MAYOR GUILLERMO LEGASPI OF DALAGUETE, CEBU, PETITIONER, VS. HON. RENE ESPINA, IN HIS CAPACITY AS PROVINCIAL GOVERNOR OF CEBU AND MEMBER OF THE CEBU PROVINCIAL BOARD; HON. OSMUND…

In an original action for certiorari and mandamus filed on July
9, 1969, petitioner, as mayor of Dalaguete, Cebu, questioned for lack of authority and validity
respondent provincial board’s decision of August 2, 1968 in Administrative Case
No. 1, S. 1968 of said board,
whereby the board found petitioner guilty of the charges of oppression and
serious misconduct in office filed against him by respondent governor as
complainant.  Respondent board imposed
upon petitioner the penalty of “suspension
effective August 2, 1968 to continue for a period of forty (40) months and fifteen (15) days”,
corresponding to the unex­pired term of office of petitioner as mayor.^[1]

Petitioner contended that the administrative decision was
rendered against him ex-parse and therefore void for lack of due process, and
that at any rate, the same could not be immediately executed against him in
view of the motion for reconsideration thereof filed by him with the board on
August 9, 1968, which he later supplanted under date of September 17, 1968 with
a notice of appeal from the decision to the Office of the President, asking
that all the records of the case be forwarded to the Executive Secretary, in view of the board’s
“unreasonable delay” in acting thereon, which “is inescapably
interpreted by respondent (petitioner herein) as a denial of his motion
for reconsideration and/or new trial.”^[2] He therefore prayed for a writ of this Court
for his immediate reinstatement.

Respondents, in their answer, traversed the factual allega­tions
of the petition, averring that petitioner was duly notified of the board’s
scheduled hearing of the charges, but that after it had denied petitioner’s
motion, through counsel, for indefinite suspen­sion of the hearing until after
the Court of First Instance of Cebu shall have passed
upon the merits of the petition for prohibition, docketed as Case No. R-10697,
which petitioner had filed against respondent governor praying for a
preliminary injunction against his
investigation and preventive suspension from office, respondent’s counsel
walked out from the hearing, notwithstanding the board’s admonition that his
withdrawal would be taken as a waiver of peti­tioner’s right to be present at
the hearing and to submit his def­ense. 
Respondents also assailed petitioner for failure to exhaust the avaialable administrative remedies, as well as questioned
the timeliness of petitioner’s appeal to the Office of the President, alleging
that the appeal was filed only fifty-five (55) days after receipt of the
board’s adverse decision, beyond the eight-day reg­lementary
period for appeal set by section 2190 of the Revised Administrative Code.  Respondents therefore justified the imme­diate
impelementation of the board’s decision for
petitioner’s sus­pension from office, on the ground that it had become final
and executory.

After the case’s
submittal for decision last September, 1969, it now appears from the motion to dismiss dated July 10, 1970 filed
by respondents, that on or about September 4, 1969, petitioner had filed his
certificate of candidacy for the position of Congressman for the fourth
district of Cebu in the last national elections held
on November 11, 1969, was voted for and obtained third place among the
principal candidates with 3,655 votes. 
Respondents, averring that
petitioner has herein made “no demand for damages or payment of salaries,” now ask for the dismissal of
the petition as moot and academic, since petitioner, having been considered
resigned by operation of law^[3] from his office of mayor of Dalaguete, Cebu, upon his filing of his certificate of candidacy for Congressman in the last
elections, is no longer entitled to the relief of reinstatement to the office of mayor that he seeks in
the case at bar.

Petitioner in his
opposition dated August 21, 1970, admits the fact of his having run for the
office of Congressman in the last elections but contends that the severance
from his office of mayor by virtue of section 27 of the Revised Election Code
should not be applied to him “because (he) was not actually holding
the position of mayor, he was suspended then and still is this date.”^[4] Besides, he argues that assuming that he
automatically ceased to be mayor on September 4, 1969
upon the filing of his certificate of
candidacy for Congressman, he would nevertheless have a claim for back salaries
from his suspension on August 2, 1968 up to said date, should his suspension be
declared to be without legal basis.

Petitioner’s opposition
lacks merit.  The automatic and permanent
loss of office^[5] by any elective provincial, muni­cipal or
city official “who runs for an office other than the one which he is
actually holding” decreed by the Revised Election Code, refers to the
local office to which the official concerned has been elected and to which he
claims title and make no exception for officials under suspension at the time
they file their certificate of candidacy for another office.  Since petitioner thereby forfeited any right
to the office of mayor of Dalaguete, Cebu as of September 4, 1969 when he filed his candidacy for Congressman,
his present petition seeking reinstatement to the said office of mayor has lost
all basis.  The element of urgency in his
petition for reinstatement should his suspension be found unwarranted under the
facts and the applicable law, which led the Court to hear his petition, has
likewise been lost.  All that is left for
him to pursue is his claim for back salaries during the period above stated,
and for this purpose, he must go through the normal administrative proceedings
and seek to establish his rightful claim thereto in his pending appeal with the
Office of the President, subject, of course, to respondents’ factual and legal
defenses.

The record shows that as
early as October 15, 1968, the Executive Secretary had asked respondents to
forward the records of the administrative case pursuant to petitioner’s appeal^[6] It may be assumed that during the interval,
the records must have been so forwarded by respondents, but in the contrary
case, res­pondents, excluding respondent Espina,^[7] are directed to so forthwith transmit
the records.

ACCORDINGLY, the petition at bar is hereby
dismissed.  Without costs.

Reyes, Acting C.J., Dizon, Makalintal, Zaldivar, Ruiz Castro,
Barredo, and Makasiar, JJ., concur.

Fernando and Villamor, JJ., did not take
part.

^[1]
This penalty was obviously decreed pursuant to the pro­visions in Sec. 5 of the
Decentralization Law (R. A. No. 5185) “that the penalty of suspension
shall not exceed the unexpired term of the respondent.”  Petitioner went on a 15-day leave of absence
effective August 2, 1970 but
could no longer assume his office at the end thereof on August 18, 1968 due to the implementation of the
board’s decision of punitive suspension.

^[2]
Annex D, petition, emphasis copied; note in paren­theses supplied.

^[3]
Under section 27 of the Revised Election Code, (R. A. No. 180), which
provides:  “Any elective provincial,
muni­cipal or city official
running for an office, other than the one which he is actually holding, shall
be considered resigned from his office from the moment of the filing of his
certificate of candidacy.”

^[4]
Emphasis copied.

^[5]
See Monroy vs. Court of Appeals 20 SCRA
620 (1967).

^[6]
Annex F, petition.

^[7]
Respondent Espina ceased to be provincial governor upon filing for senator on September 12, 1969, and was succeed­ed
by respondent Rama as then vice-governor.  (Par. 4, motion to dismiss).