FELIPE TAYKO, EDUARDO BUENO, BAUTISTA TAYKO, BERNARDO SOLDE AND VICENTE ELUM, PETITIONERS, VS. NICOLAS CAPISTRANO, ACTING AS JUDGE OF FIRST INSTANCE OF ORIENTAL NEGROS, ALFREDO …

This is a petition for a writ of prohibition enjoining the
respondent judge from taking cognizance of certain civil and criminal election
cases in which the petitioners are parties.

The petitioners allege that the respondent judge, previous to
this date, was appointed judge of the Court of First Instance of Oriental
Negros, to hold office during good behavior and until he should reach the age of
65 years; that he now has reached that age and, therefore, under the provisions
of section 148 of the Administrative Code as amended, is disqualified from
acting as a judge of the Court of First Instance. The petitioners further allege
that in view of the many election protests and criminal cases for violation of
the election law filed in the Court of First Instance of Oriental Negros arising
from the last election of June 5, 1923, the Honorable Sixto de la Costa was duly
designated and acted as auxiliary judge of the Province of Oriental Negros; that
between the auxiliary judge and the respondent judge herein there was an
understanding, and the assignment of the said auxiliary judge was made with this
understanding, that the said auxiliary judge so designated would hear and take
cognizance of all election protests and criminal actions then pending or to be
filed arising from the said last general election, and that the respondent
Honorable Nicolas Capistrano would try and-hear the ordinary cases pending in
the said court, but, notwithstanding this understanding or agreement, the
respondent judge tried and is still trying to take cognizance of the election
protests and criminal actions in said court; that the respondent judge declared
in open court that he will try the criminal cases herein mentioned for the
reason that the auxiliary judge refused to try the same on the ground that the
preliminary investigations were held before him, when, in truth and in fact, the
said auxiliary judge did not make the statement imputed to him and was and is
still willing to try all the election protests and criminal cases for violation
of the election law pending in the court of the Province of Oriental Negros;
that the respondent Honorable Nicolas Capistrano, in spite of the fact that he
was holding and is now pretending to hold the office of judge of the Court of
First Instance of Oriental Negros, took great interest and active part in the
filing of criminal charges against the petitioners herein to the unjustifiable
extent of appointing a deputy fiscal, who then filed the proper informations,
when the provincial fiscal refused to file criminal charges against the
petitioners for violation of the election law for lack of sufficient evidence to
sustain the same; that said respondent is neither a judge de jure nor de facto,
but that, notwithstanding this fact, he continues to hold the office of judge of
the Court of First Instance of Oriental Negros and pretends to be a duly
qualified and acting judge of the said province; and that he has tried, and
continues to try, to act as such judge and that there is reasonable ground to
believe that he will take cognizance of the cases in question unless he be
restrained by order of this court; that, in acting as a duly qualified judge
notwithstanding the facts alleged in the fifth, sixth, and seventh paragraphs
hereof, the respondent judge acted and is about to act without and in excess of
jurisdiction and also after the loss of jurisdiction.

To this petition the respondents demur on the ground that the
facts stated do not entitle the petitioners to the relief demanded in that (1)
none of the facts alleged in the petition divest the respondent judge of his
jurisdiction to take cognizance of the cases referred to in the complaint, and
(2) even admitting as true, for the sake of this demurrer, the facts alleged in
paragraph 7 of the petition, the respondent judge is still a de facto judge and
his title to the office and his jurisdiction to hear the cases referred to in
the petition cannot be questioned by prohibition, as this writ, even when
directed against persons acting as judges, cannot be treated as a substitute for
quo warranto, or be rightfully called upon to perform any of the functions of
that writ.

The grounds upon which the petition rests may be reduced to
three propositions: (1) That the assignment of the Auxiliary Judge, Sixto de la
Costa, to Dumaguete was made with the understanding that he was to hear and take
cognizance of all election contests and criminal causes for violation of the
election law and that the respondent judge was to take cognizance of the
ordinary cases and that there was an understanding between them that this
arrangement was to be followed. 

(2) That the respondent judge took great interest and an active
part in the filing of the criminal charges against the petitioners herein to the
unjustifiable extent of appointing a deputy fiscal who filed the proper
informations when the regular provincial fiscal refused to file them for lack of
sufficient evidence.

(3) That the respondent judge is already over 65 years of age
and has, therefore, automatically ceased as judge of the Court of First Instance
of Oriental Negros and that he is neither a judge de jure nor de facto.

(a) But little need be said as to the first proposition. A writ
of prohibition to a judge of an inferior court will only lie in cases where he
acts without or in excess of his jurisdiction (section 226, Code of Civil
Procedure), and it is obvious that a mere “understanding” as to the distribution
of cases for trial did not deprive the respondent judge of the jurisdiction
conferred upon him by law. It may be noted that it is not alleged that another
judge had taken cognizance of the cases in question or that they had been
definitely assigned to trial before such other judge.

(b) The second proposition is equally untenable. That the
respondent judge took great interest and an active part in the filing of the
criminal charges against the petitioners to the extent of appointing a deputy
fiscal when the regular provincial fiscal refused to file the proper
informations, did not disqualify him from trying the cases in question. Section
1679 of the Administrative Code provides that “when a provincial fiscal shall be
disqualified by personal interest to act in a particular case or when for any
reason he shall be unable, or shall fail, to discharge any of the duties of his
position, the judge of the Court of First Instance of the province shall appoint
an acting provincial fiscal, * * *.” (Italics ours.)

The determination of the question as to whether the fiscal has
failed to discharge his duty in the prosecution of a crime must necessarily, to
a large extent, fie within the sound discretion of the presiding judge, and
there is no allegation in the petition that such discretion was abused in the
present instance. It is true that it is stated that the appointment of the
acting fiscal was “unjustifiable,” but that is only a conclusion of law and not
an allegation of facts upon which such a conclusion can be formed and may,
therefore, be disregarded. It follows that in appointing an acting fiscal, the
respondent judge was well within his jurisdiction.

(c) The third ground upon which the petition is based is the
most important and merits some consideration. It is well settled that the title
to the office of a judge, whether de jure or de facto, can only be determined in
a proceeding in the nature of quo warranto and cannot be tested by prohibition.
But counsel for the petitioners maintains that the respondent judge is neither a
judge de jure nor de facto and that, therefore, prohibition will lie. In this,
counsel is undoubtedly mistaken.

The respondent judge has been duly appointed to the office of
Judge of the Court of First Instance of Oriental Negros, but section 148 of the
Administrative Code, as amended, provides that “Judges of the Court of First
Instance and auxiliary judges shall be appointed to serve until they shall reach
the age of sixty-five years.” In view of this provision and assuming, as we
must, that the allegations of the petition are true, it is evident that the
respondent is no longer a judge de jure, but we do not think that it can be
successfully disputed that he is still a judge de facto.

Briefly defined, a de facto judge is one who exercises the
duties of a judicial office under color of an appointment or election thereto
(Brown vs. O’Connell, 36 Conn., 432). He differs, on the one hand, from a mere
usurper who undertakes to act officially without any color of right, and on the
other hand, from a judge de jure who is in all respects legally appointed and
qualified and whose term of office has not expired (State vs. Carroll, 38 Conn.,
449; Denny vs. Mattoon, 2 Allen [Mass.], 361; Van Slyke vs. Farmers’ Mut. Fire
Ins. Co., 39 Wis., 390). 

“Apart from any constitutional or statutory regulation on the
subject there seems to be a general rule of law that an incumbent of an office
will hold over after the conclusion of his term until the election and
qualification of a successor” (22 R. C. L., pp. 554-5). When a judge in good
faith remains in office after his title has ended, he is a de facto officer
(Sheehan’s Case, 122 Mass., 445).

Applying the principles stated to the facts
set forth in the petition before us, we cannot escape the conclusion that, on
the assumption that said facts are true, the respondent judge must be considered
a judge de facto. His term of office may have expired, but his successor has not
been appointed, and as good faith is presumed, he must be regarded as holding
over in good faith. The contention of counsel for the petitioners that the
auxiliary judge present in the district must be considered the regular judge
seems obviously erroneous.

In these circumstances the remedy prayed for cannot be granted.
“The rightful authority of a judge, in the full exercise of his public judicial
functions, cannot be questioned by any merely private suitor, nor by any other,
excepting in the form especially provided by law. A judge de facto assumes the
exercise of a part of the prerogative of sovereignty, and the legality of that
assumption is open to the attack of the sovereign power alone. Accordingly, it
is a well established principle, dating from the earliest period and repeatedly
confirmed by an unbroken current of decisions, that the official acts of a de
facto judge are just as valid for all purposes as those of a de jure judge, so
far as the public or third persons who are interested therein are concerned. The
rule is the same in civil and criminal cases. The principle is one founded in
policy and convenience, for the right of no one claiming a title or interest
under or through the proceedings of an officer having an apparent authority to
act would be safe, if it were necessary in every case to examine the legality of
the title of such officer up to its original source, and the title or interest
of such person were held to be invalidated by some accidental defect or flaw in
the appointment, election or qualification of such officer, or in the rights of
those from whom his appointment or election emanated; nor could the supremacy of
the laws be maintained, or their execution enforced, if the acts of the judge
having a colorable, but not a legal title, were to be deemed invalid. As in the
case of judges of courts of record, the acts of a justice de facto cannot be
called in question in any suit to which he is not a party. The official acts of
a de facto justice cannot be attacked collaterally. An exception to the general
rule that the title of a person assuming to act as judge cannot be questioned in
a suit before him is generally recognized in the case of a special judge, and it
is held that a party to an action before a special judge may question his title
to the office of judge on the proceedings before him, and that the judgment will
be reversed on appeal, where proper exceptions are taken, if the person assuming
to act as special judge is not a judge de jure. The title of a de facto officer
cannot be indirectly questioned in a proceeding to obtain a writ of prohibition
to prevent him from doing an official act, nor in a suit to enjoin the
collection of a judgment rendered by him. Having at least colorable right to the
office his title can be determined only in a quo warranto proceeding or
information in the nature of a quo warranto at suit of the sovereign.” (15 R. C.
L., pp. 519-521.)

The demurrer to the petition is sustained, and inasmuch as it
is evident that the weakness of the petition cannot be cured by amendment, the
present proceedings are hereby dismissed with the costs against the petitioners
jointly and severally. The preliminary injunction hereinbefore issued is
dissolved. So ordered.

Avanceña, C. J., Johnson, Street, Malcolm, Villamor, Romualdez,
and Villa-Real, JJ., concur.