JOSE PRO. TEVES, ET AL., PETITIONERS, VS. COMISSION ON ELECTIONS, RESPONDENT.

Upon request of the City Attorney of Dumaguete
City, the Commission on Elections rendered, on August 24, 1951, an
opinion holding that the qualified voters of said city cannot vote for
the provincial governor and members of the provincial board of Negros
Oriental. In the present special civil action for mandamus, a group of
qualified and registered voters of Dumaguete City, petitioners, allege
that the Commission on Elections, respondent, in pursuance of its
opinion, has refused and will continue to refuse to provide necessary
paraphernalia for the residents of said city to vote in the election to
be held on November 13, 1951, for the provincial governor and members
of the provincial board of Negros Oriental, and accordingly pray that
the Comission on Elections be ordered to provide said paraphernalia.

Petitioners’ contention is that, as the charter of Dumaguete
City is silent as to the right of its qualified voters to participate
in the election of provincial officials of Negros Oriental, and as said
voters are residents of the province, they are clearly entitled to vote
for said provincial officials.

The charters of other
recently formed cities are articulate on the matter. Thus, in the cases
of Bacolod, Cabanatuan, Legaspi, Naga, and Ormoc, their charters
expressly prohibit the residents therein from voting for provincial
officials of the provinces to which said cities formerly belonged. Upon
the other hand, the charters of Cagayan de Oro, Butuan, Cavite, Iloilo,
Calbayog, Lipa, San Pablo, and Dagupan contain provisions extending to
their residents the privilege to take part in the election of the
provincial officials of the provinces in which said cities were
previously included.

The question that presents itself has
reference to the effect of the omission in the charter of Dumaguete
City of an express provision on the right of its residents to vote for
provincial officials of Negros Oriental, in the light of the
legislative practice that, when desired, the right is either recognized
or withdrawn expressly. We are inclined to overrule petitioners’
position.

The creation of Dumaguete City has made it a political entity
separate from and independent of the province of Negros Oriental. The
purpose of an election is to enable the electorate to choose the men
that will run their government, whether national, provincial, municipal
or city. If so, no useful end will be served by allowing—in the absence
of express legislative preference—the voters of a city to participate
in the election of the officials of the province which has ceased to
have any governmental jurisdiction and authority over said city.

To confirm our view that the City of Dumaguete has been segregated
from the province of Oriental Negros for purposes of provincial
elections, we should point to the penultimate section of the charter
providing that “until otherwise provided by law, the City of Dumaguete
shall continue as part of the first representative district of the
Province of Oriental Negros.” This is an express exception to the
general effect of separation—an exception that serves to reiterate or
even establish the rule. In other words, the Congress meant that the
inhabitants of the city may not vote for provincial officials, but may vote for their representative in Congress.

On September 2, 1947, the Commission on Elections already held
that, as the charter of the City of Davao is silent on the point, its
electors cannot vote for any provincial official of the province of
Davao. Since the charter of Dumaguete City was approved in 1948, it is
logical to suppose that the Congress, familiar with said ruling, was
merely confirming or giving it effect by omitting an express provision
in said charter.

Having come to the conclusion that the voters of Dumaguete City
have no right to take part in the election of the provincial officials
of Negros Oriental, we have to rule that the respondent Commission on
Elections has no corresponding duty which may be enforced by mandamus

The petition is therefore dismissed, without pronouncement as to costs. So ordered.

Pablo, Bengzon, Reyes, Jugo, and Bautista Angelo, JJ., concur.

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FERIA, J.,

The Commission on Elections has refused and will continue to
refuse to provide the necessary pamphlets for the residents of the City
of Dumaguete to vote in the election to be held on November 13, 1951,
for Provincial Governor and Members of the provincial board of Negros
Oriental, on the ground that they do not have the right to vote for
said provincial officers. Hence, this action for mandamus.

In the first place, I am of the opinion that the Commission on
Elections has no power or jurisdiction to decide that the qualified
voters of said city, who have been voting for said officers in the
past, cannot continue voting for them in the next election to be held
on November 13, on the ground that the charter of the City of Dumaguete
approved on July 15, 1948, does not contain any express provision
either denying or granting them to vote for said officers. Sec. 2, Art.
X, of the Constitution expressly provides that the Commission on
Elections “shall decide, save those involving the right to vote, all
administrative questions, affecting election, including the
determination of the number and location of polling places, and the
appointment of election inspectors and of other election officials.”
The right to vote is a judicial question involving the constitutional
right of suffrage granted by Section 1, Article V, of the Constitution,
and it is not merely an administrative question affecting election.

The Charters of the Cities of Bacolod, Legaspi, Naga, Cabanatuan
and Ormoc contain provisions denying expressly the residents therein
the right to vote for provincial officials of the provinces within
whose territory they are located. But the Charters of the Cities of
Cagayan de Oro, Butuan, Cavite, Calbayog, Lipa, San Pablo, Dagupan,
Roxas City, Basilan, Illigan and Vigan expressly grant the residents
therein the right to take part in the election of the provincial
officials of the provinces in which they are included. And there are
cities like Osamis, Davao and Dumaguete and Pasay City, the charters of
which are silent as to whether or not the residents of said cities may
vote for the provincial officers of the respective provinces to which
they belong.

In view of the fact that there is no express prohibition or
permission for the qualified voters residents in the City of Dumaguete
to vote for the provincial governor and members of the Provincial Board
of Negros Oriental, I am of the opinion that they are entitled to
continue voting for them in the election on November 13, 1951. The fact
that the former Municipality of Dumaguete was converted into a city did
not make the City of Dumaguete separate and independent completely from
the Province of Negros Oriental, as shown by the provision of Section
39 of Republic Act No. 327, the Charter of Dumaguete, which provides
that the City of Dumaguete shall continue as part of the First
Representative Distriot of the Province of Oriental Negros. This
provision does not say or mean to say that the residents of Dumaguete
can not vote for provincial officials of Negros Oriental,but they may
vote for the representatives of the Province. It means that they may
continue voting for the representative of the First District and not
for the representative of the Seoond District,”and as the two districts
are representative districts of the Province of Oriental Negros, the
resident qualified voters therein may also vote for provincial officials
of said province, because the city is part of the first representative
district of the Province of Oriental Negros (Section 2071, Revised Adm.
Code.)

The above provision is not “an express exception to the general
effect of separation” of the city from the province, as contended by
the majority, but in conformity with the constitutional provision
(Section 7, Article VI of the Constitution) that “No person shall be a
member of the House of Representative unless he be a natural-born
citizen of the Philippines and, at the time of his election is * * * a
resident of the province in which he is chosen.” To construe that the
City of Dumaguete is not part of the Province of Negros Oriental, would
be to deprive the residents of said city of their . right to be elected
a member of the House of Representative or Provincial Governor or
Member of the Provincial Board of Negros Oriental, because they are not
residents of the province.

It is argued that, as the Commission on Elections already held
September 2, 1947, that the residents of the City of Davao could not
vote for provincial official of the province of Davao because the
charter of said city was silent on the point, it is logical to suppose
that the Congress is familiar with said ruling and was merely
confirming or giving it effect by omitting an express provision in
the Charter of Dumaguete City.” This reasoning is illogical for it is
predicated on a false premise for the following reasons: First, the
Commission on Elections has no jurisdiction or power to decide on the
right of a person to vote. Secondly, the ruling of said Commission does
not constitute a precedent, because it was subject to review by the
Supreme Court; and the Supreme Court has not affirmed it. And lastly,
if Congress had followed that ruling, Congress would not have expressly
denied the residents of the cities of Naga, Legaspi and Cabanatuan the
right to vote for the provincial officers in their respective
provinces, in the city charters of Naga and Legaspi, approved on June
18, 1948, and of Cabanatuan, approved on June 16,1950.

The majority concludes that “The creation of Dumaguete City has
made it a political entity separate from and independent of the
province of Negros Oriental. The purpose of an election is to enable
the electorate to choose the men that will run their government,
whether national, provincial, municipal or city. If so, no useful end
will be served by allowing—in the absence of express legislative
preference—the voters of a city to participate in the election of the
officials of the province which 1b s ceased to have any governmental
Jurisdiction and authority over said city.” This conclusion is not correct.

The essential constituents of the modern state are: people,
territory, government and sovereignty. The term government should not
be confused with state or political subdivision thereof such as
provinces, cities and municipalities, for government is the agency
through which the mandate of the state, province, city or municipality
are expressed and enforced. As defined by this Court in U. S. vs.
Dorr, 2 Phil. 332, 339, “government is an institution or aggregate of
institutions by which an independent society makes and carries out
those rules of action which are necessary to enable men to live in a
social state”. Thus section 2 of the Revised Administrative Code
provides; ” ‘ The Government of the Republic of the Philippines’ is a
term which refers to the corporate governmental entity through which
the functions of government are exercised throughout the
Philippines, including, save as the contrary appears from the context,
the various arms through which political authority is made effective in
the Philippines, whether pertaining to the central Government or to the
provincial or municipal branches or other form of local government.”

The creation by charter of the city of Dumaguete out of the
municipality of the same name through which as well as through
provincial, municipal and other form of local government, the functions
of government are exercised throughout the Philippines, did not
completely make the territory and the people or inhabitants of said
city separate and independent from the province of Negros Oriental of
which that former municipality was a party, for there is no express
provision in its charter to that effect or from which it may be
inferred; in the same way that a formation or creation by charter of a
provincial government out of a portion of the Philippines, does not
separate it from the Philippines sis a state. The conversion of a
municipality into a city by charter does not substantially change the
social or political status of its people or inhabitants, but rather the
form of local government established therein.

The only effect of the conversion of a municipality into a
chartered city is, unless otherwise expressly provided in the law, to
exempt the city officers thereof from the supervisory authority
exercised of the provincial governor over municipal officers as
provided for in Section 2188 of the Revised Administrative Code; to
eliminate the right of the head of any office dissatisfied with the
appropriation ordinance approved by the city council to appeal to the
Provincial Governor as in the case of a municipality (Section 2297 of
the Revised Administrative Code) to suppress ths power of the
Provincial Board to pass on the legality of resolutions, ordinances or
order passed by city councils nhioh the Provincial Board had over those
passed by municipal councils (Section 2223, Revised Administrative
Code).

But the rights and obligations of the Provincial Board provided in
the Revised Administrative Code to exercise governmental duties or
functions for the benefit and welfare of the inhabitants of the
province and all its inhabitants, including those of cities,
municipalities and other local form of government, within the province
continue in force. They are, among others; to construct and maintain
provincial roads, highways and bridges, wharves and piers (Sec. 2106 [f],
2113, Rev. Adm. Code); to establish parks, playgrounds, artesian wells
or systems for the supply of water, and drainage and sewerage system
(Sec. 2113 (c) Rev. Adm. Code); to subsidize or acquire,
operate and maintain means of water transportation within the province,
or between the province and neighboring provinces or Islands; to
dredger rivers and provide facilities for communication and
transportation by river, as well as to establish and operate telephone
system, within the territory of the province, (2113 (c),
Rev. Adm. Code); to provide suitable offices for Courts of First
Instance at the expense of the province (Section 2102, 2103, Rev. Adm.
Code); to maintain a special fund to be known as the provincial school
fund available exclusively for the maintenance of provincial schools
(Section 2113-1/2 Rev. Adm. Code); to make provision for the payment of
the tuitions of resident pupils of the province who may wish to enter
a school of another province or the City of Manila, for courses not
given in their home province, (Sec. 2126, Rev. Adm. Code); to
appropriate money for the maintenance of one or two students residents
of the province in the University of the Philippines or any
governmental educational institute to enable them to follow a
professional career (Section 2126, Rev. Adm. Code); and to appropriate
money for purposes not specified by law having in view the general
welfare of the province and its inhabitants (Section 2106 (a) Rev. Adm. Code).

To hold that the residents of Dumaguete City are not residents of
the Province of Negros Oriental, and therefore not entitled to have the
benefit of the above specified governmental functions of the Provincial
Government of said province, would be, not only to deprive them of the
right to vote and be voted for the positions of Provincial Governor and
Members of the Provincial Board, but also to exclude them from the
benefits derived from said functions of government, which may be
exercised by the Provincial Government and can not be carried out by
the city, either because the city has no power to do so, or can not
exercise .them by reason of their nature such as the establishment of
water supply and telephone system connoting the city with other
political subdivisions of the province. therefore, I vote for granting
the mandamus applied for.

Tuason, J., concurs in this opinion.

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PADILLA, J.,

I concur in the opinion of Mr. Justice Feria, and wish to add that
the fact.that in enacting the charter of the City of Dumaguete, the
Congress did not prohibit the city qualified electors to vote for
elective provincial officials, unlike in other city charters where
there is a permission in some and prohibition in others, gives rise to
the presumption that it intended to preserve the status of such
electors.