G.R. No. L-7662. July 31, 1954
MAXIMINO COMETA, PETITIONER, VS. WENCESLAO ANDANAR, RESPONDENT.
PADILLA, J.:
legality of the ouster of the petitioner from office as municipal mayor
of Sapao, province of Surigao, and to test the validity of the
designation and appointment of the respondent as acting mayor of the
municipality.
On 1 October 1953 the President of the Philippines created the
municipality of Sapao, Province of Surigao, pursuant to the provisions
of section 68 of the Revised Administrative Code.[1] On the
same day, the petitioner was appointed by the President mayor of the
newly created municipality and qualified as such by taking the oath of
office on 7 October 1953 and assumed all the duties and exercised the
functions thereof. On or about 8 February 1954, the petitioner alleges,
without legal and justifiable cause, not having been charged with any
malfeasance in office to warrant his removal or suspension, he was
removed from office by the designation and appointment of the
respondent as acting mayor of the municipality. The letter of
designation was signed by the Executive Secretary by authority of the
President. The respondent acted and is still acting as mayor of the
municipality, exercising the duties and functions of the office. The
petitioner further alleges that he has requested the Executive
Secretary to inform him of the cause of his removal from office, but
that the inquiry has remained unanswered.
The respondent contends that appointments made under section 10,
Rep. Act No. 180, are at the pleasure of the appointing power temporary
or discretionary in character and have no fixed term and are valid and
effective only up to the time their successors are duly elected or
appointed in accordance with law. Hence the petitioner is entitled to
“continue in office only until his successor is duly elected or
appointed. In other words, the appointment of the petitioner being
temporary in nature, he may be removed at pleasure. The contention is
without merit. Section 10, Rep. Act No. 180, provides:
When a new political division is created the
inhabitant of which are entitled to participate in the election, the
elective officers thereof shall unless otherwise provided, be chosen at
the next regular election. In the interim such officer shall, in the
discretion of the President, be filled by appointment by him or by a
special election he may order.
The foregoing provisions mean that upon the creation of a new
political division, the elective officers thereof shall, unless
otherwise provided, be chosen at the next regular election. Meanwhile,
the President may, at his discretion, appoint to such elective offices
suitable persons or call a special election. If the President chooses
to fill any of the positions by appointment, as he did in the case of
petitioner, then the appointee shall hold office until the next regular
election, not temporarily or in an acting capacity, but permanently
until his successor is chosen at the next regular election. The
municipality of Sapao was created on 1 October 1953 by executive order.
Under section 7 of Rep. Act No. 180, as amended by Rep. Act No. 867,
the next regular elections for provincial and municipal offices shall
be held “on the second Tuesday of November, nineteen hundred and
fifty-five * * *.” The respondent not having been elected at the
regular election he cannot be designated or appointed to succeed the
petitioner, as the latter can only be removed from office for cause as
provided by law and in the manner prescribed therein.[2]
The respondent also contends that the office of municipal mayor not
having a fixed term of office, the petitioner’s continuance therein
rests at the pleasure of the appointing power and may be removed even
without cause. Again, this contention is not well taken. Section 7,
Republic Act No. 180, as amended by Republic Act No. 867, provides that:
* * * The officials elected (at the regular
elections for provincial, municipal and municipal district offices)
shall assume office on the first day of January next following and
shall hold such office for four years and until their successors shall
have been duly elected and qualified.
The President not having called a special election but appointed the
petitioner municipal mayor of Sapao, he may not be removed from office
except for cause.[3] There is nothing to show in the
petition and the answer that petitioner has been removed for cause as
provided by law. As a matter of fact, the letter of the petitioner to
the Executive Secretary asking him for the cause or ground for his
removal has remained unanswered. The designation of the respondent to
act as mayor of Sapao in place of the petitioner is a removal of the
latter from office.
The respondent further contends that on 1 February 1954 the
petitioner was formally ousted and removed from the office by unanimous
resolution of the municipal council of Sapao and that his appointment
as mayor is in response to the general demand of the inhabitants of the
new political division and has the support of all the officials, barrio
lieutenants, heads of families and residents of the municipality as
expressed in a petition dated 1 April 1954 submitted by the inhabitants
of the municipality to the President, The municipal council cannot by
resolution remove the municipal mayor from office. And even if the
feeling of the inhabitants of a municipality be against an incumbent
mayor, the President cannot, as already stated, remove a municipal
mayor from office except for cause as provided by law and in the manner
prescribed therein. It is only at the proper time, by the exercise of
the citizen’s right of suffrage at the periodic election to be held,
that the people may directly exercise its power of removal with or
without cause.
The respondent finally alleges that the petitioner has lost his
right to the office upon voluntary surrender and relinquishment of his
office in favor of the respondent. There is no evidence to that effect.
The respondent has usurped and unlawfully held or exercised the office
of municipal mayor of Sapao to the exclusion of the petitioner.
The petitioner is entitled to the office now illegally usurped or exercised by the respondent.
Writ prayed for is granted, without costs.
Paras, C. J., Pablo, Bengzon, Montemayor, Reyes, A., Jugo, Bautista
Angelo, Labrador, Concepcion and Reyes, J. B. L., JJ., concur.
[1]
Executive Order No. 623, series of 1953, 49 Off. Gaz. 4231.
[2] Lacson vs. Roque, 49 Off. Gaz., (1) 93, 92 Phil., 456; Jover vs. Borra, 49 Off. Gaz., 2765, 93 Phil., 506.
[3] Lacson vs. Roque, supra; Jover vs. Borra, supra.