Facts:
In 1988, the DILG Secretary Luis Santos designated Vice-Governor
Leopoldo E. Petilla as Acting Governor of Leyte in view of the fact that no
Governor had been proclaimed in the province of Leyte.
Subsequently, Santos also designated Aurelio D. Menzon, a senior
member of the Sangguniang Panlalawigan to act as the Vice-Governor for the
province of Leyte. Menzon then took his oath of office.
In 1989, the provincial administrator inquired from DILG Undersecretary
Jacinto T. Rubillar, Jr., as to the legality of the appointment of Menzon to
act as the Vice-Governor of Leyte.
Rubillar, Jr. replied that since B.P. 337 has no provision
relating to succession in the Office of the Vice-Governor in case of a
temporary vacancy, the appointment of Menzon as the temporary Vice- Governor is
not necessary since the Vice-Governor who is temporarily performing the
functions of the Governor, could concurrently assume the functions of both
offices.
As a result of the foregoing, the Sangguniang Panlalawigan issued
Resolution No. 505 where it invalidated the appointment of Menzon as acting
Vice-Governor of Leyte.
Menzon then wrote to Undersecretary Rubillar to clarify the
opinion that the latter issued. Rubillar replied that Menzon was merely
designated to act as vice governor. He was not appointed to the post since
there was no vacancy of the office to speak of.
As a result of this clarificatory letter, the DILG Regional
Director requested Governor Petilla that the resolution issued by the
Sanggunian be modified so that Menzon would be able receive his salary as vice
governor, if he was deprived of such. However, Petilla and the Sanggunian
refused to correct Resolution 505 and correspondingly to pay the petitioner the
emoluments attached to the Office of Vice-Governor.
It was at this instance that Menzon decided to file this petition
to determine whether he is entitled to the emoluments for his services rendered
as designated acting vice‐governor.
During the pendency of this case, the issue on the governorship of Leyte was
settled and Adelina Larrazabal was proclaimed Governor of Leyte.
Issue: Whether
or not there was a vacancy
Held: Yes. The law on Public Officers is clear on the matter.
There is no vacancy whenever the office is occupied by a legally qualified
incumbent. A sensu contrario, there is a vacancy when there is no person
lawfully authorized to assume and exercise at present the duties of the office.
In this case, it can be readily seen that the office of the
Vice-Governor was left vacant when the duly elected Vice-Governor Leopoldo
Petilla was appointed Acting Governor. In the eyes of the law, the office to
which he was elected was left barren of a legally qualified person to exercise
the duties of the office of the Vice-Governor.
There is no showing that Leopoldo Petilla continued to
simultaneously exercise the duties of the Vice-Governor. The nature of the
duties of a Provincial Governor call for a full-time occupant to discharge
them. More so when the vacancy is for an extended period. Precisely, it was
Petilla's automatic assumption to the acting Governorship that resulted in the
vacancy in the office of the Vice-Governor. The fact that the Secretary of
Local Government was prompted to appoint the petitioner shows the need to fill
up the position during the period it was vacant. The Department Secretary had
the discretion to ascertain whether or not the Provincial Governor should
devote all his time to that particular office. Moreover, it is doubtful if the
Provincial Board, unilaterally acting, may revoke an appointment made by a
higher authority.
Issue: Whether
or not the Secretary of Local Government has the authority to make temporary
appointments
Held: The Local Government Code is silent on the mode of succession in
the event of a temporary vacancy in the Office of the Vice-Governor. However,
the silence of the law must not be understood to convey that a remedy in law is
wanting.
The circumstances of the case reveal that there is indeed a
necessity for the appointment of an acting Vice-Governor. For about two years
after the governatorial elections, there had been no de jure permanent Governor
for the province of Leyte, Governor Adelina Larrazabal, at that time, had not
yet been proclaimed due to a pending election case before the Commission on
Elections.
The two-year interregnum which would result from the respondents'
view of the law is disfavored as it would cause disruptions and delays in the
delivery of basic services to the people and in the proper management of the
affairs of the local government of Leyte. Definitely, it is incomprehensible
that to leave the situation without affording any remedy was ever intended by
the Local Government Code.
Under the circumstances of this case and considering the silence
of the Local Government Code, the Court rules that, in order to obviate the
dilemma resulting from an interregnum created by the vacancy, the President,
acting through her alter ego, the Secretary of Local Government, may remedy the
situation. We declare valid the temporary appointment extended to the
petitioner to act as the Vice-Governor. The exigencies of public service
demanded nothing less than the immediate appointment of an acting
Vice-Governor.
The records show that it was primarily for this contingency that
Undersecretary Jacinto Rubillar corrected and reconsidered his previous
position and acknowledged the need for an acting Vice-Governor.
It may be noted that under Commonwealth Act No. 588 and the
Revised Administrative Code of 1987, the President is empowered to make
temporary appointments in certain public offices, in case of any vacancy that
may occur. Albeit both laws deal only with the filling of vacancies in
appointive positions. However, in the absence of any contrary provision in the
Local Government Code and in the best interest of public service, we see no
cogent reason why the procedure thus outlined by the two laws may not be
similarly applied in the present case. The respondents contend that the
provincial board is the correct appointing power. This argument has no merit.
As between the President who has supervision over local governments as provided
by law and the members of the board who are junior to the vice-governor, we
have no problem ruling in favor of the President, until the law provides
otherwise.
A vacancy creates an anomalous situation and finds no approbation
under the law for it deprives the constituents of their right of representation
and governance in their own local government.
In a republican form of government, the majority rules through
their chosen few, and if one of them is incapacitated or absent, etc., the
management of governmental affairs to that extent, may be hampered. Necessarily,
there will be a consequent delay in the delivery of basic services to the
people of Leyte if the Governor or the Vice-Governor is missing.
Whether or not the absence of a Vice-Governor would main or
prejudice the province of Leyte, is for higher officials to decide or, in
proper cases, for the judiciary to adjudicate. As shown in this case where for
about two years there was only an acting Governor steering the leadership of
the province of Leyte, the urgency of filling the vacancy in the Office of the
Vice-Governor to free the hands of the acting Governor to handle provincial
problems and to serve as the buffer in case something might happen to the
acting Governor becomes unquestionable. We do not have to dwell ourselves into
the fact that nothing happened to acting Governor Petilla during the two-year
period. The contingency of having simultaneous vacancies in both offices cannot
just be set aside. It was best for Leyte to have a full-time Governor and an
acting Vice-Governor. Service to the public is the primary concern of those in
the government. It is a continuous duty unbridled by any political
considerations.
The appointment of the petitioner, moreover, is in full accord
with the intent behind the Local Government Code. There is no question that
Section 49 in connection with Section 52 of the Local Government Code shows
clearly the intent to provide for continuity in the performance of the duties
of the Vice-Governor.
The Local Government Code provides for the mode of succession in
case of a permanent vacancy, viz:
Section 49:
In case a permanent vacancy arises when a
Vice-Governor assumes the Office of the Governor, . . . refuses to assume
office, fails to qualify, dies, is removed from office, voluntary resigns or is
otherwise permanently incapacitated to discharge the functions of his office the
sangguniang panlalawigan member who obtained the highest number of votes in the
election immediately preceding, . . . shall assume the office for the unexpired
term of the Vice-Governor. . . .
By virtue of the surroundings circumstance of this case, the
mode of succession provided for permanent vacancies may likewise be observed in
case of a temporary vacancy in the same office. In this case, there was a
need to fill the vacancy. The petitioner is himself the member of the
Sangguniang Panlalawigan who obtained the highest number of votes. The
Department Secretary acted correctly in extending the temporary appointment.
Issue: Whether
or not Menzon is entitled to be paid the salary attached to the Office of the
Vice Governor
Held: In view of the foregoing, the petitioner's right to be paid the
salary attached to the Office of the Vice Governor is indubitable. The
compensation, however, to be remunerated to the petitioner, must only be such
additional compensation as, with his existing salary, shall not exceed the
salary authorized by law for the Office of the Vice-Governor.
Even granting that the President, acting through the Secretary of
Local Government, possesses no power to appoint the petitioner, at the very
least, the petitioner is a de facto officer entitled to compensation.
There is no denying that the petitioner assumed the Office of the
Vice-Governor under color of a known appointment. As revealed by the records,
the petitioner was appointed by no less than the alter ego of the President,
the Secretary of Local Government, after which he took his oath of office
before Senator Alberto Romulo in the Office of Department of Local Government
Regional Director Res Salvatierra.
Concededly, the appointment has the color of validity. The
respondents themselves acknowledged the validity of the petitioner's
appointment and dealt with him as such. It was only when the controversial
Resolution No. 505 was passed by the same persons who recognized him as the
acting Vice-Governor that the validity of the appointment of the petitioner was
made an issue and the recognition withdrawn.
The petitioner, for a long period of time, exercised the duties
attached to the Office of the Vice-Governor. He was acclaimed as such by the
people of Leyte. Upon the principle of public policy on which the de facto
doctrine is based and basic considerations of justice, it would be
highly iniquitous to now deny him the salary due him for the services he
actually rendered as the acting Vice-Governor of the province of Leyte. (See
Cantillo v. Arrieta, 61 SCRA 55 [1974])
(G.R. No. 90762, May 20, 1991)
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