RICARDO CABALUNA, PETITIONER, VS. HONORIO VENTURA, CHIEF OF THE EXECUTIVE BUREAU, AND FELIPE AGONCILLO, SECRETARY OF THE INTERIOR, RESPONDENTS.

STREET, J.:

By the amended petition in this cause the petitioner, Ricardo Cabaluna, seeks
to obtain a writ of mandamus against the Honorable Felipe Agoncillo, Secretary
of the Interior, and Honorio Ventura, Chief of the Executive Bureau, requiring
them to order payment to the petitioner of the salary withheld from him for the
period during which he had been suspended from the office of chief of police of
Iloilo. A demurrer having been filed by the Attorney-General on behalf of the
respondents the cause was submitted for a determination of the questions thus
presented.

It appears that prior to October 16, 1923, the petitioner was chief of police
of the municipality of Iloilo, upon which date he was suspended from office by
the provincial governor of Iloilo by reason, of the pendency of a prosecution
against him for the alleged offence of unfaithfulness in office
(prevaricacion). In said prosecution the petitioner was convicted in
the Court of First Instance of Iloilo, but upon appeal to this court the
judgment was reversed and he was absolved (People vs. Cabaluna, G. R.
No. 21461^[1]). After his final acquittal
the Honorable Ruperto Montinola, provincial governor of Iloilo, published an
executive order reinstating the petitioner in the office of chief of police of
Iloilo and concluding in the following words: “and upon the reinstatement, the
incumbent shall be entitled to draw his full salary during the period of his
suspension, subject to the approval of the Secretary of the Interior.” This
order was forwarded in usual course through the Chief of the Executive Bureau to
the Honorable Felipe Agoncillo, Secretary of the Interior, and was returned to
the provincial governor of Iloilo, disapproved, with the statement that,
according to the opinion of the Attorney-General, the chief of police is not a
municipal officer within the meaning of section 2192 of the Administrative Code,
and that consequently there is no law under which the salary accruing during the
suspension of the petitioner could be paid.

As the case is submitted to us two questions are presented, namely, whether a
chief of police is a municipal officer within the meaning of section
2192 of the Administrative Code; and, whether, assuming that he is a
municipal officer, the respondent Secretary of the Interior can be
constrained to reverse his action and approve the executive order of Governor
Montinola, authorizing the payment to the petitioner of the salary that has been
withheld.

Upon the first of these points we do not hesitate to declare that a chief of
police is a municipal officer within the meaning of section 2192 of the
Administrative Code and that the Department Head has a discretion under that
section to order the payment in whole or in’part of the salary that was withheld
from the petitioner during his suspension. Section 2169 enumerates as chief
officials of the municipal government, the president, the vice-president, the
treasurer, and the councillors; but said section does not pretend to enumerate
all of the officers of the municipal government. In section 2 of the
Administrative Code, we find a suggestive definition of “officer,” wherein it is
stated that said term, as used in the Administrative Code, refers to officials
whose duties, not being of a clerical or manual nature, may be considered to
involve the exercise of discretion in the performance of the functions of
Government, whether such duties are precisely defined by law or not. That the
chief of police exercises the functions of an officer is a matter about which
there can be no doubt. That he is a municipal officer within the
meaning of section 2192 of the Administrative Code is equally clear. The chief
of police is appointed by the municipal president, with the consent of the
council (Admin. Code, sec. 2259, as amended by Act No. 3144); his salary is paid
from municipal funds (Admin. Code, sec. 2273) ; he is subject to suspension and
removal by the president, with the consent of the majority of the council
(Admin. Code, sec. 2201, as amended by section 6 of Act No. 3115) ; and he is
subject to the same administrative discipline as other municipal
officers. (Borja vs. Agoncillo, 46 Phil., 432.) The circumstance
that he is a peace officer and subject to additional military regulations
prescribed by the Chief of the Constabulary is not in any wise inconsistent with
his status as a municipal officer.

Moreover, if the petitioner is to be excluded from the operation of section
2192 of the Administrative Code as not being a municipal officer within
the meaning of said section, it would result that the case would be governed by
section 260 of said Code, since it must at least be admitted that the chief of
police is administratively subordinate to the provincial governor, who suspended
him. The difference between the two sections is that under section 2192 the
matter of paying salary withheld during suspension is left within the discretion
of the Department Head, while under section 260 the payment of such salary is
peremptorily required subject only to the disciplinary provisions of the Civil
Service Law. As already indicated, the provision applicable to the case is
clearly section 2192. It would indeed be singular if the Legislature had
intended to exclude the chief of police from the benefit of so just a provision,
and no such intention can, in our opinion, be fairly deduced from the language
used.

From what has been said it is manifest that the action taken by the
respondent Secretary of the Interior in disapproving the order of Governor
Montinola for the payment of the withheld salary was based upon an erroneous
assumption as to the state of the law. Bui it does not follow that this court
has jurisdiction to compel the Secretary of the Interior or his corespondent,
the Chief of the Executive Bureau, to order the payment of said salary. The law
says that in the case that has occurred “the Department Head may order the
payment of the whole or part of the salary accruing during such suspension.”
When this provision is read in conjunction with section 5 of the Administrative
Code it will be seen that the expression “may order,” as here used, implies the
use of discretion, and cannot be interpreted in the sense of “shall order.” For
aught we know there may be other reasons besides that expressed in communication
of the respondent Secretary of the Interior which would justify withholding the
salary now claimed by the respondent. At any rate the law places the
responsibility of deciding the matter on the administrative officer, and this
court will not attempt to control him in the exercise of his official
discretion.

The demurrer must therefore be sustained; and it being evident that the
petition suffers from a defect not curable by amendment, an order will be
entered dismissing the petition, without costs.

Johnson, Malcolm,
Avancena, Villamor, Ostrand, Johns, and Romualdez, JJ.,
concur.