MARCOS M. CALO, PETITIONER AND APPELLANT, VS. FRANCISCO MAGNO, RESPONDENT AND APPELLEE.

Appeal from the decision of the Court of First Instance of Agusan in Special
Civil Case No. 58, the Hon. Montano-Ortiz, presiding, dismissing the petition
for injunction (with preliminary injunction) and damages filed, by petitioner
Marcos M. Calo against respondent Francisco Magno. The case was originally
appealed to the Court of Appeals but was certified by the Court of Appeals to
this Court on the ground that it involves a question of law.

Marcos M. Calo filed the petition for injunction and damages to restrain and
prevent respondent Francisco Magno, Acting Treasurer of Butuan City, from
enforcing an order of distraint and levy issued by respondent on petitioner’s
properties for the collection of real property taxes in the sum of P797.91. It
is alleged in the petition that respondent had no authority to collect the taxes
or to issue order, because respondent’s appointment and/or designation as acting
city treasurer is contrary to the provisions of Republic Act No. 523, otherwise
known as the Charter of the City of Butuan and therefore null and void.
Petitioner also asks that respondent’s appointment be declared invalid.

Respondent denied the material averments of the petition and avers that the
resort to distraint and levy is a legal remedy in the collection of delinquent
taxes, that his designation by the President under Commonwealth Act No. 588 is
lawful, and therefore he is vested with authority to perform the acts complained
of. By way of affirmative defense, respondent claims that petitioner had
previously challenged the validity of the former’s designation as Acting City
Treasurer but was advised of its legality that the present action, questioning
the legality of respondent’s appointment, is in reality one of quo
warranto which was not commenced within the period of one (1) year
prescribed by law and which petitioner could not institute, he not being the
proper party in interest; that petitioner is estopped to deny respondent’s
authority, the former having previously paid taxes to the city on several
occasions during the latter’s incumbency; that the court has no jurisdiction to
restrain the collection of taxes; that there is non-joinder of an indispensable
party, the city government of Butuan; and that assuming that respondent’s
appointment was illegal, he could be considered a de facto officer whose
acts may not be attacked collaterally in an injunction proceeding.

Stipulation of facts:

1. That respondent is a duly designated Acting City Treasurer of Butuan by
virtue of his designation as such, by the President of the Philippines, on
October 21, 1955 pursuant to the provision of existing law, as shown by Annex
‘4’ of ‘respondent’s answer;

“2. That in consonance with the aforestated designation, respondent has
cfdalified as such by taking his oath of office, as shown by Annex ‘4-A’ of
respondent’s answer, and has entered into the performance of the duties of the
office as Acting City Treasurer of Butuan since November 1, 1955 until the
present;

“3. That the duly; appointed City Treasurer of the City of Butuan is Quirico
Battad, Sr., who has been detailed for assignment in the Dcpaitment of Finance,
Manila, on November 10, 1954, with the approval of said department and the
President of the Philippines, as shown by Annex ‘A’ of the instant stipulation
of facts, and still is at present detailed in the Department of Finance, Manila;

“4. That prior to the designation of respondent as Acting Treasurer of Butuan
on October 21, 1958, Mr. Felix Martires, who was then Provincial Treasurer of
Agusan, has been designated as Acting City Treasurer of Butuan, which
designation has not been questioned by the petitioner;

“5. Thaf at the time of respondent’s designation as Acting City Treasurer of
Butuan, he was occupying the position of Property Clerk in the Office of the
Provincial Treasurer of Agusan; and that respondent is still holding said
position and drawing salary therefore from the province of Agusan, and in
addition thereto, he is drawing as additional salary from the City of Butuan the
difference between the salary as Acting City Treasurer and respondent’s salary
as Property Clerk, in accordance with and as provided for by law;

“6. That petitioner has previously questioned the legality of respondent’s
designation as Acting City Treasurer of Butuan to the President of the
Philippines, Auditor General and Secretary of Finance, all in Manila, but was
accordingly advised that the said designation is legal, valid and in consonance
with existing law, Commonwealth Act No. 588, a copy of the reply from the
Secretary of Finance, dated July 13, 1956 is hereto attached as Annex “B” of
this stipulation of facts;

“7. That petitioner is the proprietor of the CVC Lumber Industries, otherwise
known as the Consuelo V. Calo Lumber Industries; and that petitioner have
knowledge and admits that the said entity have in several previous occasions
paid internal revenue license, taxes, etc., to the Office of the City Treasurer
during the incumbency of the respondent as Acting City Treasurer of Butuan, as
shown by Annexes ‘1’ and ‘2’ of respondent’s answer;

“8. That petitioner has previously paid, his professional tax as a practising
attorney to the Office of the City Treasurer during the incumbency of the
respondent as Acting City Treasurer of Butuan, as shown by Annex ‘3’ of
respondent’s answer;

“9. That the communication, dated June 27, 1958 sent to and received by the
petitioner from the respondent is a letter demanding the payment of the amount
of P797.91 corresponding to petitioner’s delinquent and unpaid real property
taxes and penalties therein;

“10. That Mr. Modesto Piencenaves, the brother-in-law of the petitioner is
the Assistant City Treasurer of Butuan and has been occupying the said position
even before City Treasurer Quirico Battad, Sr. was detailed for assignment by
the Department of finance, also during the time when Provincial Treasurer Felix
Martires has been designated as Acting City Treasurer of Butuan By the President
of the Philippines on October 21, 1955 until the present.”

on
the basis of which, the lower, court issued a resolution, a portion of which
reads as follows:

“After a prolonged study of the foregoing legal provisions with the aid of
the well prepared memorandums of the parties, the conclusion is inescapable that
the designation of the respondent Francisco Magno, property clerk in the Office
of the Provincial Treasurer of Agusan, as Acting City Treasurer of the City of
Butuan was valid and hi accordance with law, the law having been made to fill, a
temporary vacancy in the Office of the City Treasurer of Butuan City.

“It should be noted that under Com. Act. 488 one of the cases wherein the
President of the Philippines may make the designation is in case of vacancy in
the office. This phrase does not appear in paragraph 2, section 18 of Rep. Act
523 (Charter of the City of Butuan) which only provides that the officer next in
charge (in the instant case, the Assistant City Treasurer) shall act in the City
Treasurer’s place in case of absence or sickness or
inability to act for any other reason. This means that the Charter of the
City of Butuan is limited in scope so that in case, of vacancy in the office,
(Com. Act 588, The general law) must be applied. It may be argued that ‘in case
of vacancy in the office is included in the phrase ‘inability to act for any
other reason’ under Section 18 of Rep. Act 523. Even if this interpretation is
accepted, still the designation of the respondent is valid because under Sec. 19
of the same Act, the City Treasurer holds office at the pleasure of the
President of the Philippines and is removable at his will.

“Sec. 19.—Appointment and removal of officials and
employees.—The President of the Philippines shall appoint, with the consent
of the Commission on Appointments, the judge and the auxiliary judge of the
municnial courts, the city treasurer the city engineer, the city attorney, the
city health officer, the chief of police, the chief of the fire department, and
the other heads of such city departments as may be created. Except the judge and
the auxiliary judge of the municipal court, said officers shall hold office
at the pleasure of the President.

“If the President of the Philippines has the right to remove the
City Treasurer of the City of Butuan at his pleasure, certainly he has
the power to designate any other officer to act temporarily for him in case he
is detailed for assignment, as In this case, in the Department of Finance.
Hence, the present action cannot prosper.

“Moreover, it is a well established rule that injunction will
not lie to restrain the collection of taxes except in case of irreparable injury
which not shown in this case. In the mind of the Court, the real purpose behind
this litigation is the ouster of the respondent to give way to the Assistant
City Treasurer but the remedy is not injunction but quo warranto, which,
however, is already barred by limitations. (Rule 68, sec. 16.)

“Wherefore, for all the foregoing, the present petition for a
writ of preliminary injunction being improper and without cause of action is
hereby dismissed with costs against the petitioner.”

The question to be resolved in this case is: Which of the two
provisions of law, Commonwealth Act No. 588, Sec. 1 or Sec. 18 of Republic Act
523, Charter of the City of Butuan, should apply. Said laws are as follows:

“Sec. 1. Any provisions of existing law to the contrary
notwithstanding, when an officer in the Executive Department of the Government,
appointed by the President of the Philippines with the consent of the Commission
on Appointments of the National Assembly or by the President alone, is unable to
perform the duties of his office owing to illness, absence, or other cause, or
in case of vacancy in the office, the President may designate another officer
already in the service or any other competent person to act temporarily in said
office, and such person shall, during the period of his temporary incumbency,
receive the compensation corresponding to the regfular incumbent, which
compensation shall be paid out of the appropriations for the office concerned,
unless he is already in the Government Service which case he shall receive only
such additional compensation as, with his existing salary, shall not exceed the
salary authorized by law for the position filled.” (Sec. 1, Com. Act No. 588.)

“Sec. 18. Powers and duties of the heads of departments.-
Each head of department of the city government shall be in control of such
department and shall possess such powers as may be prescribed herein or by
ordinance. He shall certify to the correctness of all payrolls and vouchers of
his department covering the payment of money before payment except as herein
otherwise expressly provided. At least four months before the beginning of each
fiscal year, he snall prepare and present to the Mayor an estimate of the
appropriation necessary for the operation of his department during the ensuing
fiscal year, and shall submit to the Mayor as often as required reports covering
the operations of his department.

“In case of absence or sickness, or inability to act for any
other reason, of the head of one of the city departments, the officer next in
charge of that department, shall act in his place with authority to sign all
necessary papers, vouchers, requisitions, and similar documents.” (Sec. 18, Rep.
Act 523, Charter of the City of Butuan.)

It will be noted that under the stipulation of facts the duly
appointed city treasurer of Butuan is Quirico Battad, Sr., but that on November
10, 1954 he was detailed for assignment in the Department of Finance, Manila,
with the approval of the Department and the President. While the designation of
Battad to the Department of Finance would not per se constitute an
appointment, the effect of which would be his having vacated his office as city
treasurer of Butuan, the fact that the designation was approved by the President
and that immediately thereafter the President designated Francisco Magno as
acting city treasurer of Butuan (Annex 4 of respondent’s answer) and Magno soon
after the designation took oath of office as City Treasurer, without the
original incumbent Battad objecting to the appointment of said respondent
Magno—all these circumstances had the effect of creating a vacancy in the office
of city treasurer of Butuan. Hence, the apparent legality of respondent Magno’s
appointment by the President, followed by his taking the oath of office as such.

In the case of Rodriguez vs. Del Rosario, 49 Off. Gaz.,
p. 5447, Oct. 30, 1953, we held that the temporary designation of the Mayor of
Cebu as a technical assistant in Malacañang had the effect of depriving the
incumbent mayor of his position as mayor, which said incumbent mayor could
accept or reject; but that when he thereafter demanded back his position as city
mayor, said act of his amounted to his renunciation of his position as technical
assistant in which he could not be compelled to stay. These acts of his
therefore did not amount to a renunciation by him of his position as mayor.
Conversely, in the case at bar, as the previous incumbent Battad was designated
to the department of finance with the approval of the President and the
President thereafter appointed respondent Magno as the acting city treasurer of
Butuan, who thereafter took oath of office without any express objection on
the part of former City Treasurer Battad, the former incumbent Battad was
deemed to have accepted the designation and thus abandoned the position of city
treasurer. So that when the President appointed the respondent Magno as acting
city treasurer of Butuan the position of said treasurer had become vacant by the
renunciation of the position by former treasurer Battad.

There was, therefore, a vacancy in the office of the city
treasurer of Butuan when Battad was designated to the Department of Finance by
action of the secretary of finance and of the President. Battad was not merely
absent or sick or unable to act for any other reason within the meaning of Sec.
18 of the Charter of the City of Butuan, and the provision of said charter
authorizing the officer next in charge in the department to perform the duties
of the previous incumbent is not applicable.

A case in point is Nolan, Atty. General vs.
Representative Council of City of Newport, Rhode Island Supreme Court, March 12,
1948. (57 A. 2d. pp. 730-732) The Court said in said case:

“The answer to that question involves a construction of secs. 24 and 26 of
the city charter, Public Laws 1906, chapter 1392. The pertinent part of sec. 24
provides that the board of aldermen shall elect a chairman who shall preside and
perform the duties of the mayor in case of the absence or inability of the mayor
to act’. The provision of sec. 26 which is involved reads as follows:

‘In case of vacancy in the office of the mayor or of any member of the board
of aldermen the representative council may call a special election to fill the
vacancy.’

* * * * * * *

“We are, therefore, of the opinion that sec. 24 does
not authorize the chairman of the board of aldermen to perform the duties of the
mayor in the case of a vacancy in that office created by the mayor’s death. We
find no other provision in the charter which authorizes the chairman or anyone
else to act as mayor in case of a vacancy. Such a contingency appears to have
been provided for only by sec. 26. Therefore, unless a special election is
called in accordance with that provision, the special powers vested in the mayor
cannot lawfully be exercised by anyone. In so holding we pass no judgment on the
act or acts of anyone who has assumed the exercise of such powers since the
death of the mayor. That question is not now before us.”

Similarly, the designation of Battad to the Department of
Finance created a vacancy in the office of city treasurer of Butuan, which
vacancy may be filled permanently or temporarily, by the President under Com.
Act 588. There being a vacancy in said office, it may not be considered as a
mere absence or inability of the incumbent to act where the next ranking officer
way perform the duties of the absent officer.

The action may be dismissed also on the ground that no action
lies to enjoin the collection of a tax. (David vs. Ramos & Maria B.
Castro, 90 Phil., 351.)

Wherefore, the decision appealed from is hereby affirmed, with
costs against petitioner-appellant. So ordered.

Bengzon, C. J., Dizon, Regala and Makalintal, .JJ.,
concur,

CONCEPCION, J.:

Concurring in the result. We have already held that the
acceptance of a temporary designation as City Mayor of Cebu (Rodriguez
vs. Del Rosario, 49 Off. Gaz., 5427) or of a designation as Acting Mayor
of Manila (Santiago vs. Agustin, 46 Phil., 14), and the assumption of
said offices, do not constitute an abandonment of the offices formerly held by
the designee and the appointee respectively. Accordingly, the acceptance by City
Treasurer Battad of his designation or detail to the Department of Finance, did
not amount to an abandonment of his office as City Treasurer of Butuan. Neither
may said abandonment be deduced from his failure to object expressly to the
subsequent designation of respondent Magno as Acting City Treasurer of Butuan,
for a “designation” is not an “appointment”, and is necessarily temporary in
character (Com. Act No. 588) and this is further stressed by the fact that
respondent was designated as acting treasurer—like the officer involved in
Santiago vs. Agustin (supra) who was designated as Acting mayor of
Manila (See Amante vs. Austria, 79 Phil., 780; Mendenilla vs.
Onandia, L-17803, June 30, 1962; Agapuyan vs. Ledesma, L-10535, April 25,
1957.) Hente Battad had no reason to object to said designation.

However, I concur in the result for, even if the designation of
respondent Magno were hypothetically considered illegal, he would be a Ae facto
officer and, as such, his title to the office can not be questioned except by
quo waranto proceedings and then only by the person who claims to be
entitled to the office or by the Solicitor General.

Padilla and Bautista Angelo, concur.

REYES, J.B.L., J.:

I concur In the result. Appellant has no personality to question
appellee’s title to the office held, and doubts as to the legality of the
Treasurer’s appointment or designation do not excuse nonpayment of taxes or the
paralyzation of the means to enforce their collection.

Padilla, concur.