HERCULANO GRAPILON, PETITIONER AND APPELLEE, VS. MUNICIPAL COUNCIL OF CARIGARA, LEYTE, ET AL., RESPONDENTS AND APPELLANTS.

In the general elections held on November 8, 1955 in the municipality of
Carigara, Leyte, Jose Aguilar and Herculano Grapilon were elected mayor and
vice-mayor, respectively. Thereafter, both qualified for and assumed office in
accordance with law.

On March 6, 1957, in compliance with a resolution duly approved by the
municipal council, Mayor Aguilar left Carigara for Manila on official business.
On that same date appellee inquired from the municipal secretary if it was true
that the mayor had left for Manila, to which the municipal secretary replied in
the affirmative, informing him besides that Mayor Aguilar left for Manila on
official business, without designating anybody as acting municipal mayor. After
receiving the secretary’s answer appellee informed him “that I assume office as
acting municipal mayor effective today and for the duration of his absence
pursuant to the provision of Section 2195 of the Revised Administrative Code”
(Exhibit A). He addressed a similar notice to the chief of police of the
municipality and to the provincial governor of Leyte. In his notice (by
telegram) to the latter, appellee also informed him that the municipal secretary
had refused to recognize him as acting mayor and asked for advice. Answering
petitioner’s telegram, the provincial governor, under date of March 7, 1957,
wrote him an official letter in which he said that, in view of the reasons
therein stated, “in the absence of the municipal mayor when such absence is for
official purpose he may not leave the office to the vice-mayor and there shall
not be an acting mayor” (Annex B to Exhibit G, page 10 of the Record of
Exhibits).

On March 11, 1957, alleging that the municipal council, the municipal
secretary Felipe Lianza aid the chief of police Ulpiano Arpon had refused to
recognize him as acting mayor and had excluded him from the use and enjoyment of
the office of municipal mayor, appellee filed with the lower court a petition
for mandamus praying that judgment be rendered requiring the therein respondents
to (1) recognize, submit to, and respect his authority as acting municipal
mayor; (2) open, unlock and allow his entry into the office of the municipal
mayor in the Municipal Hall of Carigara, Leyte; and (3) perform their duties
according to law and cooperate with their legitimate superior—the acting
municipal mayor. He also prayed that the respondents be ordered to pay him
P10,000 as moral damages, P1,500 as attorney’s fees, and P100 as costs of
litigation.

Upon denial of their motion to dismiss, appellants filed their answer
alleging therein, inter alia, that the municipal council had no juridical
personality and therefore could not be sued; that appellee had not been
designated as acting municipal mayor and, therefore, had no right to exercise
the rights and prerogatives of said office; that mandamus was not the proper
remedy because appellee should have sought relief under the provisions of
Sections 2188-2191 of the Revised Administrative Code before resorting to the
courts.

After trial upon the issues thus raised, the lower court rendered the
appealed decision, the dispositive part of which reads as follows:

“For all the foregoing, the Court declares that.the Vice Mayor is entitled to
assume and discharge the office of Municipal Mayor in accordance with Sec. 2195
of the Rev. Adm. Code in the absence of the latter without having designated
anyone to act as such; and considering that there is no other plain, speedy and
adequate remedy in the ordinary course of law to which the petitioner may
resort, the special remedy of Mandamus is in order and by the present is
granted. The respondents Municipal Secretary, Chief of Police and the five
members of the Municipal Council, Dr. Benito Go, Mrs. Marpa, Mr. Torrevillas,
Mr. Molo and Mr. Badiable are hereby ordered to immediately recognize the
authority and personality of the petitioner as acting Municipal Mayor, of the
municipality of Carigara and to pay the costs without pronouncement as to moral
damages and other incidental expenses alleged in the petition or in the
counterclaim.”

The respondents appeal ed and now urge us to reverse the decision of the
lower court upon the following grounds: firstly, appellee was not entitled to a
writ of mandamus because he had a plain, speedy and adequate remedy in the
ordinary course of the law to secure the relief sought in his petition;
secondly, under the provisions of Section 2195 of the Revised Administrative
Code appellee was not entitled to assume the office of municipal mayor of
Carigara during the absence of mayor Aguilar on official business in Manila; and
thirdly, the lower court erred in not awarding the moral damages, attorney’s
fees and expenses of litigation claimed in their counterclaim.

Inasmuch as the incident involved in this case happened four years ago, the
principal legal question involved herein could be considered as moot were it not
for the fact that appellants claim that the lower court erred in not awarding
them the damages sought in their counterclaim. Their right thereto depends
principally if not entirely upon whether appellee’s action was justified and, if
it was not, whether he filed suit in bad faith.

It is not disputed that mayor Aguilar left Carigara for Manila on March 6,
1957 on official business, in compliance with a duly approved resolution of the
municipal council. While appellee contends that it was enough for the mayor to
be away—not present physically—from Carigara for him to be entitled, to step
into his shoes, appellants, for their part, contend that the “absence,
suspension or other temporary disability of the mayor” mentioned in the legal
provision relied upon by appellee refer to disability which temporarily prevents
the municipal mayor from performing the duties of his office. Consequently,
appellants argue, inasmuch as mayor Aguilar was in Manila on official
business, he was not disabled at all but was actually performing the duties
of his office. To allow the vice-mayor to act as acting mayor under such state
of facts would lead to the irregular situation of two mayors for the same
municipality acting at the same time.

Appellants contention seems to be logical. Section 2195 of the Revised
Administrative Code considers “absence” on the same level as “suspension” and
other forms of temporary disability—If a municipal mayor is
suspended—as in the case of Laxamana vs. Baltazar, (92 Phil., 32;
42 Off. Gaz., [9] 3869) relied upon by appellee obviously he is disabled
temporarily; he can not act as mayor or exercise the powers and prerogatives of
his office while under suspension. The “absence” that would authorize the
vice-mayor to act as acting mayor should, therefore, be construed in the same
manner; it should be such absence as disables the mayor from exercising
the powers and prerogatives of his office. Such is not the case in the one
before us because mayor Aguilar was in Manila precisely in his capacity as mayor
of Carigara transacting official business. Although physically absent from
Carigara, he was in the exercise of the powers and prerogatives of his office
and was naturally entitled to continue drawing his salary.

Furthermore, while the ordinary meaning of “absence” is the state of being
away or not present, we believe that an officer’s absence is not such as to
warrant the placing of another person temporarily in his place unless said
officer is absent on an occasion demanding the immediate exercise of the powers
of his office. In the case before us there is no satisfactory evidence showing
that, during the absence of mayor Aguilar on official business in Manila,
particularly at the time appellee attempted to assume the office of acting mayor
of Carigara, an occasion had arisen demanding immediate and peremptory exercise
of the powers of that office either for the preservation of public order or for
the enforcement of the laws and ordinances. We, therefore, agree with appellants
that under the circumstances of the case, appellee had no right to assume the
office of acting mayor.

This question has already been decided by the Executive Branch of the
government. On November 25, 1948 the then Secretary of the Interior rendered an
opinion upon a case on all fours with the present, the pertinent portions of
which are as follows:

“The phrase ‘other temporary disability’ found in section 2195 of the Code,
follows the words ‘absence’ and ‘suspension’ and is used as a modifier of the
two preceding words, under the principle of statutory construction known as
ejusdem generis.

“Under American jurisprudence, ‘absence’ is construed to mean not merely
physical absence, but absence which prevents the mayor from the active
performance of his duties.

“‘In the case of the mayor of a municipality, it is usually provided that the
president of the municipal council shall exercise all the powers of the mayor
during his absence from the municipality, and under such a provision it has been
held that ‘absence’ must be construed reasonably, and so construed means what
may be called ‘effective’ absence. (37 American Jurisprudence, 893.’ In the case
of Gelinas vs. Fugere (R.I.) 180 A. 346, 351, ‘effective’ absence was
given the same interpretation.

“In the instant case, however, Mayor Carlos E. Perez left his office for
Manila, for the purpose of transacting official business affecting his
municipality * * *. Under this circumstance, his absence can not be called
‘effective’ to warrant the assumption by the vice-mayor of his position by
operation of law, as to all intents Mayor Perez continues in the exercise of his
power and prerogatives even while outside the municipality and draws his salary
for the period he was out of his official station.” (Decision Secretary of
Interior, dated November 25, 1948, pp. 54-55, The Provincial and Municipal Law,
by Cortes)

While the above opinion is not necessarily controlling upon the courts, it
must be accorded considerable weight giving as it does1the interpretation of the
Executive Department of a legal provision affecting the rights of subordinate
officials.

The above notwithstanding, we find appellants’ claim for damages to be
without merit because there is no evidence of any kind showing that appellee had
acted maliciously and in bad faith in bringing this suit for mandamus, nor is
there sufficient evidence in the record to prove the damages claimed.

Wherefore, the decision appealed from is reversed insofar as it grants the
writ of mandamus, and is affirmed insofar as it dismisses the counterclaim of
appellants. Without costs.

Bengzon, C.J., Padilla, Bautista Angelo,
Labrador, Concepcion, Reyes, J.B.L., Paredes, De Leon, and Natividad,
JJ., concur.