TOMAS N. JOSON III, PETITIONER, VS. NARCISO S. NARIO, LUIS T. SANTOS, IN HIS CAPACITY AS SECRETARY OF LOCAL GOVERNMENTS, AND SENDON O. DELIZO, IN HIS CAPACITY AS JUDGE OF THE RE…

Whether or not the office of Vice-Governor of Nueva
Ecija was rendered vacant by the voluntary
resignation of the person duly elected thereto during the 1988 local elections,
is the principal issue involved in this special civil action of certiorari.  The
position is now contested by said Vice-Governor, Narciso
Nario — who withdrew his resignation a few days
after tendering it — and the petitioner Tomas Joson
III, the Sangguniang Panlalawigan member who obtained the highest
number of votes in the same local elections of 1988,
and who, upon Nario’s resignation, assumed the
position of Vice-Governor.

The controversy originated from the indefinite sick leave that
the incumbent Governor of Nueva Ecija,
Eduardo L. Joson, had to take on December 7, 1989, thus creating a temporary
vacancy in his Office.  As Vice-Governor,
Nario took over as Acting Governor pursuant to the
Local Government Code (B.P. Blg. 337).^[1]
But as fate would have it, Nario himself fell ill
shortly afterwards, and so executed a “waiver” of his
“right” to the office of Governor reading as follows:^[2]

“December 18, 1989

Effective December 19, 1989, I hereby expressly waive my right to
assume the position of Acting Governor of Nueva Ecija in favor of Senior Board Member Tomas N. Joson III.

s/t/
NARCISO S. NARIO

Vice Governor.”

Joson forthwith took his oath as Acting
Governor, on December 19, 1989.^[3]

Four (4) days later, apparently feeling that his illness had
worsened, Nario sent a letter to the Secretary of
Local Governments tendering his resignation as Vice-Governor of Nueva Ecija.^[4]His
letter reads as follows:

”December 22, 1989

Hon. Luis T. Santos

* * * *

(Thru Hon. Tomas N. Joson III,

Acting Governor of Nueva Ecija

City of Cabanatuan)

Sir:

For reasons of poor health, I hereby respectfully tender my
voluntary resignation as Vice-Governor of Nueva Ecija effective after the close of office hours today, December 22, 1989.

Very truly yours,

s/t/
NARCISO S. NARIO

Vice Governor.”

The following day, Acting Governor Joson
took his oath of office as Vice-Governor of Nueva Ecija.^[5]
Then on December 26, 1989,
he sent an official communication (a 1st indorsement)
to Secretary Santos:  (a) forwarding the
resignation of Vice-Governor Nario, and (b) advising
of his assumption of the office of Vice?Governor “pursuant to the
provisions of Section 49 (1) of Batas Pambansa Blg. 337.”^[6]

Having in the meantime discovered, after undergoing further
medical examination, that his illness was not as serious as originally feared,
and having thus been convinced of his physical fitness to resume work, Nario wrote to Secretary Santos on January 2, 1990,
withdrawing his “Letters of resignation as Vice Governor of Nueva Ecija and waiver as Acting
Governor,” and requesting that they be considered “as without legal
force and effect.”^[7]
Secretary Santos acted promptly on Nario’s
letter.  On January 3, 1990, he sent Nario
two (2) communications.  The first,^[8]
after noting the contents of Nario’s letter of January 2, 1990, advised him that –

” * * for all legal intents and
purposes, we consider you as the Vice Governor of the Province of Nueva Ecija, and as such, you
shall discharge the powers, duties and functions appurtenant thereto and such
other as may be prescribed by law.”

The second contained the following
designation and directive:^[9]

“In view of the temporary incapacity
of the Provincial Governor of Nueva Ecija, Hon. Eduardo L. Joson, on account of physical cause, pursuant to the provisions of
Section 52 of the Local Government Code (BP Blg.
337), you, as vice governor, are hereby designated as acting provincial
governor of Nueva Ecija
and, as such, shall exercise the powers, duties and functions of the office
during the period prescribed by law.”

On the same day, January
3, 1990, Nario took his oath as Acting
Provincial Governor before Secretary Santos, after which the latter wrote a
third letter, this time addressed to petitioner Joson
as “First Sangguniang Panlalawigan
Member.“^[10]
The letter reads as follows:

“In view of the assumption of office of Provincial Governor of
Nueva Ecija by
Vice-Governor Narciso S. Nario,
you are hereby directed to cease and desist from discharging any and all
powers, duties and functions appertaining to the office of Provincial
Governor.”

It further appears that on the same day, January 3, 1990, Secretary Santos also sent a
telegram to the Provincial Commander of Nueva Ecija of the following tenor:^[11]

“I HAVE TODAY DESIGNATED VICE GOVERNOR NARCISO NARIO AS ACTING
GOVERNOR OF NUEVA ECIJA DUE TO TEMPORARY INCAPACITY OF GOVERNOR EDUARDO JOSON
AND WOULD APPRECIATE YOUR ASSISTANCE IN
EFFECTING HIS ORDERLY AND PEACEFUL ASSUMPTION OF OFFICE.

THANK YOU.”

Joson reacted by filing with the Regional
Trial Court at Cabanatuan City, on January 4, 1990, a
petition for “prohibition and injunction, with prayer for restraining
order — docketed as Civil Case No. 746-AF.^[12]
He succeeded in obtaining on the same day a “status quo order” from the Executive Judge,
Hon. Sendon Delizo.^[13]
Hearing was set on January 12, 1990.  Oppositions were presented in due course by
the Solicitor General, in representation of Secretary Luis T. Santos,^[14]
and by the lawyers of Acting Governor Nario.^[15]
Thereafter, and after conducting a hearing on January 12, 1990 as scheduled,^[16]
Judge Delizo rendered judgment on January 15, 1990, dismissing Joson’s petition and lifting the temporary restraining
order issued earlier.^[17]

In his Decision, His Honor, citing Punsalan v. Mendoza, 140
SCRA 153, ruled that “(i)n our jurisdiction
acceptance is necessary for resignation of public office to be operative and
effective, otherwise, the officer is subject to penal provisions of Art. 238 of
the Revised Penal Code;” and, invoking Rosales
v. Court of Appeals, 165 SCRA 344, further declared that
“petitioner (Joson) in instituting the present
action had deviated (from) the doctrine of exhaustion of administrative
remedies, thereby rendered (rendering) this action pre-mature.”

On January 17, 1990,
Joson filed with this Court a petition for review on certiorari
basically praying for judgment –

1) reversing the decision of respondent
Judge dated January 15, 1990;

2) declaring illegal and without force and
effect, Nario’s withdrawal of his voluntary
resignation and sustaining Joson’s assumption of the
positions of Vice-Governor and Acting Governor of Nueva
Ecija;

3) declaring null and void the designation of Nario
as Acting Governor of Nueva Ecija
made by Secretary Santos on January 3, 1990.

The petitioner would have this Court adopt his theory that
“since the Local Government Code does not provide as to when the voluntary
resignations of Vice-Governors shall become effective” -? unlike the case of a sanggunian member
whose resignation takes effect and operates as a vacation of his position only
upon acceptance of the resignation “by the sanggunian concerned” — ­Nario’s
resignation “should be construed to be effective on the date specified in
the resignation, without need of acceptance.”^[18]
He adverts to the omission of the Rules and Regulations Implementing the Local
Government Code to “provide the mechanism for the resignation of a
Vice-Governor,” attributing this “to the fact that the Code clearly
provides for succession in case of resignation (of a vice-governor),”
i.e., “the member of the Sangguniang Panlalawigan who obtained the largest number of
votes in the last elections shall ipso jure succeed to the office of the Vice-Governor,” a clear
indication, in his view, that acceptance of the latter’s resignation “is
no longer necessary.” Petitioner further claims that Nario’s
acts, coupled with his awareness of the assumption by Joson
of the office of Vice-Governor, clearly establish “his intention to
totally abandon said office,” and constitute an “absolute
relinquishment” thereof.^[19]

The petitioner also submits that his case falls within one of the
exceptions to the rule on exhaustion of administrative remedies, i.e., it
involves “a purely legal question.”

The decided weight of authority is that “apart from legal
provision, * * mere presentation of resignation does not work a vacancy, and a
resignation is not complete until accepted by proper authority; “^[20] “ * * and until acceptance by
proper authority, the tender or offer to resign is revocable,” unless
otherwise provided by statute.”^[21]
This is not to say that a public officer may not resign.  Mechem says that he
“‘may certainly resign, but without acceptance his resignation is nothing, and
he remains in office.’ He is, therefore, so far as the rights of third persons
are concerned, not only still clothed with authority, but is subject to the
burdens of the office, and he may be compelled to perform the duties, and is
liable for their non-performance, as before.”^[22]

The rule rests on “the obvious dictates of public
policy,” Mechem states, stressing that –^[23]

” * * ‘As civil officers are appointed for the purpose of
exercising the functions and carrying on the operations of the government, and
maintaining public order, a political organization would seem to be imperfect
which should allow the depositories of its power to throw off their
responsibilities at their own pleasure. 
This certainly was not the doctrine of the common law.  In England,
a person elected to a municipal office was obliged to accept it and perform its
duties, and be subjected himself to a penalty by refusal.  An office was regarded as a burden which the
appointee was bound, in the interest of the community and of good government,
to bear.  And from this it followed of
course that, after an office was conferred and assumed, it could not be laid
down without the consent of the appointing
power.

So it is said by Chief Justice Ruffin of North
Carolina, ‘It is not true that an office is held at
will of either party.  It is held at the
will of both.* * The public has a right to the
services of all citizens, and may demand them in all civil departments as well
as in the military.  Hence, there are on our statute books several
acts to compel men to service in offices.  Every man is obliged, upon a general
principle, after entering his office, to discharge the duties of it while he
continues in office, and he can not lay it down until the public, or those to
whom authority is confided, are satisfied
that the office is in a proper state to be left, and the officer discharged.’
“

“In our jurisprudence,” this Court has held,
“acceptance is necessary for resignation of a public officer to be
operative and effective, otherwise the officer is subject to the penal provisions
of Article 238 of the Revised Penal Code which states that:

‘ART. 238. Abandonment of
office or position. – Any public officer who,
before the acceptance of his resignation shall abandon his office to the
detriment of the public service shall suffer the penalty of arresto mayor.

‘If such office shall have been abandoned in order to evade the
discharge of duties of preventing, prosecuting, or punishing any of the crimes
falling within Title One and Chapter One of Title Three of Book Two of this
code, the offender shall be punished by prision correctional in its
minimum or medium periods, and by arresto mayor if the
purpose of abandonment is to evade the duty of preventing, prosecuting or
punishing any other crime.’

“Clearly, a public
officer cannot abandon his office or position before his resignation is
accepted, but the incumbent official would not be in a position to determine
the acceptance of his resignation unless he has been duly notified
therefor.  It
must be noted that respondent Court of Appeals underscored the undeniable fact
that while the President’s letter of acceptance was dated October 6, 1972, it was completely processed only
on October 20, 1972 and
officially received by Judge Ruiz on October
21, 1972.  Thus, respondent
Court’s holding that even if there were strict interpretation as to when Judge
Ruiz ceased to be a member of the Judiciary although petitioners maintain that
the date of his cessation from office is October 6, 1972, still, his acts
before the official notification of acceptance of his resignation are those of
a de
facto officer, and therefore, valid, is correct.”^[24]

In another case, this Court affirmed the same doctrine, commented
on by Mechem and others, supra, that
“without acceptance ** (an officer’s) resignation is nothing, and he
remains in office; * * (and that) “as far as the rights of third persons
are concerned, not only (is he) still clothed with authority, but (he) is
subject to the burdens of the office, ** may be compelled to perform the
duties, and is liable for their non-performance * * .” In Punsalan v. Mendoza, supra, the Court held implicitly but no less clearly that the effectivity of a public official’s resignation depends not
on such much on its terms, e.g., “effective at the pleasure of the President,” or at a
particular time or on the happening of a particular contingency, but as a legal
proposition, on acceptance thereof by the proper authority.  For, quite obviously, such appropriate
authority can disregard the terms of the official’s resignation, and as easily
reject it as accept it; and obviously, too, “(a)bandonment
by the incumbent of his office before acceptance of his resignation is
punishable under the Revised Penal Code.”

The respondent Judge was thus correct in refusing to issue the
writ of prohibition sued for by petitioner Joson.  It was not within the power of respondent Nario to dictate the time of the effectiveness of his
resignation, or otherwise impose conditions thereon. That was the prerogative
of the Secretary of Local Governments, as
the proper authority to act thereon.  It
was well within the Secretary’s power and discretion to accept or reject the
resignation.  Nario
therefore continued as Vice-Governor despite his tender of resignation and despite his absence from office for a
few days on account of sickness.  Never
having lost the office of Vice-Governor, it was also lawful and logical for him
to assume the position of Acting Governor, temporarily vacant due to the
infirmity of the incumbent, as he eventually did on instructions of the
Secretary of Local Governments.

The conclusion thus reached makes unnecessary the Court’s ruling
on any other point.

WHEREFORE, the petition for review on certiorari is DENIED, and the judgment thereby
challenged is AFFIRMED, with costs against the petitioner.

IT IS SO
ORDERED.

Fernan, C.J., Melencio-Herrera,
Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Cortes, Griño-Aquino, Medialdea, and Regalado, JJ., concur.

^[1]
Rollo, pp. 3, 85, 124

^[2]
Id., pp. 3-4, 30, 85, 125

^[3]
Id., pp. 4, 85, 125

^[4]
Id., pp. 4, 32, 85, 125

^[5]
Id., pp. 4, 33, 86

^[6]
Id., pp. 4-5, 34

^[7]
Id., pp. 5, 56, 86,
125-126

^[8]
Id., p. 57

^[9]
Id., pp. 5, 58, 126

^[10]
Id., pp. 5-6, 86-87, 126.
N.B. Joson claims that the letter “has not yet
been received” by him as of date of his petition.

^[11]
Id., pp. 6, 35

^[12]
Id., pp. 7, 24-29, 126-127

^[13]
Id., pp. 6-7, 36

^[14]
Id., pp. 7, 37-45

^[15]
Id., pp. 7, 46-55, 87

^[16]
And the filing of memorandum by petitioner (Rollo,
pp. 61-69)

^[17]
Rollo, pp. 7, 18-23, 87

^[18]
Id., p. 11

^[19]
Id., pp. 11-12

^[20]
McQuillin, E., The Law of Municipal Corporations, 3rd Ed., 1949, vol. 3, p. 443

^[21]
Dillon, JF., Commentaries on the Law of Municipal
Corporations, Vol. 1, pp. 723, 1911

^[22]
Mechem, F., A
Treatise on the Law of Public Offices and Officers (1889), 263-264, citing Chief Justice Ruffin

^[23]
Mechem, F., op
cit., pp. 261-262 inter alia citing “Mr. Justice Bradley of
the Supreme Court of the United States”

^[24]
Gamboa v. Court of Appeals, 108 SCRA 1