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[GREGORIO REMATA v. JUAN JAVIER](http://lawyerly.ph/juris/view/cc11?user=fbGU2WFpmaitMVEVGZ2lBVW5xZ2RVdz09)
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[ GR No. 12354, Feb 04, 1918 ]

GREGORIO REMATA v. JUAN JAVIER +

DECISION

G.R. No. 12354

[ G.R. No. 12354, February 04, 1918 ]

GREGORIO REMATA, PETITIONER, VS. JUAN JAVIER AND GENEROSO DE GALA, RESPONDENTS.

D E C I S I O N

CARSON, J.:

This is an original action brought in this court under authority of sections 197, 201, 202, and 519 of the Code of Civil Procedure by reason of the alleged usurpation of a public civil office.

The facts upon which the petitioner relied for relief as against the original respondent Juan Javier are set out at length in our judgment on the demurrer to the original petition filed March 17, 1917.[1] Upon that demurrer we held that the original respondent, Juan Javier, was unlawfully in possession of the office of municipal president of the Municipality of Candelaria, Tayabas, and that the petitioner Remata was lawfully entitled to that office. This judgment was based upon our ruling that it appearing that at the general elections, held on June 6, 1916, no one was legally elected president of that municipality, and that the petitioner had been lawfully elected vice-president, he was entitled to the office of president, under the provisions of section 2126 of the Administrative Code of 1916, the law in force at the time when the elections were held.

A short time prior to the entry of that judgment, section 2126 of the Administrative Code was amended by the enactment of Act No. 2707 of the Philippine Legislature, which is as follows:

"AN ACT TO AMEND SECTION TWENTY-ONE HUNDRED AND TWENTY-SIX OF THE ADMINISTRATIVE CODE, PROVIDING HOW ELECTIVE MUNICIPAL OFFICES SHALL BE FILLED WHEN VACANT OR WHEN THERE IS NO SUCCESSOR.

"Be it enacted by the Senate and House of Representatives of the Philippines in Legislature assembled and by the authority of the same:

"Section 1. Section twenty-one hundred and twenty-six of the Administrative Code is hereby amended to read as follows:

" 'Sec. 2126. Vacancies in municipal office. (a) In case of a temporary vacancy in any municipal office, the same shall be filled by appointment by the provincial governor, with the consent of the provincial board.

" '(b) In case of a permanent vacancy in any municipal office, the same shall be filled by appointment by the provincial board, except in case of a municipal president, in which the permanent vacancy shall be filled by the municipal vice-president.

" ' (c) In case of the failure of an election for any municipal office, or when the officer elect declines to qualify or dies before qualifying, or there is no successor for any other reason, such successor shall, in the discretion of the Secretary of the Interior, be appointed by the provincial board or elected at a special election convened by the Governor-General the same as other special elections.'

"Sec. 2. This. Act shall take effect in so far as the same is applicable to the general election held on June sixth, nineteen hundred and sixteen.

"Sec. 3. This Act shall take effect on its approval.

"Effective March 11, 1917."

Pending further proceedings upon our judgment on the demurrer to the original petition, the petitioner was permitted to file a supplemental petition making Generoso de Gala a party respondent, and alleging that under color of authority conferred by subsection (c) of section 1 of Act No. 2707, the Provincial Board of Tayabas, with the approval of the Secretary of the Interior, appointed De Gala municipal president of the Municipality of Candelaria; that the original respondent had turned the office over to De Gala; and that De Gala is unlawfully in possession of the office.

The case is now before us upon De Gala's demurrer to the supplemental petition.

Citing and relying upon the various arguments set forth by Justice Moreland in support of his dissent from our ruling upon the demurrer to the original petition, counsel for De Gala urges us to reverse our former ruling as to the construction which should be placed upon section 2126 of the Administrative Code of 1916, and to give it the same meaning and effect before amendment as it undoubtedly has since its amendment by the enactment of Act No. 2707. But all arguments and contentions advanced in the dissenting opinion filed with our former ruling were maturely considered and rejected when this question was raised upon the demurrer to the original petition, and we are of opinion that it should not be reopened and must be deemed to have been definitely settled by our rulings on that occasion.

It follows that the only real question before us at this time is whether the enactment of Act No. 2707, amending section 2126 of the Administrative Code of 1916, had the effect of depriving the petitioner of the right to the office, which, as we held in our former ruling, he had acquired under the terms of that section prior to its amendment, by virtue of his election as vice-president, and the judicial declaration in an election contest of a failure of election for the office of municipal president at the general elections held June 6, 1916.

Act No. 2707 became effective March 11, 1917, long after the election of June 6, 1916. Under well-settled principles of construction, its provisions should not be given a retroactive effect except in so far as the intention of the legislator so to do is made apparent by its express terms or by necessary implication.

Section 2 of the Act expressly provides that it "shall take (have) effect in so far as the same is applicable to the general election held on June 6, 1916." The purpose of the statute, both before and after its amendment, is to provide a method for the filling of vacancies in municipal offices. None of its provisions become applicable until and unless there is a vacancy in a municipal office. Neither the original nor the amended statute purports to deprive any one of an office, or a right to an office lawfully acquired prior to its enactment. Section 2 of the statute must not therefore be understood as authorizing the ousting from office of any one who had lawfully become entitled thereto at or as a result of the general election of June 6, 1916. It goes no further than to provide that any municipal office (including those for which an election was held at the general elections in June, 1916), which is found vacant must be filled in accordance with its terms. Thus, if as a result of an election contest, pending at the time the statute was enacted, the court, wherein the contest is heard, should thereafter declare that there had been a failure of an election for any municipal office, the vacancy thus created must be filled in accordance with the provisions of the amended statute. And in like manner, its terms would be applicable in filling any municipal office if the officer elected at the general elections in 1916 declined to qualify or died before qualifying, and a successor had not yet been appointed when the amended statute became effective. But we are satisfied that the statute as amended could have no application to a case wherein such a vacancy had already been filled by appointment or otherwise at the time when the amended statute became effective. In that event, there would be no vacancy upon which the provisions of the amended statute could operate. The discretion of the Secretary of the Interior to authorize the filling of a municipal office by appointment or election may be exercised only in the event that there is a vacancy in such office; and if some person has lawfully acquired a right thereto there is no such vacancy therein as would justify the Secretary of the Interior in exercising his discretion to fill it by appointment or election.

There was no vacancy in the office of the municipal president of Candelaria at the time when Act No. 2707 became effective, nor has any occurred since that date (March 11, 1917). Under the law in force prior to the enactment of the amending statute, the petitioner had already acquired the right to the office, and stood ready and still stands ready to perform the duties of the office. The mere fact that he was excluded unlawfully from an office to which he was lawfully entitled did not have the effect of creating a vacancy in that office, so long as he did not decline to qualify and stood ready to perform the duties of the office.

It follows that assuming the truth and accuracy of the averment in the amended petition, the appointment of the respondent De Gala to the office of municipal president of Candelaria was not authorized under the provisions of Act No. 2707; that he must, therefore, be held to be unlawfully in possession of that office; and that the petitioner is entitled to have him ousted therefrom and to take possession of the office from which he is wrongfully excluded.

We must not be understood as questioning the power of the legislator to abrogate or to modify the mode by which Vacancies in municipal offices may be filled; or to provide for the vacating of all such offices and the filling of such vacancies by election or otherwise; or in its discretion to do away with such offices altogether, and thus to legislate all municipal officers out of office, without regard to the mode by which they had acquired them. Our ruling is not that the legislator did not have the power to oust from office municipal officers elected at the general elections in 1916, but that he did not do so by the enactment of Act No. 2707, which provides merely for the filling and not for the creation of vacancies in such offices.

We conclude that the demurrer to the amended petition should be overruled, and that unless an answer is filed within ten days (which we do not anticipate, as there is no real dispute as to the facts), judgment should be entered declaring the petitioner to be lawfully entitled to the office of municipal president of Candelaria, and the respondent De Gala to be unlawfully in possession of the same, with the costs of these proceedings against the latter.

We assume that after the promulgation of our rulings as to the respective rights of the parties, the office in question will be promptly surrendered to the petitioner upon demand, and we shall not, for the present, make any provision for the forcible ouster of the respondent therefrom; but in the event that our anticipations are not verified in this regard, the petitioner is expressly authorized to make application for such further orders and relief as may be necessary to secure his rights in the premises.

Arellano, C. J., Torres, Street, and Malcolm, JJ., concur.

Johnson, J., reserves his vote.


[1] Remata vs. Javier, 36 Phil. Rep., 483.


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