FLAVIANO LOTA, PETITIONER, VS. THE COURT OF APPEALS AND MOISES SANGALANG, RESPONDENTS.

This is an appeal by certiorari from the decision rendered by the
Court of Appeals in Civil Case CA-G.R. No. 21246, Moises Sangalang,
plaintiff-appellee, vs. Flaviano Lota, etc., et al., defendants,
Flaviano Lota, defendant-appellant, declaring Moises Sangalang entitled to hold,
and continue in, the office of caretaker of the municipal cemetery of Taal,
Batangas.

The facts, as found by the Court of Appeals, are as follows:

“The petitioner is Moises Sangalang who alleges that, as a duly appointed
caretaker of the municipal cemetery of Taal , Batangas, he was unlawfully ousted
from office. The respondents are Flaviano Lota, mayor of Taal , who allegedly
ousted Moises from office; Jose Sangalang, the new appointee for the position;
and Aurelio Beron, in his capacity as municipal treasurer. Respondent Lota
contends that Moises was unlawfully occupying the position of cemetery caretaker
and the latter having abandoned it after all, he appointed Jose in his place in
the interest of the public.

“After hearing, the Court of First Instance of Batangas rendered judgment,
the dispositive part of which reads thus:

‘Wherefore, judgment is hereby rendered:

‘1. Declaring the plaintiff Moises Sangalang to be legally appointed cemetery
porter of Taal, Batangas;

‘2. Ousting the defendant Jose Sangalang from the office in question and
altogether excluding him therefrom;

‘3. Ordering the defendants Flaviano M. Lota and Aurelio Beron to pay the
salary of the plaintiff from February 15, 1956, as well as his salary
differential corresponding to the increase of his salary from P20.00 to P25.00 a
month from July 1, 1955 to February 14, 1956; and

‘4. Ordering the defendant Flaviano M. Lota to pay P200.00 to the plaintiff
in the concept of moral damages, and the costs of this action.

‘So ordered’

Only Mayor Lota appealed from the decision and now claims that:

‘1. The trial court erred in not dismissing plaintiff-appellee’s complaint on
the ground that the real party in interest, which is the municipality of Lipa
was not made party-defendant.

‘2. The trial court erred in not dismissing the complaint on the ground that
appellee was not validly appointed to the post of municipal cemetery of
Taal.’

“There is no question that Moises had been discharging the duties of cemetery
caretaker, from 1951 until Mayor Lota appointed Jose in his place on February
13, 1956 (Annex D). On June 30, 1955, the local Health Officer, Dr. Gregorio M.
Noche, extended a new appointment to Moises under Section 2199 of the Revised
Administrative Code to take effect on July 1, 1955 seemingly to enable him to
receive the increase of his salary from P240.00 to P300.00 per annum. For
reasons which have not been explained, the appointment was not acted upon
immediately by the corresponding authorities. Having been received in the office
of the Commissioner of Civil Service on April 20, 1956 it was approved shortly
thereafter. For such appointment the recommendation of the Municipal Mayor was
required by the law and the appointment extended to Moises Sangalang by Dr.
Gregorio M. Noche failed to show in the beginning the recommendation of the then
incumbent mayor, Dr. Ignacio Ilagan. His recommendation was secured only in
March, 1956 when he was no longer the municipal mayor. As to why the
recommendation of the municipal mayor was secured so late was explained by Dr.
Noche in the sense that when his attention was called to the omission of such
legal requirement, he made inquiry as to who was the mayor whose recommendation
was necessary. As a result, the District Health Officer of Batangas opined that
the recommendation of the incumbent mayor at the time of the appointment was the
one necessary.”

Based upon the above facts, respondent Court of Appeals, declining to act on
the question whether or not respondent Moises Sangalang is entitled to the
payment of salary and salary differential, on the ground that such matters are
governed by law and the administrative officials concerned should be given the
opportunity to comply with their respective duties, rendered a decision the
dispositive part of which reads:

“For all the foregoing, we declare that Moises Sangalang is entitled to hold
and continue in the office as cemetery caretaker, and with the modification
indicated above, the decision appealed from is hereby affirmed, without
costs.”

It is contended by the petitioner that the respondent Court erred in holding
that the present action is one of quo warranto; in not dismissing the
action for failure of the plaintiff to join therein the Municipality of Taal,
Batangas, as party defendant, and in declaring that respondent Moises Sangalang
is entitled to hold, and continue in, the office of caretaker of the municipal
cemetery of that municipality. It is argued that, as the Court of Appeals found
that respondent Moises Sangalang was the duly appointed caretaker of the
municipal cemetery of Taal, Batangas, and he was “unlawfully ousted from
office”, the remedy available to said respondent is mandamus, not
quo warranto; that said Court, instead of proceeding with the action,
should have dismissed it, for failure of the plaintiff to join therein the real
party in interest, the municipality of Taal, Batangas, under the doctrine laid
down by this Court in the case of Rufino Cabo Kho vs. Jose Rodriguez,
G. R. No. L-9032, September 28, 1957; and that the respondent Court should not
have declared the plaintiff Moises Sangalang entitled to hold, and continue in,
the office of caretaker of the municipal cemetery of said municipality, for he
had been duly replaced in that office by Jose Sangalang.

We do not find merits in appellant’s contentions. The claim that the instant
action is one of mandamus, not quo warranto, is devoid of
basis. While quo warranto and mandamus are often concurrent
remedies, however, there exists a clear distinction between the two. The
authorities are agreed that quo warranto is the remedy to try the right
to an office or franchise and to oust the holder from its enjoyment, while
mandamus only lies to enforce clear legal duties, not to try disputed
titles, 38 C. J. 546; 2 Moran, Comments on the Rules of Court, 1957 ed., 200;
that where there is usurpation or intrusion into an office, quo
warranto is the proper remedy, Lino Luna vs. Rodriguez, 36 Phil.,
401; and that where the respondent, without claiming any right to an office,
excludes the petitioner therefrom, the remedy is mandamus, not quo
warranto. Manalo vs. Sevilla, 24 Phil., 609; Lino Luna
vs. Rodriguez, supra.

As we analyze the facts in the light of the above rules, the instant action
is clearly one of quo warranto, although mandamus is also
invoked therein as an ancillary remedy. The facts, as found by the Court of
Appeals, show that respondent Moises Sangalang “was holding the position of
cemetery caretaker from 1951 until he was extended a new appointment on July 1,
1955 by Dr. Noche”; that “until then he had not resigned nor intended to abandon
the office”; that on February 13, 1956, the petitioner, Flaviano M. Lota,
appointed defendant Jose Sangalang as cemetery caretaker of Taal to take Moises
Sangalang’s place, and that Jose Sangalang claims to be the duly appointed
caretaker of said municipal cemetery. It also appears that Moises Sangalang
alleges in his complaint that he had the right to the possesion and enjoyment of
said office to which he had legally been appointed, and asks that Jose
Sangalang, who is occupying it unlawfully, be ousted. The present action,
therefore, is one whose purpose is to try the right or title to a public office
and oust the alleged unlawful holder from its enjoyment. Such proceeding and
remedy could only be litigated in a quo warranto action according to
the authorities.

We also find no merit in the claim that the action should have been dismissed
by the respondent Court for failure of the plaintiff to implead the municipality
of Taal . According to the jurisprudence, any person claiming to be entitled to
a public office may bring an action of quo warranto without the
intervention of the Solicitor-General or the Fiscal, Navarro vs.
Gimenez, 10 Phil., 226; Lino Luna vs. Rodriguez, supra; and
that only the person who is in unlawful possession of the office, and all who
claim to be entitled to that office, may be made parties in order to determine
their respective rights thereto in the same action. 2 Moran, Comments on the
Rules of Court, 1957 ed., 209, 210. The municipality of Taal does not claim that
it wanted and had the right to occupy and enjoy the office of caretaker of its
own municipal cemetery; its pretension, as voiced by its mayor, is that Jose
Sangalang is the party who had the right to occupy said office. It is not
necessary for that municipality to appropriate funds for the payment of Moises
Sangalang’s salary and salary differentials; there already exist funds
appropriated for the purpose, and what remained to be done was for the municipal
treasurer to disburse them in accordance with law. The municipality of Taal ,
therefore, is not an essential, nor even a necessary party, to this action. The
doctrine laid down by this Court in the case of Rulino Cabo Kho vs.
Rodriguez, supra, invoked by the petitioner, has no application in the
instant action. Unlike the case at bar, that case was one of mandamus,
and it appeared that the City of Cebu had need of appropriating funds for the
payment of the salary of the petitioner therein, for the party who in the
meantime occupied the office involved in the case had been paid the
corresponding salary. Hence, the City of Cebu was a necessary party to that
action.

We likewise find unfounded the claim that the respondent Court erred in
declaring respondent Moises Sangalang entitled to hold, and continue in, the
office of caretaker of the municipal cemetery of Taal. Upon the facts as found
by the respondent Court and quoted above, which is binding upon this Court, we
are fully persuaded that the holding complained of is correct. As aptly held by
that Court:

“In the instant case, we should not lose sight of the fact that Moises was
holding the position of cemetery caretaker from 1951 until he was extended a new
appointment on July 1, 1955 by Dr. Noche. His appointment by which he performed
his duties of a cemetery caretaker from 1951 until he was extended a new
appointment is not in dispute. That being the case, it is to be presumed that
his appointment was legal from 1951 to July 1, 1955 and until then he had not
resigned from or intended to abandon the office. His new appointment so-called
promotional, was intended to afford him an opportunity to receive the difference
of the salary from P240.00 to P300.00 per annum, so that should the new
appointment be disapproved, he could continue to discharge his duties for he was
still a cemetery caretaker under his old appointment at the salary of P240.00 a
year. He is supposed to hold his office, save in case of resignation,
abandonment or dismissal for cause.

“Under section 2199 of the Revised Administrative Code, the local health
officer is the government official empowered to appoint a cemetery caretaker in
a municipality. The municipal mayor can only indorse favorably or not the
appointment. He can ‘for cause’ suspend any non-elective officer or employee
over whose position he has the power of appointment, for a period of not
exceeding ten days, without pay, which suspension may be continued for a longer
period by the council; and by and with the consent of a majority of all the
members of the council he may discharge any such officer or employee’ (Sec.
2201, Revised Adm. Code). But be it the local health officer or the municipal
mayor, he cannot dismiss a duly appointed cemetery caretaker without cause. In
the case at bar, no formal charges for any irregularities have been filed
against Moises before his ouster.”

For the foregoing, we find that the judgment of the Court of Appeals whose
review is herein sought is in accordance with law and supported by the evidence.
Consequently, the same is hereby affirmed, with costs. It is so
ordered.

Bengzon, C.J., Padilla, Concepcion, Reyes, J.B.L., Barrera,
Paredes, Dizon, and De Leon JJ., concur.