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036 de Los Santos v. Mallare

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  036 EDUARDO DE LOS SANTOS v. GIL R. MALLARE, LUIS P. TORRES, in his capacity as City Mayor, PANTALEON PIMENTEL, in his capacity as City Treasurer and RAFAEL USON, in his capacity as City Auditor  G.R. No. L-3881; August 31, 1950 Topic: Appointments to Civil Service; Primary Confidential Ponente: Tuason  Nature: Original action of quo warranto   AUTHOR  : Loi La Chica  NOTES: FACTS : 1.   July 16, 1946 - Eduardo de los Santos was appointed City Engineer of Baguio by the President 2.   COA confirmed him 3.   De Los Santos began to exercise the duties and functions of the position 4.   June 1, 1950 - Gil R. Mallare was extended an ad interim appointment by the President to the same position 5.   June 3 - The Undersecretary of the Department of Public Works and Communications directed Santos to report to the Bureau of Public Works for another assignment. 6.   Santos refused to vacate the office 7.   De Los Santos contends: - Under the Constitution, he cannot be removed against his will and without cause - Article XII of the Constitution, Sec. 4: No officer or employee in the Civil Service shall be removed or suspended except for cause as provided by law. 8.   Mallare answered that the City Engineer of Baguio belongs to the unclassified service.  Lacson vs. Romero (Justice Montemayor)  which ruled that officers or employees in the unclassified as well as those in the classified service are protected by the above-cited provision of the organic law is different from the case at bar: Section 2545 of the Revised Administrative Code, which falls under Chapter 61 entitled City of Baguio, authorizes the Governor General (now the President) to remove at pleasure any of the officers enumerated therein, one of whom is the city engineer. 9.   Appointed Gil R. Mallare as City Engineer (Baguio City) ISSUE : Was De Los Sant os’ removal from the same office legal? NO  Is Sec. 2545 of the Revised Admin Code still in force? See below  The position was in fact declared to be neither primarily confidential, policy-determining, nor highly technical. De Los Santos was adjudged to be entitled to remain in office and Mallare’s appointment was declared ineffective.  This judgment operates not to invalidate Sec. 2545 of the Revised Administrative Code or a part of it so as to need at least eight votes to make effective. What we declare is that the particular provision thereof which gave the Chief Executive  power to remove officers at pleasure has been repealed by the Constitution and ceased to be operative from the time that instrument went into effect. RATIO : Section 2 of Article XVI of the Constitution declares that All laws of the Philippine Islands shall continue in force until the inauguration of the Commonwealth of the Philippines; thereafter, such laws shall remain operative, unless inconsistent with this Constitution , until amended, altered, modified, or repealed by the Congress of the Philippines, . . . . Sec. 2545 of the Revised Administrative Code provides that “He (Governor  -General now President) may remove at  pleasure any of the said appointive officers. It is incompatible with the constitutional inhibition that No officer or employee in the Civil Service shall be removed or suspended except for cause as provided by law. The two provisions are mutually repugnant and absolutely irreconcilable. One in express terms permits what the other in similar terms prohibits. The Constitution leaves it to the Congress to provide for the cause of removal, and it is suggested that the President's  pleasure is itself a cause. The phrase for cause in connection with the removals of public officers has acquired a well-defined concept. It means for reasons which the law and sound public policy recognized as sufficient warrant for removal, that is, legal cause, and not merely causes which the appointing power in the exercise of discretion may deem sufficient. It is implied that officers may not be removed at the mere will of those vested with the power of removal, or without any cause. Moreover, the cause must relate to and affect the administration of the office, and must be restricted to something of a substantial nature directly affecting the rights and interests of the public. (43 Am. Jur., 47, 48.)  ection 1 of this article ordains: A Civil Service embracing all branches and subdivisions of the Government shall be  provided by law. Appointments in the Civil Service, except as those which are policy-determining, primarily confidential or highly technical in nature, shall be made only according to merit and fitness, to be determined as far as practicable by competitive examination. The first clause is a definition of the scope of Civil Service, the men and women which section 4 protects. It seems obvious from that definition that the entire Civil Service is contemplated, except positions which are  policy-determining, primarily confidential or highly technical in nature. The office of city engineer is neither primarily confidential, policy-determining, nor highly technical. The office is not excluded from the merit system and dismissal at pleasure of officers and employees appointed therein is allowed by the Constitution. Every appointment implies confidence, but much more than ordinary confidence is reposed in the occupant of a position that is primarily confidential . The latter phrase denotes not only confidence in the aptitude of the appointee for the duties of the office but primarily close intimacy which insures freedom of intercourse without embarrassment or freedom from misgivings of betrayals of personal trust or confidential matters of state. Nor is the position of city engineer policy- determining. A city engineer does not formulate a method of action for the government or any it’s subdivisions. His job is to execute policy, not to make it. With specific reference to the City Engineer of Baguio, his powers and duties are carefully laid down for him be section 2557 of the Revised Administrative Code and are essentially ministerial in character. A city engineer is not required nor is he supposed to possess a technical skill or training in the supreme or superior degree, which is the sense in which highly technical is, we believe, employed in the Constitution. The duties of a city engineer are eminently administrative in character and could very well be discharged by non-technical men possessing executive ability. A law that has been repealed is as good as if it had never been enacted, and cannot, in the nature of things, contravene or  pretend to contravene constitutional inhibition. Section 2545 of the Revised Administrative Code does not need a positive declaration of nullity by the court to put it out of the way. To all intents and purposes, it is non-existent, outlawed and eliminated from the statute book by the Constitution itself by express mandate before this petitioner was appointed. If the clause of section 2545 which authorized the President to remove officers of the City of Baguio at pleasure had been abrogated when petitioner's appointment was issued, the appointee cannot presumed to have abided by this condition. De Los Santos is entitled to remain in office as City Engineer of Baguio with all the emoluments, rights and privileges appurtenant thereto, until he resigns or is removed for cause. Mallare's appointment is ineffective in so far as it may adversely affect those emoluments, rights and privileges. CASE LAW/ DOCTRINE: Appointment to any of the three classes of positions is terminable at the will of the appointing power, must be deemed a mere obiter  . It has been correctly criticized as misleading. For if these three special positions do not really belong to the Civil Service, the Constitution would not have specifically named them as an exception to the general rule that all appointments must be made on the basis of merit and fitness to be determined by competitive examinations. DISSENTING/CONCURRING OPINION(S) : BENGZON, J., concurring: Sec. 2545 of the Baguio Charter (Administrative Code) has been impliedly repealed by Sec. 22 of Commonwealth Act No. 177 which expressly provides for the first time (following the mandate of the Constitution),that no officer or employee in the civil service shall be removed or suspended except for cause as provided by law. I must decline to go into the matter of alleged conflict with the Constitution, first, because plaintiff is precluded from raising that question (Zandueta vs.  De la Costa, 66 Phil., 615); second, because every law is presumed to be constitutional unless eight Justices of this Court are clearly of a contrary opinion, and third, because that subject need not be inquired into, except when absolutely necessary for the disposition of the controversy. REYES, J.:  I concur in this opinion of Mr. Justice Bengzon.

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Jul 22, 2017
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