G.R. No. L-29458. March 28, 1969
VIRGINIA F. PEREZ, PETITIONER, VS. HON. RAFAEL DE LA CRUZ, REYNALDO BORJA, ROBERTO RUELO, FELICISIMO DE ASIS AND CARLOS DEL CASTILLO, RESPONDENTS.
RUIZ CASTRO, J.:
This is an original petition for certiorari and
prohibition with preliminary injunction filed by Virginia F. Perez, as
vice-mayor of Naga
City, to enjoin the enforcement of
a writ of prohibitory injunction dated January
22, 1968 issued by the respondent judge Rafael de la Cruz of the
Court of First instance of Camarines Sur in civil case 6504.
The essential determinative facts are not disputed.
On January 8, 1968, in a private conference held at the office
of the petitioner Perez, with the seven city councilors and the vice-mayor of Naga present, the latter presiding thereat, the matter of
selecting the secretary of the municipal board of the said city as well as the
chairmen of the various Standing committees of the said board came up for
discussion. At the indication by the
four Nacionalista Party councilors (the herein
private respondents Reynaldo P. Borja, Roberto R. Ruelo, Carlos G. del Castillo and Felicisimo
G. de Asis) of their desire to vote for a particular
person as secretary of the board and to hold the chairmanship of the committee
on markets for one of them, vice-mayor Perez expressed her intention to vote,
in the deliberation on such matters, to create a tie vote and thereafter to
exercise her power as presiding officer to break such deadlock.[1]
On January 10, 1968,
in another conference held at the residence of the petitioner Perez, the latter
reiterated the same intention to vote twice, and such statement was radiocast
on January 13, 1968.
On January 15, 1968 the four aforesaid councilors filed with the
Court of First Instance of Camarines Sur a petition for prohibition with writ of preliminary
injunction, docketed as civil case 6504, to prevent Perez from casting her vote
in the selection of the secretary of the municipal board and in the choice of
chairmen arid members of the different standing committees thereof, except in
the event of a tie vote, and from voting on any legislative proposal or
measure or in any proceeding of the said board except when the members thereof
are equally divided. In their petition,
the herein respondents alleged that the vice-mayor of Naga City
is not a member of the municipal board but only its presiding officer; that
pursuant to par. “g” of Rule III of the Rules of Procedure of the
said board, the chairman of the board cannot vote except in case of a tie;
that in the choice of secretary of the board, the vice-mayor as presiding
officer of the board cannot vote except when the members of the board are
equally divided; that the vice-mayor had threatened to participate in the
election of the board secretary, in the choice of the chairmen of the various
committees of the board and in other legislative matters, proposals and
proceedings, other than to break a tie vote.
The respondents claimed that they are entitled to the relief of
restraining the vice-mayor from voting on legislative matters and acts and
proceedings of the municipal board, because such proposed actuations, unless
restrained, would engender an anomalous situation which could cause great and
irreparable damage, work injustice, and transgress upon the rights, privileges
and prerogatives of the said respondents, as well as confuse the proceedings
and complicate public records to the detriment of public service. They, therefore, prayed for the issuance of a
writ of preliminary injunction against the vice-mayor.
On the same day, January 15, 1968, the respondent judge issued an
order directing the vice-mayor to show cause within 10 days why the writ should
not issue, at the same time setting the hearing on the petition for preliminary
injunction, for January 18, 1968.
On January 18, 1968
Perez moved for time to file a motion to dismiss and an opposition to the
issuance of a writ of preliminary injunction, but her, motion was denied orally
in open court by the respondent judge.
On January 19, 1968
the respondent judge issued an order granting the prayer for a preliminary
injunction upon the applicants’ posting a bond of P1,000, The writ of
preliminary injunction issued on January
22, 1968 recites:
“WHEREFORE, You, the City Sheriff of Naga
City or any of your lawful deputies is hereby commanded to restrain the
respondent from casting her vote in the selection of the Secretary of the
Board, the chairmanship and members of the different standing committees of the
Board except when there is a tie, and from voting and participating now and
henceforth in any legislative proposal, measure or proceedings of the Municipal
Board of the City of Naga, except when the members
thereof are equally divided and upon order of this Court.
“LIKEWISE, you respondent VIRGINIA F. PEREZ, desist and
refrain from casting your vote in the selection of the secretary of the board,
the chairmanship and membership of the different standing committees of the
Board, except when there is a tie, and from voting-and participating now and
henceforth in any legislative proposal, measure or proceedings of the Municipal
Board of the City of Naga, except when the members
thereof are equally divided, and upon order of this court.”
On January 22, 1968
Perez filed a motion to dismiss and/or dissolve the writ of preliminary
injunction, assailing the jurisdiction of the court over the subject-matter of
the action or the nature of the suit, and alleging that the complaint stated no
cause of action. She further assailed
the issuance of the writ as undue interference in matters purely legislative in
character, at the same time that she denied the existence of a threatened
invasion of the rights of the four councilors; she finally prayed for the
immediate dissolution of the writ of prohibitory injunction.
On February 1, 1968
the respondent judge issued an order denying the motion to dismiss the petition
and requiring the vice-mayor to answer within three days from receipt of his
order, thereby maintaining the injunction.
As the respondent judge had intimated to Perez that he would not
reconsider his order, Perez did not move to reconsider. Instead she filed on February 15, 1968 a
petition for certiorari and prohibition with preliminary injunction with
the Court of Appeals, docketed thereat as G.R. 40789-R, naming the trial judge
and the four councilors as respondents.
On February 20, 1968
the appellate court issued, thru its Second Division, a restraining order
enjoining the enforcement of the writ of prohibitory injunction issued by the
respondent court on January 22, 1968.
On March 5, 1968, taking their cue from the issuance of the said
restraining order against the four respondents councilors, Perez and the
Liberal councilors in the Naga municipal board (with
the four respondents councilors walking out of the session hall) passed an
amendment to the Rules of Procedure of the Naga
municipal board granting the chairman thereof the right to vote as a member,
and as presiding officer the right to vote again in case of a tie vote.
On July 12, 1968
the Court of Appeals rendered a decision dismissing Perez petition for certiorari
and dissolving the restraining order issued by it, on the ground that the said
appellate court had no jurisdiction to entertain the same, there being no
factual issues involved in the main case.
On September 3, 1968
Perez filed the present petition for certiorari and prohibition. We gave due course, and issued a writ of
preliminary injunction, upon the posting of a bond of P200, on September 11, 1968.
As matters now stand, the enforcement of the writ of prohibitory
injunction by the respondent judge in civil case 6504 has been stayed;
consequently, Perez has been allowed to sit in the municipal board both as a
constituent member and as presiding officer thereof.
The two issues dividing the parties are:
(1)
Is the vice-mayor of Naga city, besides being the presiding officer of the
municipal board, also a member thereof? Corollary thereto, can she vote twice:
to create a deadlock and then to break it?
(2)
Did the respondent judge have
jurisdiction to issue the writ of prohibitory injunction against Perez
I. Is the vice-mayor of the City of
Naga who is presiding officer of
the
municipal board also a mem–
ber
thereof?
To start with, we have the charter of the City of Naga, Republic Act 305, section
11 of which provides in part as follows:
“Constitution and organization of he Municipal Board; Compensation
of Members thereof. – The Municipal
Board shall be the legislative body of the city and shall be composed of the Mayor,
who shall be its presiding officer, the city treasurer, the city
engineer and five councilors elected at large by popular vote during every
election for provincial and municipal officials in conformity with the
provisions of the Election Code.” (underscoring supplied)
Remarkably, the charter did not at all
provide for the position of vice-mayor; indeed, it explicitly provided that
“the City Treasurer shall perform the duties of the Mayor” “in
the event of sickness, absence or other temporary incapacity of the
Mayor.”[2]
On June 19, 1959,
upon approval of Republic Act 2259[3]
making elective the offices of mayor, vice-mayor and councilors in chartered
cities, the position of vice-mayor, among others was created. Thus section 3 of said law provides:
“The position of Vice-Mayor is hereby created in chartered
cities which at present have no position for Vice-Mayor by provision of their
corporate charters: Provided,
That the Vice-Mayor shall be the presiding officer of the City Council or
Municipal Board in all chartered cities.”
Perez now contends that since under the Naga
City charter the mayor was the presiding officer of the municipal board, and
since under Republic Act 2259 creating the position of vice-mayor who was made
the presiding officer, the vice-mayor simply replaced the mayor as
“presiding officer” of the municipal board, the vice-mayor acquired
all the rights and prerogatives of the presiding officer under the charter,
one of which is “membership in the municipal board. To fortify her claim, Perez adverts to sec.
11 of Republic Act 537, as amended by Republic Act 1575,[4]
as well as to Bagasao, et al. vs. Tumangan, et al.,[5]
where this Court held that “the presiding officer of the Municipal Board
of the City of Cabanatuan
is a member thereof.”
The petitioner’s contention suffers from several grave
infirmities.
1. There is absolutely nothing in Republic Act 305, also known as
the charter of the City of Naga,
which provides that the vice-mayor of the said city is a member of the
municipal board thereof. Forsooth, the
position of vice-mayor was not even provided for, as the “acting
mayor” designated to take over in case of sickness, absence or other
temporary incapacity of the ‘mayor was the “City Treasurer.”[6]
True it is that upon the passage of Republic Act 2259, the
position of vice-mayor in Naga City, and in all other
chartered cities whose corporate charters did not provide for the position of
vice-mayor, was created, but section 3 thereof simply provides that “the
Vice-Mayor shall be the presiding officer of the City Council or
Municipal Board in all chartered cities.”[7]
It does not decree that the vice-mayor is a member of the city council
or municipal board.
2. Quiem v. Seriña, et al.[8]
is cited, where this Court held that the silence of Rep. Act 2259 on whether
the vice-mayor, the presiding officer, is a member of the board, was not enough
ground for excluding the vice-mayor from membership in the board. But the legal setting and premises in Quiem are widely disparate from those in the case at
bar.
In the first place, in Quiem we
found that “by express legal mandate, the vice-mayor of Cagayan de Oro City is a member
of the board” because “that city’s original charter[9]
calls for an appointive Vice-Mayor who ‘shall be a Member of the Municipal
Board.'” In the case at bar, however, in contrast with sec. 11 of Republic
Act 521 creating the city of Cagayan de Oro which explicitly made the vice-mayor a member of the
municipal board, section 11 of Republic Act 305 creating the City of Naga failed to provide even for the position of
vice-mayor.
In the second place, Republic Act 1325,[10]
particularly section 1 thereof, amending the Cagayan
de Oro charter, expressly reiterated that the
vice-mayor “shall be a member of the Municipal Board;” no such
similar statutory basis can be cogently invoked for the petitioner Perez.
3. Bagasao, et al. vs. Tumangan, supra, which was decided before the
enactment of Republic Act 2259 furnishes no prop to the petitioner’s
position. There we held that the
vice-mayor “as the presiding officer of the Municipal Board of the City of
Cabanatuan is a member thereof” and
“he may exercise his right to vote as a member on any proposed ordinance,
resolution or motion.” But we so held because “both the unamended and amended provisions of section 11 of the
Charter of the City of Cabanatuan
provide that the presiding officer of the Municipal Board is a member thereof.”
And as we have repeatedly stated, there is no provision whatever in Republic
Act 305 creating the City of Naga that provides for the
position of vice-mayor; and the amendatory provisions of Republic Act 2259
making the vice-mayor the presiding officer of the municipal board does not
make him a constituent member thereof.
To paraphrase Quiem, in the
absence of any statutory authority constituting the vice-mayor as a member of
the municipal board, in addition to being the presiding officer thereof, we cannot
read into the law something which is not there.[11]
For, as aptly put, differences in law beget differences in legal effects.[12]
4. Resort to the charter of Quezon City[13]
would avail the petitioner none. For
under section 9 of the said charter, as amend ed, the vice-mayor is explicitly
made “a member of the City Council,” and section 11 of the same law
expressly states that “there shall be a City Council composed of the Mayor
as Chairman, Vice-Mayor and eight other members.” Clearly,
then, the vice-mayor of Quezon City is a member
of the city council and, as such, is entitled to vote as a constituent member
thereof.
II. Rules of Procedure of the 4th &
5th
Municipal Boards of Naga
City
exclude chairman from vot–
ing
except in case of a tie vote.
Further cutting the ground from under the petitioner’s pretension
is paragraph (g) of Rule III of the Rules of Procedure adopted by the municipal
board of Naga
City, which recites:
“(g) The chairman cannot vote, except in case of a tie. However, a member of the Board acting as
chairman may vote as a member and as chairman to break a tie.”
The petitioner insists, however, that the above provision was
amended by the 6th municipal board, headed by her, to read as follows:
“(g) The Chairman, as member of the Board can vote and
as a Presiding Officer may vote again in case of a tie. In the same manner, a, member of the Board acting
as Chairman, may vote as a member and as Chairman, to break the tie.”
Such insistence is a sheer exercise in
futility because (1) the amended rule presupposes that the chairman is a
“member of the Board” – an assumption that is without legal basis;
(2) the said amendatory, rule was passed on March 5, 1968, almost two months
after the filing on January 15, 1968, by the private respondents of their petition
in civil case 6504, that is, pendence lite; and (3) although on the date the said
amendment was passed, the restraining order dated February 20, 1968 of the
Court of Appeals was in force, there was no quorum in the board,[14]
as the four respondents councilors had walked out of the session hall, leaving
only the three Liberal Party councilors and the petitioner. The proposed amendment was, therefore, a
complete nullity.
III. The Vice-Mayor replaced the Mayor
of
Naga
City as presiding
officer of
the
Municipal Board but did not re?
place as a member
thereof.
The petitioner posits the theory that since the mayor of Naga City,
who was a member of the municipal board under Rep. Act 305, was replaced by the
vice-mayor as presiding officer thereof, the vice-mayor must, perforce, be
deemed a member of the municipal board.
Pressing her bid, she asserts that Republic Act 2259 effected a mere
change in the officer who will preside the meetings of the board, and since the
vice-mayor replaced the mayor as “presiding officer” thereof, the
vice-mayor acquired all the rights and prerogatives of the presiding officer,
one of which is membership in the board.
This contention finds no support either in law or logic. For, section 3 of Rep. Act 2259 simply
installs the vice-mayor as the presiding officer of the board in all
chartered cities. It does not install
the vice-mayor as a member thereof. This
is especially true in the case of Naga where the
position of vice-mayor (whether appointive or elective) was originally not even
provided for in its charter – the official next-in-rank to the mayor being the
city treasurer. In no manner does the
law, either in its original form under Rep. Act 305, or in its amendatory shape
under Rep. Act 2259, constitute the vice-mayor as a member of the Municipal
board. It simply says that “the
vice-mayor shall be the presiding officer of the City Council or Municipal
Board.” Nothing more.
In this connection, American Jurisprudence has this to
say:[15]
“When the statutes provide that the
mayor shall preside at meetings of the municipal council, he is a constituent part
of the council for certain purposes, and he sits and acts therein, but he is
not in any proper sense a member of the council, unless the statutes
expressly so provide.”
This brings back to mind the ruling of
this Court in Rivera, et al vs. Villegas:[16]
“It is our considered view, however, that
the Vice Mayor of Manila is not identically situated as the Vice-Mayor of Cabanatuan City, except insofar as each forms part of the
respective municipal board and presides the same. The former is an integral part of the
Municipal Board of Manila, but only ‘as presiding officer’ thereof. Hence, unlike the Vice-Mayor of Cabanatuan City, that of Manila
does not have either the status of a regular member of its municipal board or
the powers and attributes of a municipal councilor. In short, the Vice-Mayor of Manila possesses
in the Municipal Board of Manila no more than the prerogatives and authority
of a ‘presiding officer’ as such, and those specified by law (to vote in case
of tie, and to sign all ordinances or resolutions and measures directing the
payment of money or creating liability enacted or adopted by the Board.)”
The mere fact, therefore, that the
vice-mayor was made the “presiding officer” of the board did not ipso
jure make him a member thereof; and even if he
“is an integral part of the Municipal Board” such fact does not
necessarily confer on him “either the status of a regular member of its
municipal board or the powers and attributes of a municipal councilor.” In sum, the vice-mayor of Naga
possesses in the municipal board of Naga no more than
the prerogatives and authority of a “presiding officer” as such, and
no more.
It is not amiss to note that the Rules of Procedure of the 4th
and 5th municipal boards of Naga
City which were then in force prior
to the start of the present controversy explicitly provide that:
“(g) The chairman cannot vote, except in case of tie However,
a member of the Board acting as chairman may vote as a member, and as chairman
to break a tie.” (Rule III)
Note that the petitioner was elected
along with the four respondents councilors in the local elections of November 14, 1967, and all of them
began to exercise their functions in January 1968. The vice-mayor, prior to the petitioner’s
term, had been presiding officer and chairman of the municipal board since
1959, upon the passage of Republic Pct No. 2259, and by the terms of the
board’s rules of procedure, the vice-mayor as “chairman cannot vote,
except in case of tie.” The chairman of the board – the vice-mayor was
therefore, bereft of a casting vote such as would empower him to vote to create
a tie, then vote again to break such tie.
In Bagasao, supra, this
Court quoted McQuillin as follows:[17]
“McQuillin in his treatise ‘The Law
of Municipal Corporations’ says:
‘The presiding officer is
not entitled to vote by virtue of his office, but of course if he is a member
of the body he may vote as such member and he may also vote the second time in
case of a tie, if the charter confers this privilege.‘” (underscoring
supplied)
And this Court proceeded to recognize the
right of the vice-mayor of Cabanatuan
City to vote as a member of the
board precisely be cause “both the unamended and
amended provisions of section 11 of the Charter of the City of Cabanatuan provide that the presiding
officer of the Municipal Board is a member thereof.”[18]
Needless to emphasize is the fact that neither the Naga
City charter nor R Act 2259 provides that the presiding officer of the Naga municipal board is a member thereof.
It is true that in the later case of Quiem,
we upheld the right of the vice-mayor of Cagayan de Oro City to vote as a member of the municipal board,
underscoring the observations that the charter of the city of Manila “in
language indubitable, withheld from the Vice-Mayor the right to vote ‘except in
case of a tie'” and that “no such delimitation of powers appears in
the Cagayan de Oro
charter.” It is likewise true that
no explicit delimitation of powers appears in the Naga City
charter, expressly withholding; the right to vote from the vice-mayor. But it is just as cogent that no explicit
legal mandate, either in the Naga city charter or in
the amendatory law, Rep. Act 2259, makes the vice-mayor a member of the board,
unlike in the case of the vice-mayor of Cagayan de Oro who by express legal mandate is a member of the board,
under that city’s original and amended charters. Absent such explicit legal mandate making the
vice-mayor of Naga
City a member of the board, we
cannot import therein the assumption that he is.
Mcquillin pertinently writes:[19]
“Casting vote by presiding officer. Where the presiding officer or mayor is a
member of the council or governing body, unless expressly forbidden by law, it
is generally held that he may not only vote on all questions as a constituent
member, but where the charter gives him a casting vote in event of a tie, may
vote the second time. However, he may be
without vote except in the case of a tie as where he is merely the executive or
presiding officer and not a member. In
such case, his vote cannot be counted in determining whether or not there is a
majority vote, nor can he vote so as to make a tie and then give the casting
vote. He gives the casting vote, where
he is empowered to do so, only in the event of a tie vote. Thus for example, in the election of
officers, the casting vote may be given only where there is an equal division
of votes between the candidates. It
cannot be given to make a majority in favor of one candidate, when the other
votes are scattered among other candidates.
Hence where three vote yea, two do not vote and one votes for another,
the latter three being recorded as voting no, and the mayor declares a tie, and
casts his vote with the three yea votes, there is no election.”[20]
In a case of more recent vintage, the State Supreme Court of
Georgia ruled:[21]
“The sole remaining issue of law
is: Did the mayor have the right, after
announcing that a majority of council had voted for the relator
to vote for the respondent and thereby create a tie vote, and again vote for
the respondent to break the tie? Unlike
the charters involved in the cases of Gostin v.
Brooks, 89 Ga. 244, 15 S. E. 361, and Johnson v. Arnold, 176 Ga. 910, 169 S.E.
505, the charter of the Town of Kite is silent as to when the mayor can
vote in the election of officers and the enactment of ordinances. We are of the opinion that the provision of
the charter that the ‘clerk shall be elected by the mayor and council’ has
reference to the name and style of the corporate governing body. Gostin v. Brooks, supra;
Akerman v. Ford, 116 Ga. 473 (3), 42 S.W. 777. Under the charter the office of mayor is
separate and distinct from the office of councilman. x x x So, the mayor is not a member of the council, he
does so as mayor and not as a member of council. x x x
“But where he [the mayor} is merely an
executive or presiding officer and not a member of the council, his vote
cannot be counted in determining whether or not there is a majority vote, nor
can he vote so as to make a tie and then give the casting vote. Thus, for example, in the election of officers
the casting vote may be given only where there is an equal division of votes
between the candidates.”
IV. Assuming that the Vice-Mayor
acquired
all the rights, prero?
gatives and privileges of the
Mayor
as presiding officer of
the
Council, she cannot vote as
a member except to
break a tie.
The petitioner points to the congressional record[22]
to buttress her claim that she is a constituent member of the board entitled to
vote twice, because it was there observed that “even under the present
law, the vice-mayor is a member of the municipal council.” Indeed, the
vice-mayor of a municipality under the Rev. Administrative Code was “an ex-officio
member of the council with all the rights and duties of any other member,”[23]
but at that time, the vice-mayor was not the presiding officer of the
board. The presiding officer was the
mayor who, by express legal mandate had “no right to vote, except in case
of tie.”[24]
The petitioner now argues that as vice-mayor she merely stepped
into the shoes of the mayor as presiding officer of the board, and since the
mayor was considered a member thereof, she too became a member entitled to the
same rights, powers and prerogatives of voting as the mayor. There is no gainsaying the fact that prior to
the approval of Rep. Act 2259, the mayor of a municipality was a member of the
municipal council,[25]
besides being the presiding officer thereof but his right to vote could be
exercised only in “case of a tie.[26]
Certainly, the vice-mayor who merely stepped into the shoes of the mayor could
have no greater power than that possessed by the mayor who could not create a
tie vote and then break it. A stream, as
the aphorism goes, cannot rise higher than its source.
Moreover, the observation made by then Sen. Dioscorro
Rosales, as bill sponsor of Senate bill 2 (which later became Rep. Act 2259),
that “under the present law, the vice-mayor is a member of the municipal
council,” could have no reference to the petitioner’s position as
vice-mayor of Naga City because when the said remark
was made, the Naga city charter, Rep. Act 305, did
not even provide for the position of vice-mayor.
V. The Petitioner Cannot vote Twice
to
Elect City Secretary of the
Board.
The law provides that “the city secretary shall be
elected” by majority vote of the elective city council or municipal
board.”[27] The majority of the council elected shall
constitute a quorum to do business.[28]
“Majority” means the number greater than half or more than half of
any total.[29]
There are seven (7) councilors in the municipal board of Naga City.[30]
Four councilors, therefore, would constitute a majority who, voting together
for a single person could elect a secretary of the municipal board.
In the light of the manifestation made by the four respondents
councilors belonging to the Nacionalista Party of
“their desire to vote for a particular person as secretary of the
Board” – which the petitioner does not traverse – and considering that
there are only three other councilors left, a tie vote is out of the question. A four-to-three (4-3) vote creates no tie
and, in the light of the conclusions we have above made, furnishes no occasion
for the petitioner to vote.[31]
We hold that the four concurring votes of the four respondents
councilors will carry the day for their candidate.
There is no dispute as to the power of the municipal board to
adopt its own rules of procedure.[32]
To this end, par. “g” of Rule III of the Rules of Procedure of the
municipal board of Naga provides:
“(g) The Chairman cannot vote, except
in case of a tie. However, a member of
the Board acting as chairman may vote as a member, and as chairman to break
the tie.”
It is not here urged that the petitioner
is a member of the board acting as chairman. Her claim is that she is the presiding
officer and also a member of the board. But as we said, she is not both the presiding
officer and a constituent member of the board.
She cannot, therefore, vote twice – once to create a tie as a constituent
member, and the second time around, to break such tie with another vote.[33]
VI. Did the respondent Judge have
Jurisdiction over the case?
The petitioner’s final contention is that as a legislative official,
performing legislative functions, she is not subject to any prohibitory process
by the courts. She invokes Vera et
al. vs. Avelino et al. (77 Phil. 192) where we
held:
“Petitioners pray for a writ of
prohibition. Under the law, prohibition
refers only to proceedings of any tribunal, corporation, board or person exercising
functions, judicial or ministerial. As
respondents do not exercise such kind of functions, theirs being legislative,
it is clear that the dispute falls beyond the scope of such special
remedy.”
Invocation of this ruling is completely
inapposite. The doctrine therein laid
down is based on the principle of separation of powers and checks and balances
and is not applicable to local governments.[34]
Moreover, executives at the local or municipal level are vested with both
legislative and sometimes judicial functions, in addition to their purely
executive duties.[35]
By explicit statutory command, courts are given authority to
determine the validity of municipal proceedings.[36]
It is not disputed that the present proceeding for prohibition has for its
objective to prevent the petitioner from “participating in the election
of Secretary of the Board, chairmanship of different committees and in voting
in other legislative matters, proposals and proceedings, other than to break a
tie.” It is our view that the petitioner, in insisting to exercise the
right to vote twice in the municipal board, acted without jurisdiction and
power to do so, and may be validly prevented and restrained by a writ of
prohibition.[37]
In reply to the petitioner’s assertion that the acts sought to be
restrained are mere “probable individual actuations” beyond the reach
of a prohibitory writ, suffice it to state that prohibition is essentially a
“preventive remedy” and is “not intended to provide for a
remedy for acts already accomplished.”[38]
Withal, petitioner’s threat of voting twice in the municipal board was not an
empty or meaningless gesture, for the record shows that on March 5, 1968, soon
after the writ complained of was lifted by the Court of Appeals through the
latter’s restraining order of February 20, 1968, the petitioner proceeded to
act by voting twice for the approval of an alleged amendment to the rules of
procedure of the municipal board.
ACCORDINGLY, the present petition is hereby denied, and
the preliminary injunction heretofore issued is dissolved, at petitioner’s
cost.
Concepcion, C.J., Reyes, JBL, Dizon, Zaldivar, Sanchez,
Fernando, Capistrano, Teehankee, and Barredo, JJ., concur.
Makalintal, J., did not take part.
[1]
The 7-man municipal board of Naga is composed of 4 Nacionalistas and 3 Liberals, and the residing officer
thereof, vice-mayor Perez, is a Liberal.
[2]
Sec. 8, R. A. 305.
[3]
An Act Making Elective The Offices Of Mayor, Vice-Mayor And Councilors In
Chartered Cities, Regulating The Election In Such Cities And Fixing The
Salaries And Tenure Of Such Offices.”
[4]
Otherwise known as the Charter of Quezon City.
[5]
L-10772, Dec. 29, 1958,
104 Phil. 1033, 1037.
[6]
Sec. 8, R.A. 305.
[7]
Sec. 3, RA. 2259.
[8] 17
SCRA 567.
[9]
Rep. Act 521, approved June 15, 1950.
[10]
Approved June 16, 1955.
[11] Wenceslao, et al. vs. Zaragoza,
Inc., L-22577, July 31, 1968,
24 SCRA 554.
[12] Quiem vs. Seriña, et al.,
17 SCRA 567, 574.
[13]
Rep. Act 537, as amended by Rep. Act 1575.
[14]
In a 7-member council., excluding the vice-mayor, four constitute a quorum;
assuming the vice-mayor as a member of the board, five would form a quorum.
(For further discussion on what constitutes a guorum,
see infra).
[15]
37 Am. Jur. citing:
People ex rel. Barton v. Londoner, 13 Colo 303, 22 P 764, 6 LRA 444; Cate
v. Martin, 70 NH 135 46 A 54, 48 LRA 613; State ex rel.
Calderwood v. Miller, 62 Ohio St 436, 57 NE
227; People ex rel Dafoe v. Harshaw, 60 Mich 200, 26 NW 879,
1 Am St Rep 498.
[16]
5 SCRA, 359, 367-368.
[17]
104 Phil. 1033, at 1036, citing McQuillin, rev. Vol.
2, 2nd edition, pp. 546-547.
[18] Ibid.,
at 1037.
[19]
“Municipal Corporations” rev. 2nd ed. vol. 2, p. 550.
[20] Id.
at 551-552 and cases cited, particularly:
Merriam v. Chicago etc. R. Co. 130 Mo.
App. 427, Ill S.W. 876; State ex rel. v. Creswell,
117 Miss. 795, 78 So. 770; People
v. Wright, 30 Colo. 439,
71 Pac. 365.
[21]
Palmer v. Claxton, 59 S. E. 2d 379.
[22]
Congressional (Senate) Record, 4th Congress, 2nd Sess.
Jan. 28, 1959, vol. II, No.
3, p. 42.
[23] Secs. 2204, 2622, Rev. Administrative Code.
[24]
Sec. 2225 of the Rev. Adm. Code
provides: “Restriction upon right
of mayor to vote in council. – The
mayor, as presiding officer of the council, shall have no right to vote,
except in case of a tie.”
[25]
Sec. 2624, Rev. Adm. Code.
[26]
Sec. 2225, Ibid.
[27]
Sec. 5, Rep. Act 2259; Sec. 13, Rep. Act 305.
[28] Secs. 2221, 2624(d), Rev. Adm. Code; sec. 11, R.A. 305; secs.
4 and 5, Rep. Act 2259.
[29] Webster’s
International Dictionary, Unabridged.
[30]
Sec. 4, R.A. 2259; sec. 11, R.A. 305.
[31]
See Cortez, Provincial and Municipal Law of the Philippines,
pp. 65-66. See also Martin, Rev. Adm. Code, vol. VI, p. 586. “The vice-mayor is not elected as member
of the municipal council, although he is considered an ex officio member. Under sec. 2221, he cannot therefore be
counted as a member of the council elected in determining whether there is a
quorum to do business.” (Opinion, Atty. Gen. Nov. 18, 1909).
[32] Secs. 2220, 2223, 2624(b), Rev. Adm. Code.
[33] McQuillin, rev.
vol. 2, p. 552: citing Johnson v. Arnold, 176 Ga. 910, 169 S. E.
505; Lewis v. McWhorter, 176 Ga. 914, 169 S. E. 507 – “Right to
cast vote in event of tie is not authority to create a tie where, for example,
three of five councilmen voted for the proposition and two opposed, the mayor
voting with the two does not create a tie.”
[34]
State v. City of Mankato,
136 N.W. 164, 41 L.R.A. (n.s.) 111; People v. Provinces,
35 Cal. 520.
[35] Tañada & Carreon, “Political
Law of the Philippines,
vol. I, 207.
[36]
Sec. 2236, Rev. Adm. Code.
[37]
37 Am. Jur. 801-802; 42 Am. Jur.
140-141.
[38]
Sec. 2, Rule 65; Cabañero v. Torres, 61 Phil.
523; Agustin v. de la Fuente, 84 Phil. 515;
Reyes, et al. v. Hon. Guillermo Blanco, L-14917, May 31, 1961.