FILEMON MARIBAO, PETITIONER AND APPELLANT, VS. LUCIO ORTIZ, AS MAYOR OF RONDA, CEBU. THE PROVINCIAL TREASURER AND THE PROVINCIAL AUDITOR OF CEBU, RESPONDENTS AND APPELLEES.

This is an action to compel the mayor of the municipality of Ronda,
province of Cebu, to approve and sign the municipal payroll for the
period from 16 to 31 January 1956 and subsequent payrolls, and the
provincial auditor, the provincial treasurer and the municipal
treasurer to pass them in audit, approve and pay the salary of the
petitioner as chief of police, and to recover from them actual, moral
and exemplary damages in the sum of P5,000. The answer of the
respondents is that the petitioner was appointed by councilor Toribio
Chiong, who had no authority to make the appointment, and that the
respondent mayor, by executive order No. 4, dated 16 January 1956,
advised the petitioner of the illegality of his appointment and
terminated on that date his services as such chief of police. They
prayed for the dismissal of the petition with costs against the
petitioner.

This case was jointly heard with civil case No. R-4699 of the Court of First Instance of Cebu entitled Domingo Cui, et al., vs.
Lucio Ortiz, et al., and the two cases were submitted for judgment upon
a stipulation of facts. The part of the stipulation concerning this
case (No. R-4909) is as follows:

15.—That petitioner Filemon Maribao is of legal age, married and resident of the municipality of Ronda, Cebu;

16.—That the respondents are likewise of legal age, the first, being
the Municipal Mayor of Ronda, Cebu, who assumed office on January 1,
1956, after the local elections of November, 1955; and the second,
being the Municipal Treasurer of Ronda, Cebu, holding their respective
offices in the municipality of Ronda, Cebu; and the third and fourth
respondents are holding their respective Offices at the Capitol
Building, Cebu City;

17.—That petitioner is a civil
service eligible who was appointed by Councilor Toribio Chiong as Chief
of Police of Ronda, Cebu, on December 16, 1955, who was then Acting
Municipal Mayor of Ronda, Cebu, a copy of his appointment therefor
being hereto attached, marked as Annex “D” and made an integral part
hereof;

18.—That Councilor Toribio Chiong who signed the
said appointment of Filemon Maribao was at that time a councilor who
obtained the fifth place according to the number of votes obtained in
the local elections of. November, 1951, in Ronda, Cebu;

19.—That
Mr. Toribio Chiong, number five Councilor of the Municipal Council of
Ronda, Cebu, was acting as Municipal Mayor of Ronda, Cebu, on December
16, 1955; that the ranking councilor at the time of the appointment of
Mr. Toribio Chiong as Acting Municipal Mayor of Ronda, Cebu, was
Councilor Lourdes V. Diama who obtained the second highest number of
votes in the election of November, 1951, in Ronda, Cebu, vice the
number one Councilor Lucio Ortiz who was a candidate for Mayor in the
election of 1955, who automatically resigned as Councilor of Ronda,
Cebu, in accordance with the provisions of the Election Code;

20.—That
by virtue of said appointment signed by No. 5 councilor Toribio Chiong,
petitioner Filemon Maribao accepted and qualified as Chief of Police of
Ronda, Cebu, and received his salaries from the time of his appointment
up to and including January 15, 1956;

21.—That on January
16, 1956, respondent Mayor Lucio Ortiz served upon petitioner Executive
Order No. 4, series of 1956, advising the latter to vacate the office
of the Chief of Police of Ronda, Cebu, and turn over all properties to
the Municipal Treasurer of said municipality, who will in turn deliver
them to Honorato Villafañe who was appointed by respondent Mayor Lucio
Ortiz for the reason stated in the said executive order, a copy of
which is marked as annex “L”, being hereto attached and made an
integral part hereof;

22.—That upon complaint by
petitioners in both cases, respondent Mayor Lucio Ortiz was
administratively investigated and temporarily suspended for one month
after which he was reinstated;

23.—That for failure of
the Municipal Mayor Lucio Ortiz, respondent herein, to affix his
signature in the payroll of the petitioners covering the period from
January 16 to 31, 1956, the said respondent Municipal Treasurer of
Ronda, Cebu, to avoid responsibility, referred the matter to the Cebu
Provincial Auditor, P. Ordoñez, and the latter returned the papers to
the Municipal Treasurer of Ronda, Cebu per his 11th Indorsement, dated
March 20, 1956, a true copy of which is hereto attached, marked as
Annex “M” and made an integral part hereof;

24.—That the
appointment of petitioner Filemon Maribao as Chief of Police of Ronda,
Cebu, was not approved by the Commissioner of Civil Service, nor by the
Executive Secretary, Office of the President of the Philippines, and
that his appointment was withdrawn by respondent Mayor Lucio Ortiz
before the Bureau of Civil Service and file Office of the President of
the Philippines could act on them, true copy of said telegram of
withdrawal (Annex “I”), together with the copy of the telegram
addressed to respondent Mayor Lucio Ortiz, dated April 11, 1956, sent
by Executive Secretary Fortunato de Leon, informing, among others, that
the appointments of Filemon Maribao etc., were then not as yet
received, being marked as Annex “J”, both of which telegrams being
hereto attached and made integral parts hereof;

25.—That
on August 11, 1956, respondent Mayor Lucio Ortiz received a letter
dated July 26, 1956, thru the Commissioner of Civil Service, Manila,
and the Provincial Governor of Cebu, signed by Enrique C. Quema,
Assistant Executive Secretary, Office of the President of the
Philippines (Annex “K”), together with a copy of the letter dated at
Manila on July 18, 1956, signed by Fortunato de Leon, Executive
Secretary, Office of the President of the Philippines, addressed to Mr.
Filemon Maribao, Ronda, Cebu (Annex “K-1”); and an initialed true copy
of the first indorsement of the Bureau of Civil Service, dated July 10,
1956, to the Executive Secretary, signed by A. del Rosario,
Commissioner of Civil Service, (Annex “K-2”), all made as integral
parts hereof; and

26.—That the parties hereto submit the
foregoing stipulation of facts as the basis of the decision by this
Honorable Court, in both cases, reserving, however, to either party the
right to present additional evidence on points not agreed by the
parties. The parties agree further to submit their respective memoranda
in support of their theories.

From a judgment dismissing the petition, the petitioner has appealed.

The appointment of the petitioner as chief of police of the
municipality of Ronda, province of Cebu, was signed by councilor
Toribio Chiong, who on 16 December 1955 took over the office of mayor
by designation made by ex-mayor Fortunato Villalon. In the general
elections of November 1951, Fortunato Villalon was elected mayor, and
the councilor who obtained the highest number of votes among the
candidates for councilor was Lucio Ortiz. After Lucio Ortiz the next
councilor who received the highest number of votes was Lourdes V.
Diama. In the general election of November 1955, Lucio Ortiz ran for
municipal mayor of Ronda, was elected, and assumed office on 1 January
1956. Mayor Fortunato Villalon designated Toribio Chiong as acting
mayor during his absence and that of the vice-mayor, because Lucio
Ortiz, the first councilor, could not act as mayor, he having filed a
certificate of candidacy for the office of mayor of Ronda. During the
incumbency of Toribio Chiong as acting Mayor of Ronda by designation,
the petitioner was appointed chief of police. Having been elected to
the office of mayor and after assuming the office on 1 January 1956,
Lucio Ortiz found that the appointment of the petitioner as chief of
police was illegal, so he served upon him notice of the termination of
his service.

Section 2195 of the Revised Administrative Code provides:

Upon the occasion of the absence, suspension, or other temporary
disability of the mayor, his duties shall be discharged by the
vice-mayor, or if there be no vice-mayor, by the councilor who at the
last general election received the highest number of votes.

The designation by Fortunato Villalon of councilor Toribio Chiong who
was the fifth in point of number of votes received in the general
elections of 1951 is not as provided in the above quoted section of the
Revised Administrative Code. Such being the case, his designation to
act as mayor was illegal. Not being a de jure officer he could
not appoint the petitioner as chief of police of the municipality of
Ronda. In fact the petitioner’s appointment as chief of police was
neither approved by the Commissioner of Civil Service nor by the
President of the Philippines, as required in paragraph 14, Executive
Order No. 175, series of 1938, and was withdrawn by the respondent
mayor before the Bureau of Civil Service and the Office of the
President of the Philippines could act on it, and the appointment of
Honorato R. Villafañe, also a civil service eligible, as chief of
police of the municipality of Ronda, effective 16 January 1956 was
approved.

The judgment appealed from is affirmed, without pronouncement as to costs in both instances.

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

Bengzon, J., took no part.