RAFAEL P. MASCARIÑAS, PETITIONER AND APPELLANT, VS. MONEBRIO F. ABELLANA, RESPONDENT AND APPELLEE.

Petitioner Mascariñas has appealed on
questions of law from a decision of the Court of First Instance of Davao
(in its Case No. 3785) dismissing his petition for a writ of
Quo Warranto against respondent
Abellana.

The case, submitted to the court
below upon a stipulation of facts, may be briefly summarized as follows:
Respondent Monebrio F. Abellana had been nominated as Chief of Police
of Davao City by the President of the Philippines, on 17 February 1955,
and on 18 May 1955 his nomination was confirmed by the Commission on
Appointments. But on 31 July 1957 the President designated
herein petitioner-appellant Rafael P. Mascariñas to be “Acting Chief of
Police of Davao City”. Said appellant took his oath of office on 5
August 1957 and informed the Civil Service Commissioner of his
assumption of office on 28 August 1957. Two days previously, however,
Abellana had informed the Davao City mayor that he was not vacating the
office.

On 19 September 1957, the Armed Forces of the
Philippines issued Special Order No. 64, calling Abellana to active
military duty and placed him on detached service with the Office of the
President. On 15 October 1957, Abellana wired the mayor of Davao City:
“Am already on active duty effective sixteenth stop Mascarinas can
assume. (Sgd.) Abellana”. Opposition to appellant Mascariñas was,
therefore, withdrawn and the latter assumed office as Acting Chief of
Police.

Abellana served as Adviser on Police Matters
in the Office of the President, and, with the approval of the Auditor
General, collected, from 15 October 1957 to 28 February 1958, the
difference between his army pay and that of Chief of Police of
Davao.

On 21 May 1958, Mascariñas was in turn
nominated by the President, and the next day he was confirmed as Chief
of Police of Davao City. In July, 1959, Abellana instituted against
Mascariñas Special Civil Case No. 3040 for quo warranto in
the Davao Court of First Instance. The action was, on 1
August 1959, dismissed for lack of cause of action, and the dismissal
became final.

Reverted to inactive status effective 15
April 1962, Abellana advised the Davao mayor of his intention to
reassume the office of Police Chief, heretofore occupied by Mascariñas
and as the Secretary of Justice opined in Abellana’s favor and the
Executive Secretary, on 27 June 1962, instructed that he be installed,
the City Mayor notified Mascariñas to vacate and allowed Abellana to
enter into the performance of his duties.

Mascariñas,
who had been acting as Chief of Police until 29 June 1962, instituted
the present quo warranto proceedings. The court
below ruled in favor of Abellana, and Mascariñas appealed, contending
that Abellana lost his right to the office by staying on military duty
from 1957 to 1962; that his service in the office of the President was
acceptance of an incompatible office that extinguished his right to his
former position; that Abellana’s failure to protest appellant’s
nomination and confirmation as Police Chief and failure to appeal the
dismissal of his quo warranto suit against
Mascariñas in 1959 barred Abellana from claiming the position of Davao
City Chief of Police.

In support of his first
contention, Mascariñas invokes our ruling in Maddumba vs. Ozaeta, 82
Phil., 345, to the effect that section 49 of the National Defense Act
(C.A. No. 1), protecting government employees in their positions when
called into service as trainees, or called (for 30 days) for training as
reservists, has no application to those who join the armed forces or
the constabulary as regular members for a long period of
time.

It is well” to observe, however, that the
Maddumba case was decided on the basis of section 49 of Commonwealth Act
No. 1, in its original form, that prescribed as follows: 

“SEC. 49. Any employee of the
Government called for trainee instruction, or for regular annual active
duty training, shall not be compelled to lose his position or to suffer a
loss of pay due to his absence in the fulfillment of his military
obligations.”

Subsequently, by
Commonwealth Act No. 569, section 15, section 49, above quoted, was
amended to read: 

“SEC.
49. Any employee of the Government called for trainee instruction, or
for regular annual active duty training, or for extended tour
of active duly, shall not lose his position or suffer a loss
of pay due to his absence in the fulfillment of his military
obligations. A reserve officer on extended tour of active duty,
regardless of the amount of his compensation in the civil position,
shall be entitled to quarters or rental allowance as may be prescribed
for his grade by Army regulations.” (Emphasis
supplied)

The amendment includes
respondent Abellana under its protective mantle, it being undisputed
that he, being a reserve officer, was recalled to active duty, and not
merely for training. In fact, under this amended provision, and in
harmony therewith, the President issued Executive Orders No. 99, and 162
(35 Off. Gaz. 1479 and 36 Off. Gaz., 2373), providing as
follows:

* * * * * * * 

“1. No
official or employee of the Government, while undergoing
trainee instruction or who, upon completing thereof, shall have been
selected for additional training to qualify him as a
commissioned or non-commissioned officer of the Reserve Force, or who
shall have been called to regular annual active duly training,
or to extended tour of active duly in the Philippine Army, in
case he holds a commission in the Reserve Force, shall be
compelled to lose his position or to suffer any decrease of
pay whatsoever due to his absence in the fulfillment of his military
obligations.” (Italics supplied) 

“4. Upon his relief from trainee
instruction or extended tour of active duty in the military
service, the official or employee shall be reinstated to his
position in the Government with all the rights and privileges
thereof.” (Philippine Annotated Laws, Vol. II, pp. 49-50) (Italics
supplied) 

These provisions apply to Abellana’s case, and are
decisive to show that his five-year absence on military duty did not
work any forfeiture of his right to reoccupy the civilian position of
Chief of Police of Davao City to which he had been previously appointed
and confirmed. As a military officer on tour of duty, petitioner could
not disobey his assignment of the office of the Executive Secretary
without violating military discipline, hence his stay there can not be
considered a holding of an incompatible office.

Appellant Mascariñas places much stress on Abellana’s
1957 telegram to the mayor of Davao City the “Mascañas can be assume’
as evidencing respondent’s relinquishment of the disputed office. We see
no basis for his stand. In 1957, Mascariñas was still
Acting Chief of Police, and his assumption of
office in such acting capacity in no way implied any derogation of
Abellana’s position as the true incumbent, temporarily absent on account
of his recall to active military service.

Appellant Mascariñas also pleads that if Abellana
desired to retain his post, he could have claimed exemption from
military duty under section 64 of the National Defense Act (CA No. 1),
for it is therein provided that civilians “during their period of
employment or functions may have their trainee instruction deferred for
not to exceed three years.” But since Abellana was not being called for
trainee instruction, section 64 did not apply to him.

The respondent-appelle M.N. Abellana should not have
registered any protest against the nomination of appellant and its
confirmation by the Commission on Appointments is without significance,
for their validity depended entirely Police. As pointed out in the
appealed decision, without significance, for their validity depended
entirely on the existence of a vacant office both the nomination and its
confirmation for that office were null and void ab
initio. And section 49 of the National Defense Act, as
amended by Commonwealth Act No. 569, makes it clear the Abellana’s tour
of duty with the Armed Forces did not create any vacancy not lose his
position—due to his absence in the fulfillment of his military
obligations”. Protest or no protest, Mascariñas could not be rightfully
appointed to the same position that Abellana was already
occupying.

Mascariñas’ last argument
is that the present action of Abellana is barred by the unconditional
dismissal of Abellana’s 1959 quo warranto suit
(Case No. 3040). We agree with the lower court that this pretense is not
tenable. In 1959, Abellana was still in active military service, and
could not validity discharge the duties attached to his civilian office;
hence the court dismissed his quo warranto for
lack of cause of action. But in 1962 Abellana had reverted to inactive
status; no conflicting obligations barred any longer his occupying the
office of Chief of Police of Davao City and his right thereto fully
accrued. The lower court correctly held that under the circumstances
res judicata can not apply.

Wherefore, the decision appealed from, upholding the
right of respondent-appellee Abellana to to office of Chief of Police of
Davao City, is affirmed. Cost against petitioner-appellant Rafael F.
Mascariñas.

Bengzon, C. J., Bautista Angelo,
Concepcion, Barrera, Dizon, Regala, Makalintal, Bengzon, J. P.,
and Zaldivar, JJ.,
concur.

Judgment
affirmed.