before the Court of First Instance of the province, within one
week after the proclamation of his election, by filing a petition for quo
warranto. The case shall be conducted in accordance with the usual procedure and
shall be decided within thirty days from the filing of the complaint. A copy of
the decision shall be furnished the Commission on Elections.”

Petitioners Campos and Oroc were not registered candidates for the offices of
Mayor and vice-mayor, and the quo-warranto was not filed within one week after
the proclamation of the persons sought to be ousted—the respondents herein. The
proclamation of the respondents was made on December 7, 1959, and the present
quo warranto complaint was filed on September 27, 1960, about a year later.

On the assumption that the present action is presented as an ordinary quo
warranto case (Rule 68, Rules of Court), same can not also prosper. Section
7, Rule 68, provides:

“What complaint for usurpation to set forth, and who may be made
parties.—When the action is against a person for usurping an office or
franchise, the complaint shall set forth the name of the person who claims to be
entitled thereto, if any, with an averment of his right to the same and that the
defendant is unlawfully in possession thereof. All persons who claim to be
entitled to the office or franchise may be made parties, and their respective
rights to such office or franchise determined, in the action.”

Malimit and Acain who claimed to be entitled to the offices of mayor and
vice-mayor, respectively, are not parties herein. The complaint must likewise
allege that plaintiffs were duly elected to such positions. Where the office in
question is an elective one, the complaint must show that the plaintiff was duly
elected thereto (Luna vs. Rodriguez, 38 Phil. 401; Acosta vs. Flor, 5 Phil. 18).
Petitioners-appellants Campos and Oroc, having been candidates and elected for
the office of councilors and not for the office of mayor and vice-mayor, they
are not the proper parties to institute the present action.

Moreover, there being a pending case for quo warranto before this court (G.R.
No. L-17850 foot note No. 1, supra), filed by Malimit and Acain against
the same Degamo and Palarca, for the office of mayor and vice-mayor of Carmen,
respectively, the filing of the case at bar was premature and the cause of
action had not as yet accrued.

The appeal is dismissed and the order appealed from is affirmed, with costs
against the petitioners-appellants.

Bengzon, C. J., Padilla, Bautista Angelo, Concepcion, Reyes, J. B. L.,
Dizon, and Labrador, JJ, concur.

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[1] G.R. No. L-17850, Jose Malimit & Vicente
Acain, vs. Esteban Degamo & Felino Palarca—Appeal from the Order of
Dismissal (Quo Warranto)—Pending decision.

[2]
G.R. No. L-017951, Jose Malimit, Protestant-Appellant vs. Esteban Degamo,
Protestee-Appellee—Appeal from Order of Dismissal (Election Protest) Pending
decision.