HIGINO ENAGE, PLAINTIFF, VS. FRANCISCO MARTINEZ, DEFENDANT.

This is an action of quo warranto with preliminary injunction
commenced by Higino Enage, provincial assessor of Leyte, against
Francisco Martinez, provincial treasurer of Leyte, to test the legal
right of the provincial board of Leyte and the Chief of the Executive
Bureau to provide for the fusion of the office of provincial assessor
of Leyte with the office of provincial treasurer of that province. To
the complaint, the defendant has interposed a demurrer.

Higino Enage was appointed provincial assessor of Leyte on December
13,1917, by the Chief of the Executive Bureau. Mr. Enage has filled the
position to which named from that date until the present. Beginning
with 1925, the provincial board of Leyte has made unsuccessful attempts
to legislate Mr. Enage out of office. One of these attempts resulted in
an opinion by the Attorney-General disapproving the legality of the
board’s action. However, undismayed by previous failures, on February
28, 1928, the provincial board of Leyte provided for the fusion of the
offices of the provincial assessor and the provincial treasurer. This
resolution, on reaching the Executive Bureau, was approved effective
January 1, 1929. Subsequently, the provincial board of Leyte adopted
another resolution providing that beginning with January 1, 1929, the
provincial treasurer be regarded as provincial assessor with all the
rights and privileges pertaining ta that office.

A technical defense suggested by the demurrer must first be noticed.
The complaint fails to allege that the defendant is unlawfully in
possession of the office claimed by the plaintiff. Quo warranto will
lie only when the party proceeded against is either a de facto or a de jure
officer in possession of the office. (Code of Civil Procedure, sees.
201, 202; Lino Luna vs. Rodriguez [1917], 36 Phil., 401; 22 R. C. L.,
p. 663.) However, as all that keeps the defendant from taking
possession of the office of provincial assessor of Leyte is the
restraining order of this court, and as after having done so the same
state of facts would be present, it is deemed more practicable and more
to the public interest to decide the case on the merits.

Sections 2092 and 2093 of the Administrative Code provide:

“SEC. 2092. Provincial assessor.—There shall be a provincial assessor in each province wherein is located real property subject to the annual ad valorem tax.

“Except
as otherwise specially provided, he shall be appointed by the Chief of
the Executive Bureau upon nomination of the provincial board. He shall
be a resident of the province to which appointed, and his salary shall
be as fixed by the provincial board with the approval of the Chief of
the Executive Bureau.”

“SEC. 2093. Application of Civil Service Law to assessor and deputy assessor.—The
positions of assessor and deputy assessor shall not be primarily
subject to the provisions of the Civil Service Law; but if any
civil-service employee should be transferred to such position or the
duties thereof should be imposed upon any such employee, his civil
service status and privileges shall not be thereby suspended or
impaired.

“A Government officer or employee appointed to the
position of assessor or deputy assessor may be allowed additional
compensation for his services in such capacity which shall be fixed in
his appointment or designation.”

With reference to the application which should be given to the
above-quoted legal provisions, it is to be noted that the law
contemplates that a government officer or employee may be appointed to
the position of assessor or deputy assessor. This being true, the
particular point now to be decided is whether or not there exists
incompatibility between the positions of provincial assessor and
provincial treasurer. We do not think that it has been shown that the
functions of the two offices are inconsistent. Originally and before
the position of provincial assessor was created by Act No. 2238, the
provincial treasurer, either in person or by authorized deputy,
supervised the appraisement and assessment of real property in all the
municipalities of the province (Provincial Government Act, No. 83, sec.
9). Contrasting the duties of the provincial assessor with the duties
of the provincial treasurer, there is no conflict of interests and one
office is not subordinate to the other.

There is another aspect to the question. According to a statement
made by the Assistant Chief of the Executive Bureau, for about ten
years it has been the policy of that office to have the provincial
treasurers hold at the same time the position of provincial assessor in
their respective provinces “for purposes of efficiency and economy. As
a result of this policy there are only four provinces now, namely:
Bohol, Leyte, Pangasinan and Oriental Negros whose provincial assessors
are not the provincial treasurers.” This settled governmental practice
should be respected by the courts. The opinion emitted by the
Attorney-General is not in conflict with this view for this opinion had
to do with the action of the provincial board of Leyte in endeavoring
by itself to abolish the office of provincial assessor, while the
instant facts concern the action taken by the Chief of the Executive
Bureau, the appointing power.

It results, therefore, in the demurrer being sustainable on two
grounds, the first having to do with the defect in the complaint, and
the second having to do with the material question which is in dispute.
As to the latter, we rule that the consolidation of the positions of
provincial assessor and provincial treasurer was legal. Accordingly,
the demurrer to the complaint will be sustained, and as it is manifest
that it would be impossible to reform the complaint to state a good
cause of action, the proceedings will be dismissed and the preliminary
injunction previously issued set aside. Without special taxation of
costs, it will be so ordered.

Johnson, Street, Ostrand, Johns, Romualdez, and Villa-Real, JJ., concur.