THE PEOPLE OF THE PHILIPPINES, PLAINTIFF AND APPELLEE, VS. PRUDENCIO FEVIDAL, DEFENDANT AND APPELLANT.

Based
upon the facts inferred from Exhibits A, B and C appearing in the
record, an information against Prudencio Fevidal was filed in the
Courts of First Instance of Leyte, charging him with having violated
section 2761 of the Administrative Code which reads as follows:

“Sec. 2761. Holding of prohibited interest by public officer.—Any
municipal or township officer who, contrary to law, shall directly or
indirectly be interested in any contract work, or cockpit, or other
permitted game, or amusement, or in any business of the municipality or
township, or in the purchase of any real estate or any other property
belonging thereto shall, upon conviction, be imprisoned for not less
than six months nor more than two years.”

After the trial, the court found the accused guilty of said violation
of law and sentenced him to the indeterminate penalty of from six
months to two years’ imprisonment, and to pay the costs of the trial.
The accused appealed from the judgment which so sentenced him, and in
the brief filed by him in this instance, he argues that the lower court
erred in finding him guilty.

Exhibits A, B and C show that
on December 3 and 12, 1934, stall No. 1 of the public market was
awarded to the highest bidder after public auction by the corresponding
authorities of the municipality of Jaro of the Province of Leyte, by
virtue of the provisions of a municipal ordinance approved six months
prior thereto; that said bidder was Abdon Relevo, and that he tendered
his bid not on his own account but in the name and for the account of
the accused and the latter’s wife named Dionisia Malate. Upon this
evidence and the admissions made by both the accused and the fiscal
during the trial and, perhaps, upon other evidence which it is not
incumbent upon this court to examine now because its jurisdiction in
cases like the present one is confined to deciding questions of law,
the lower court arrived at the conclusion that when the accused,
through Abdon Relevo and through his wife, became interested in the
acquisition and possession of the stall in question in the public
market of Jaro, on December 3 and 12, 1934, by bidding therefor at the
public auction held for that purpose on said occasion, he was not yet a
member of the municipal council of said municipality, not even an
employee thereof; and that from the time he acquired and possessed said
stall under the circumstances above-stated, he began paying not the
daily rent of P.50 used to be paid formerly but that of P.65 daily,
which was exactly the rate for which he had tendered his bid at the
public auction.

The provisions of the section allegedly
violated, section 2761 of the Administrative Code, prohibit only the
act of taking part in the business of the municipality when the person
doing so is a public officer, a prohibition which is undoubtedly due to
the desire to prevent one, who is a municipal officer or employee, from
having more advantages than another who is not so, in taking part in
the business of the municipality, and to the desire to likewise prevent
one from serving two masters at the same time, because to do one or the
other is contrary to morals and public order.

The
accused-appellant not being in the circumstances above set forth,
inasmuch as, according to the findings of the lower court, he was not
yet a councilor when he indirectly took part in the acquisition and
possession of said stall of the public market of Jaro at a public
auction, the judgment appealed from should be reversed.

Wherefore, the appealed judgment is reversed, and the accused is hereby
acquitted of the violation of law with which he is charged, with the
costs de oficio. So ordered.

Avanceña, C. J., Villa-Real, Abad Santos, Laurel, and Concepcion, JJ., concur.

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DISSENTING

IMPERIAL, J.:

The information which commenced the process against the accused-appellant contains the following allegation:

“That
on or about February 20, 1936, and sometime prior thereto, in the
municipality of Jaro, Province of Leyte, Philippine Islands, the said
accused being then a municipal councilor of said municipality of Jaro,
Leyte, did, then and there, willfully, unlawfully and feloniously take
indirectly a part in a public auction over stall No. 1 in the public
market of said municipality of Jaro, Leyte, and did, then and there
possess pecuniary interest in the municipal contract of lease of public
market stall of said municipality of Jaro, Province of Leyte, by then
and there occupying the said stall No. 1 of said public market of said
municipality of Jaro, Province of Leyte.”

Section 2176 of the Revised Administrative Code reads as follows:

“Sec. 2176. Inhibition against holding of pecuniary interest by municipal official.—It
shall be unlawful for a municipal officer to possess a pecuniary
interest, either direct or indirect, in any municipal contract,
contract work, or other municipal business, or to hold such interest in
any cockpit or other game licensed by municipal authority.”

Section 2761 of the same Revised Administrative Code, under which the
information has been filed, is couched in the following language:

“Sec. 2761. Holding, of prohibited interest by public officer.—Any
municipal or township officer who, contrary to law, shall directly or
indirectly be interested in any contract work, or cockpit, or other
permitted game, or amusement, or in any business of the municipality or
township, or in the purchase of any real estate or any other property
belonging thereto shall, upon conviction, be imprisoned for not less
than six months nor more than two years.”

The facts upon which the judgment of acquittal is based are stated in the majority opinion as follows:

“Exhibits
A, B and C show that on December 3 and 12, 1934, stall No. 1 of the
public market was awarded to the highest bidder after public auction by
the corresponding authorities of the municipality of Jaro of the
Province of Leyte, by virtue of the provisions of a municipal ordinance
approved six months prior thereto; that said bidder was Abdon Relevo,
and that he tendered his bid not on his own account but in the name and
for the account of the accused and the latter’s wife named Dionisia
Malate. Upon this evidence and the admissions made by both the accused
and the fiscal during the trial and, perhaps, upon other evidence which
it is not incumbent upon this court to examine now because its
jurisdiction in cases like the present one is confined to deciding
questions of law, the lower court arrived at the conclusion that when
the accused, through Abdon Relevo and through his wife, became
interested in the acquisition and possession of the stall in question
in the public market of Jaro, on December 3 and 12, 1934, by bidding
therefor at the public auction held for that purpose on said occasion,
he was not yet a member of the municipal council of said municipality,
not even an employee thereof; and that from the time he acquired and
possessed said stall under the circumstances above-stated, he began
paying not the daily rent of P.50 used to be paid formerly but that of
P.65 daily, which was exactly the rate for which he had tendered his
bid at the public auction.

“The provisions of the section
allegedly violated, section 2761 of the Administrative Code, prohibit
only the act of taking part in the business of the municipality when
the person doing so is a public officer, a prohibition which is
undoubtedly due to the desire to prevent one, who is a municipal
officer or employee, from having more advantages than another who is
not so, in taking part in the business of the municipality, and to the
desire to likewise prevent one from serving two masters at the same
time, because to do one or the other is contrary to morals and public
order.

“The accused-appellant not being in the
circumstances above set forth, inasmuch as, according to the findings
of the lower court, he was not yet a councilor when he indirectly took
part in the acquisition and possession of said stall of the public
market of Jaro at a public auction, the judgment appealed from should
be reversed.”

It is admitted in the
majority opinion that the accused indirectly took part in the auction
held on December 12, 1934, because Abdon Relevo, the one who served as
a tool, tendered his bid for stall No. 1 in the name and for the
account of said accused. This conclusion is supported by Exhibit A for
the prosecution, admitted by the accused, wherein the latter, being the
signer of the letter, states: “Now the undersigned informs you that on
the day of the auction Mr. Abdon Relevo was only our agent to bid for
said stall and we request the President to desist from compelling Mr.
A. Relevo to comply with any obligation relative to said stall, it
being known by the president that Mr. Abdon Relevo is not the one
occupying said stall but Dionisia Malate.”

However, the
majority opinion acquits the accused solely because it has been proven
that he was not yet a councilor of the municipality of Jaro when he
indirectly tendered his bid for stall No. 1 of the public market of
said town. It is this conclusion that is not supported by the facts
admitted by the parties themselves.

To begin with, I shall
state that the attorney for the defense himself admits the fact that
the accused was a councilor from October 16, 1934. His words are as
follows: “The only issue raised in this appeal from the decision of the
lower court is whether section 2176 in relation to section 2761 is
applicable to the following uncontroverted facts: That the herein
accused, Prudencio Fevidal, was a municipal councilor of Jaro, Leyte,
since October 16, 1934, up to and during the period alleged in the
information: * * *.” The court, in its conclusions of facts, states
that the accused was a councilor during the entire period of time
alleged in the information. In the information, the violations are made
to consist not only in the fact that the accused indirectly tendered
his bid at the auction held on December 12, 1934, but also in the
circumstance of having been occupying said stall up to February 20,
1936. The defenses set up by the attorney for the defense consisted
merely in that the municipality was not authorized by law to lease the
market stalls by means of public auction and that the bid offered by
the accused was not perfected because it does not appear that the
municipality has ever accepted it. The defense never discussed nor
questioned the indisputable fact that the accused qualified as
councilor on October 16, 1934.

It seems that what gave rise
to the conclusion of fact in question is the following statement of the
court appearing on page 5 of the brief for the defense: “that the
public bid for the occupation of said market stall No. 1 was held on
December 3, 1934, in accordance with the municipal ordinance No. 7,
series of 1933, while the defendant was not yet a member of the
municipal council of Jaro, * * *.” The last phrase: “while the
defendant was not yet a member of the municipal council of Jaro” seems
to have been interpreted as referring to December 3, 1934, when in fact
it refers to the year 1933 when ordinance No. 7 was approved. The
following transcript of the stenographic notes explains what the court
meant in said part of its judgment:

“Mr. Ribo:

“That
the call for bid conducted on December 3, 1934, was made pursuant to
Ordinance No. 7, series of 1933, approved December 3, 1933, when the
accused was not yet a municipal councilor; and that, previous to his
election as municipal councilor of Jaro, Leyte, the accused Prudencio
Fevidal has already been occupying a stall in the public market of
Jaro, Leyte.

“Fiscal Saavedra:

“Admitted also. * * *”

(Page 4 of the transcript of stenographic notes.)

The foregoing transcript clearly explains that the court referred to
the year of the approval of ordinance No. 7 when it stated in its
judgment that the accused was not yet a member of the municipal council
of Jaro.

I am of the opinion that under the facts admitted
by the accused during the trial of the case, including those contained
in Exhibits A, B and C, he is guilty of the violation of law imputed to
him (U. S. vs. Udarbe, 28 Phil., 382; U. S. vs. Delgado,
36 Phil., 824). However, for the reasons stated by the
Solicitor-General in his brief, I agree with said official that this is
one of the cases in which the reduction of the penalty or the pardon of
the accused should be recommended to the Chief Executive.