PEDRO R. ARTECHE, PETITIONER, VS. MARIANO L. DE LA ROSA, JUDGE OF FIRST INSTANCE OF SAMAR, RESPONDENT.

This
is an application for a writ of certiorari, prohibition, mandamus, and
injunction. In his verified petition filed July 22, 1933 the petitioner
prayed this court:

“(1) To order the
immediate issuance of a writ of injunction, requiring the respondent,
Hon. Mariano L. de la Rosa, Judge of the Court of First Instance,
Catbalogan, Samar, to immediately desist and refrain from further
proceeding in, and from taking any further cognizance of, criminal case
No. 8635 of his court, entitled ‘The People of the Philippine Islands vs.
Pedro R. Arteche’, until further orders are received by him from this
Honorable Supreme Court, in accordance with section 517 of the Code of
Civil Procedure;

“(2) To render a decision, after due
hearing hereof, declaring that the respondent, Hon. Mariano L. de la
Rosa, Judge of the Court of First Instance of Samar, has exceeded and
irregularly exercised his jurisdiction, has manifestly abused his
judicial discretion, and has arbitrarily applied the judicial power
vested in him, and compelling said respondent to reconsider and vacate
his order dated July 7, 1933 (Exhibit I), and enter another definitely
dismissing the information and absolving the accused in said criminal
case No. 8635 of his court, entitled ‘The People of the Philippine
Islands vs. Pedro R. Arteche’, as earnestly prayed for by the
Provincial Fiscal of Samar in his motion therein dated July 3, 1933
(Exhibit H); or directly issuing an order annulling said order of the
respondent of July 7, 1933 (Exhibit I), and ordering for the definite
dismissal of the above-mentioned criminal case against the petitioner
herein; or, if such be not feasible;

“(3) To order the
issuance of the writ of prohibition disqualifying and restraining the
respondent, Hon. Mariano L. de la Rosa, Judge of the Court of First
Instance of Samar, from taking any further cognizance of said criminal
case No. 8635 of said court, entitled ‘The People of the Philippine
Islands vs. Pedro R. Arteche’, in order that another Judge of
the Court of First Instance be designated and assigned by the
Honorable, the Secretary of Justice, to hear and decide said criminal
case; and to grant to the petitioner herein such other and further
relief as justice and equity may warrant; with the costs of these
proceedings, in all cases, against the respondent.”

We shall not attempt to summarize all the allegations of the petition.
Suffice it to say that the petitioner was a candidate for provincial
governor of Samar in the last general elections and was elected, but
his election was declared null and void by the respondent judge in
civil case No. 2709 of the Court of First Instance of Samar on August
22, 1931, and on appeal to this court said decision was affirmed on
September 13, 1932 (G. R. No. 36300)^[1].
Petitioner’s name was included in the list of those persons whose
election was approved by the Governor-General and who were directed to
qualify and assume office in accordance with law. After consulting the
Chief of the Executive Bureau and the Secretary of Justice, the
petitioner, acting in accordance with their opinion, assumed the office
of provincial governor of Samar on October 16, 1931, notwithstanding
the fact that his election had been declared null and void by the
respondent judge in the aforementioned decision, which was then pending
on appeal in this court.

On September 20, 1932 Jose
Quisumbing, provincial fiscal of Samar, charged the petitioner in the
Court of First Instance of that province with a violation of the
Election Law for having taken possession of the office of provincial
governor, when he knew that he was disqualified and without any right
to assume said office (criminal case No. 8635). After considering the
evidence presented by the fiscal, the respondent judge issued an order
for the arrest of the petitioner herein, who appeared and waived his
right to a preliminary investigation and prayed that the hearing be set
for December 15, 1932 and that the clerk of the court be instructed to
issue a subpoena duces tecum to the respondent judge to
appear and produce defendant’s communication regarding the taking of
his oath of office and a copy of respondent’s answer thereto. The
petitioner next filed in said case a petition for the inhibition and
disqualification of the respondent judge on the ground that he was a
principal and indispensable witness for the defense. The motion and
petition were both denied on the ground that there was no legal basis
therefor.

On July 3, 1933, Patricio C. Ceniza as provincial
fiscal of Samar filed a motion praying that the case against the
petitioner herein be dismissed for the reasons set forth in said motion
and because the fiscal could not positively prove that the accused
assumed the office of provincial governor of Samar knowing that he was
disqualified therefor. The respondent judge denied said motion on the
ground that the facts and conclusions of law alleged therein were
insufficient to justify the dismissal of the case. The allegations of
the petitioner respecting the contrary action taken by the respondent
judge on the motion of the fiscal in the case of Rodrigo A. Daza are
irrelevant as far as the present case is concerned.

A preliminary injunction was issued by this court in accordance with the prayer of the petition.

The respondent judge in his answer quotes the communications between
the petitioner and himself that the petitioner desired to have the
respondent judge produce as a witness in court, and states that they
are in the custody of the clerk of the Court of First Instance of Samar
and at the disposition of the petitioner. They are nothing more than
the request of the petitioner that the respondent judge administer the
oath of office of governor to him, and the answer of the respondent
judge that he was unable to comply with the request.

It is
apparent from the foregoing statement of facts that the petitioner as
the defendant in the criminal case for a violation of the Election Law
had no valid reason for calling the respondent judge as a witness, but
was merely endeavoring by indirect methods to prevent the respondent
judge from trying the case.

It is likewise apparent that
there was no valid reason for objecting to the competency of the
respondent judge, who declined to withdraw from the case, because he
was not disqualified in accordance with the provisions of section 8 of
the Code of Civil Procedure, and as we have already stated there was no
valid reason for calling him as a witness. Furthermore, the second
paragraph of section 8 of the Code of Civil Procedure provides that
when it is claimed that a judge is disqualified, he shall proceed with
the trial or withdraw therefrom in accordance with his determination of
the question of his disqualification, but that no appeal or stay of
action shall be allowed from, or by reason of, his decision in favor of
his own competency, until after final judgment in his court.

The denial of the fiscal’s motion for the dismissal of the complaint
against the petitioner was clearly a judicial act within the discretion
of the respondent judge, and “mandamus will not lie to control or
review the exercise of the discretion of any court when the act
complained of is either judicial or quasi-judicial.” (26 Cyc., 158;
Frank & Co. vs. Clemente, 44 Phil., 30.) Mandamus may be
availed of to require a judge to decide a question, but not to decide
it in any particular way.

As to the allegation of the
petitioner that he “has not been, and will not be given a fair,
impartial and just hearing in the aforecited criminal case, and a
judgment of conviction is manifestly contemplated against the
petitioner by the respondent,” his complaint as to what has already
taken place is without justification, and as to the trial which is to
be held, is premature. As to the merits of petitioner’s defense in the
criminal action, we do not deem it proper at this time to express any
opinion. In any event if he should be deprived of a fair and impartial
trial or erroneously convicted, he may exercise his right of appeal to
this court, and under the circumstances of the case that is a plain,
speedy, and adequate remedy. The preliminary injunction heretofore
issued is set aside, and the petition is denied, with the costs against
the petitioner.

Avanceña, C. J., Street, Hull, and Butte, JJ., concur.

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^[1] Tanseco vs. Arteche, 57 Phil., 227.