DAMASO DISCANSO AND FLORENCIO VALIENTE, PETITIONERS AND APPELLEES, VS. FELICISIMO GATMAYTAN, MUNICIPAL TREASURER, GUIMBA, NUEVA ECIJA, RESPONDENT AND APPELLANT.

Petitioners-appellees Damaso Discanso and Florencio Valiente, were policemen
of the municipality of Guimba, Nueva Ecija, who were removed from office, in
1952, by the then Acting Mayor Dr. Virgilio V. Calica. Appellees instituted
Mandamus proceedings (Special Civil Action No. 1265) against the acting mayor
Arsenio N. Padre. The lower court rendered judgment, declaring the removal of
petitioners illegal and ordered their reinstatement and the payment of their
back salaries.

By virtue of the decision, the municipal council of Guimba approved
resolutions Nos. 135, Exh. A, dated December 3, 1955; 156, dated June 30, 1956,
Exh. B; and 162, dated July 7, 1956, Exh. C; whereby it assumed the
responsibility and resolved to appropriate the amount of P5,173.16 for the
payment of the back salaries of appellees, and authorizing the amount to be
carried as an outstanding obligation of the municipality, in the annual budget
for the fiscal year 1956-1957. Pursuant to said resolutions, the then incumbent
Mayor, Dr. V. Calica, approved vouchers of the petitioners (Exhibits D and E),
covering their salaries as policemen for the municipality of Guimba, from July
27, 1952 to October 22, 1955, at P65.00 per month, in the total amount of
P2,528.71, each. When the vouchers were presented to the municipal treasurer,
Feli-cisimo Gatmaytan, now respondent, he refused to pay, claiming that there
were no funds for said vouchers. The trial Court cited the treasurer to appear
before it, in order that he might be examined regarding the finances of the
municipality, and it was found that the amount of P10,000.00 was available for
said purpose. The petitioners in said case then presented a motion for the
execution of the judgment, which was denied on the ground that public funds are
exempt from attachment.

On October 13, 1956, long after the municipal council of Guimba had approved
the three (3) resolutions, the same council (now with different composition),
passed resolution No. 206, disallowing the inclusion of the amount in the budget
of the municipality. The refusal of the municipal treasurer to pay the vouchers,
caused the filing of the present petition for Mandamus, directed against said
municipal treasurer to compel him to pay their back salaries.

During the trial, the parties presented only documentary evidence. The lower
court rendered judgment, the pertinent portions of which recite:

“The petitioners have no other remedy in the ordinary course of law. A writ
of execution issued in Civil Case No. 1265 had been returned unsatisfied. And
since the defendant municipal treasurer has repeatedly and obstinently refused
to pay the salaries of the petitioners, there is no other remedy except the writ
of mandamus. To deny the petition would render the decision in Civil* Case No.
1265 illusory and nugatory.

Wherefore, let a writ of mandamus issue ordering the Municipal Treasurer of
Guimba to pay the back salaries of the petitioners herein in the the amount
stated and approved in their vouchers Exhibits D and E. * * *.”

This is an appeal from the above judgment, respondent-appellant alleging that
it was error for the lower court (1) to hold that a judgment against the mayor
is deemed a judgment against the municipality; and (2) to order him (appellant)
to pay the back salaries of the appellees, although the same are not provided in
a budget approved by the municipal council.

Anent the first proposition, in seVeral cases which involved the action for
mandamus filed by detectives unlawfully ousted from their positions, this Court,
without touching on the question of the City’s liability for the Mayor’s act in
illegally dismissing the detectives, directed the payment of their back
salaries, although the city had not been made a party therein (Mission
vs. Del Rosario, 94 Phil., 483; 50 Off. Gaz., 1571; Abella vs.
Rodriguez, 95 Phil., 289; 50 Off. Gaz., 3090; Uy vs. Rodriguez, 95
Phil, 493; 50 Off. Gaz., 3574; Briones vs. Osmeña, 104 Phil, 588; 55
Off. Gaz., (11) 1920; Covacha vs. Amante, G.R. No. L-8358, May 25,
1956, and Meneses vs. Lacson, 97 Phil., 857.) In the case of Mangubat
vs. Osmena, G.R. No. L-12837, April 30, 1959, where the defense was
that the City was not made a party to the proceedings, this Court made the
following observations:

“There is no reason to believe that these officers and the City Mayor would
have exerted greater effort, than those already displayed by them, in protecting
the interests of the City of Cebu, were it formally a respondent herein. Indeed,
it is only logical to expect, that, having been individually named as
respondents, said officers, must have taken as much concern if not more, in
warding off petitioner’s claim. Under the foregoing circumstances, we would be
subordinating the substance to the form if the action for mandamus-insofar as
the claim for back salaries is concerned- were, either dismissed, or remanded to
the lower court, for the corresponding amendment of the pleading and a
repetition of the proceedings held for the last five (5) years, in order to
reach the same decision rendered by the lower court and the same conclusions set
forth in this decision, as regards the substantive rights of the parties. It is
our considered opinion, therefore, that the ends of justice and equity would be
served best if the inclusion of the City of Cebu, as one of the respondents
herein, were considered a mere formality and deemed effected, as if a formal
amendment of the pleadings had been made.”

There can be no plausible reason why the above ruling on a procedural matter,
should not be applied in the cade under consideration. It will be noted that the
case on appeal was an off-shoot of a mandamus proceeding instituted against the
incumbent Mayor, in his capacity as such. And the municipality of Guimba is
presumed to have taken steps to contest the claim of the petitionera-appellees.
We may safely say, therefore, that the requirement of joinder of parties has
been substantially complied with.

Next in the order of discussion is the more fundamental issue of whether the
respondent-appellant municipal treasurer was justified in refusing payment of
the vouchers. After the rendition of the decision ordering the reinstatement of
the petitioners and the payment of their back salaries, the municipal council of
Guimba passed resolutions assuming the responsibility for and authorizing the
inclusion of the back salaries in the budget. There is, however, no ordinance
appropriating the amount, until the present. At most, the resolutions were only
proposals to have the amount included in the “forthcoming budgets”. A resolution
is ordinarily a declaration of a council, or a legislative body, evincing some
purpose or intent to do some act not the doing of the act itself. It is the
intention to enter upon some enterprise of public moment, something authorized
by law that it may do (W.B. Gibson Co. vs. Warren Metropolitan Housing
Authority, 29 N. E., 2d. 236). In the case at bar, the resolution assuming the
obligation is considered as merely an intention on the part of the council to
have the amount equivalent to the back salaries of appellees, included in the
budget. A resolution may have the expression of intendment, but in order to
become effectual, it must be expressed by legislative enactment, that is, by
ordinance (City of Owensboro vs. Bd. of Trustees, etc., 301 Ky. 113,
190 SW 2d, 1005, 1108). In this jurisdiction, all municipal legislation creating
liability should be embodied in an appropriation ordinance (Sec. 2296, Revised
Adm. Code). In the case under consideration, not only was there no appropriation
ordinance wherein the amounts involved have been included in the budget of the
municipality, but the municipal council itself had subsequently disallowed the
inclusion of the same in the budget. The Revised Administrative Code further
provides that the disbursements of municipal funds shall be made by the
municipal treasurer, upon properly executed vouchers, pursuant to the budget
(Sec. 2300). The Constitution also provides that “no money shall be paid out of
the Treasury except in pursuance of an appropriation made by the municipal
treasurer, upon properly’ executed Philippines). The writ of mandamus will not
issue unless the act desired is of absolute obligation on the part of the person
sought to be coerced; the relator must show a clear legal right to have the
thing done; the action sought must not only be in the respondent’s power to do,
but it must be his duty to do it; the act must be clearly prescribed and
enjoined by law; the duty must be plain and positive (Callaghan vs. Me
Gown, 90 S.W. 319, Meril on Mandamus, 43; cited in Provincial Remedies &
Special Civil Actions, Hernandez, Jr. and Feria; p. 152). Only specific legal
rights may be enforced by mandamus, if they are clear and certain. (Viuda e
Hijos de Crispula Zamora vs. Wright, 53 Phil., 613). It is not a legal
duty of the respondent-appellant to honor the vouchers in question, without a
budget or appropriation ordinance, setting aside the funds to cover the salaries
of the appellees, and enacted or promulgated in accordance with law. Mandamus,
therefore, does not lie.

It would seem that in matters of this nature, the case of Baldivia vs. Lota,
(107 Phil., 1099) has already blazed the trail that should be followed.

In view of all the foregoing, the decision appealed from is hereby reversed,
and another entered, dismissing the case, reserving, however, to the
petitioners-appellees the right to take the appropriate action. No pronouncement
as to costs. It is so ordered.

Paras, C.J., Bengzon, Padilla, Bautista Angelo, Labrador, Concepcion,
Reyes, J.B.L., and Gutierrez David, JJ., concur.

Barrera, J. concurs in the result.

Judgment reversed.