This is an  action for mandamus to compel respondent Manuel M. Villanueva, "in his  capacity as Acting Mayor of  the City of Bacolod," to  reinstate petitioners  Jesus Quiatchon, Jose T. Real, Manuel Cabiles  and Alfredo  T. Schwab,  as members  of the  police force of the City  of Bacolod,  as well as to  recover their salaries during the period of their ouster, in addition to moral and exemplary damages.

There  is  no dispute about the  facts,  the case having been  submitted for decision upon an agreed stipulation  of facts.  It appears that Ignacio or Engracio Manguin, Melanio  Quizon, Democrito  Nanta and Bonifacio Ormeo, none of whom is a  civil service eligible, were  temporarily appointed" as members of the  police force of the City  of Bacolod,  on August 30,  1946, March 10,  1952,  March  6, 1952  and August 15, 1951, respectively (Exhibits 1 to 4). Owing to the criminal action filed against them  (Criminal Case  No. 4262 of the Court of First Instance of Negros Occidental,  entitled  "People  vs. Jose  Grandeza"),  these members  of the police force  were, on August  16,  1954, suspended from the service pursuant to section 4 of Republic Act No.  557 (Exhibits  5 and 5-A to  5-C).  Two weeks later, or on August 31,  1954, the then Acting  Mayor  of the City  of Bacolod  addressed to them  identical  communications, the pertinent part of which reads:

"Sir:

In view of tile filing of criminal  case against you by the City Fiscal and of the temporary nature of your appointment which, under the law will in no case exceed three months, and in accordance with the opinion of the Commissioner of Civil Service dated August 18, 1954,  concurred  in by the Assistant Executive Secretary in a 1st Indorsement  dated August 25, 1954, and by the Technical  Assistant Incharge of  Civil Affairs and  Chairman, Provincial, City and Local Governments Division, Malacañang, in a telegram dated August 27, 1954, and in order not to unduly adversely affect public service, I am hereby informing  you of your separation from the service effective on the date  of your suspension.

Very respectfully,

(Sgd.)  JOSE V. CORUÑA

Acting City  Mayor"

(Exhibits 6 and 6-a to 6-c.)

Early in September, 1954, said  Acting City Mayor  appointed petitioners herein, who are  civil service eligibles (Exhibits  A and A-1), as second  (2nd) class patrolmen of said police force, with an annual  compensation  of  P1,50O each, to fill the positions vacated by Manguin, Quizon, Nanta and  Ormeo, as above stated  (Exhibits B and B-1l to B-3), and  soon thereafter, said  petitioners  assumed their respective offices and discharged the duties  thereof.  On or about December  20, 1954, the Court of First Instance of Negros Occidental rendered judgment in the aforementioned criminal case,  acquitting the  defendants therein (Exhibit  8). Thereupon, or on December 21,1954, the then Acting Mayor of the City of Bacolod, Manuel M. Villanueva, removed the petitioners from   their  respective  offices  and  appointed thereto  the aforementioned Engracio Manguin, Melanio Quizon,  Democrito Nanta and Bonifacio  Ormeo  (Exhibit 15), although the  latter still lack civil service qualifications, and  no  administrative investigation had been  conducted, or administrative charges filed, against  said  petitioners. Hence, the present action for mandamus against Manuel M. Villanueva, in  his capacity as Acting Mayor of the City of Bacolod.   After appropriate proceedings, the Court of First Instance of Negros Occidental rendered a decision, the  dispositive part of which reads as follows:

"WHEREFORE, the writ of mandamus prayed for is hereby  granted and judgment rendered ordering  the respondent Acting City Mayor of  Bacolod City, to forthwith reinstate  the petitioners  in their former positions, declaring  the petitioners with the right to collect their  salaries corresponding to the period  from the day they were illegally ousted from their positions, up to  the time when they shall be actually reinstated,  further ordering the respondent to pay the petitioners  out of his personal funds and by way of moral damages the amount ot P5,000 to each of the petitioners, and by way of exemplary damages, the further sum of P2,500  also to each of the petitioners. The  costs  of these proceedings shall be taxed against the respondent." (Original Record, pp. 180-181.)

Manuel M. Villanueva, in Ms  capacity  as  acting Mayor of  the City of Bacolod  and  the City  of Eacolod filed  a "joint notice of  appeal."  However  separate briefs were submitted by Villanueva, "in his capacity  as  Acting Mayor of Bacolod, as well as his  capacity as private individual," and by the City of Bacolod.   The "Brief  for the appellant City  of  Bacolod" is entitled "Jesus Quiatchon, Jose  T. Real, Manuel Cabiles and Alfredo T.  Schwab, Petitioners- Appellees vs.  City of Baeolod,  Appellant,"  whereas, the brief for Villanueva is entitled "Jesus  Quiatchon, Jose  T. Real, Manuel Cabiles and Alfredo T.  Schwab, Petitioners- Appellants vs.  Manuel M. Villanueva,  Respondent-Appellant."

Meanwhile, petitioner  Alfredo T.  Schwab  died and  was substituted, as petitioner-appellee, by  Ms  widow, Anunciacion Flores Schwab and their four  (4)  minor children, Mary  Cathy,  Marie  Ingrid, Alfredo Jr. and Maria Jugie, all  surnamed  Schwab.

Appellants maintain: (1) that the appointments of petitioners herein, as members of the police force of the. City of Bacolod, were  illegal,  for pursuant to  Executive Order No. 175, series  of 1938, of the. Office of the President, "in no  case shall the position of a suspended  policeman *  * *' be  filled without previous authority from  the President of the Philippines;"  (2)  that  although  petitioners  herein were given permanent appointments, the same merely had a temporary or provisional nature, said petitioners having failed to file competent proof of their  physcial fitness;  (3) that, having been acquitted in the criminal case instituted against them, Engraeio Manguin, Melanio Quizon, Democrito Nanta and Bonifacio Ormeo, who had been suspended upon the institution of said case, were entitled, as a matter of right, to reinstatement to their former positions; and (4) that, pursuant to section 5, of the  Charter of the  City of Bacolod, the same is exempt from any liability for damages arising from the acts of its officers.

Executive Order No. 175,  series of 1938  refers to the position of a "suspended" policeman and, hence, it is inapplicable to the case at bar,  for petitioners' predecessors in office were not merely suspended, but, also, removed from their respective offices.  The right of the Mayor of Baeolod to make such removal is indubitable, it being  admitted that the officers removed had merely "temporary"  appointments and were, and still are, not civil service eligibles.   Indeed, said temporary appointments were authorized by the Commissioner of Civil Service "under section 682 of the Revised Administrative Code to continue  only until replaced by an eligible but not beyond thirty (30)  days from the date of receipt of  the certificate of eligibility."  What is more, said removal was  made in accordance with an opinion of the Commissioner  of  Civil Service dated August 18, 1954, concurred  in  by  the  Assistant  Executive  Secretary  on August 25, 1954, and  by the Technical Assistant Incharge of Civil Affairs and Chairman  of the Provincial, City and Local  Governments Division, Malacañang, in  a telegram dated August 27, 1954  (Exhibits 6 and 6-A to 6-C).  Thus, regardless  of the  authority of the President to limit, by virtue of  said Executive  Order No.  175,  the power of municipal or city mayors, to  make valid appointments on which  we need not, and  do not,  express any opinion the removal  above referred to, and  the appointment of petitioners herein, have been, in effect approved by the Office of the  President.   In fact, the latter, in a 5th Indorsement, to the  Mayor of Bacolod City, dated November 4, 1954 in conformity with the views expressed by the Commissioner of Civil Service, in  a 4th Indorsement dated October  11, 1954 requested, the reinstatement  of  several members of the police  force  of  Bacolod,  as  of February  11,  1952 including petitioners herein, Jesus  Quiatchon and Jose T. Real who had been separated from the service, without the notice  and hearing provided  for in  Republic Act No. 557, despite their civil service eligibility, and replaced  by non-eligibles.

Appellants'  second argument assumes  that the appointments in favor of petitioners herein, though purporting to be permanent in  nature, did not acquire said  status and were merely temporary in character, said petitioners having failed to submit competent proof  of their physical  fitness. The argument is based, however, upon a predicate which has not been  established.  This  case  was submitted  for decision upon an agreed stipulation of facts, which is silent on whether said  proof of physical fitness of  petitioners herein had  been submitted or not.  Inasmuch as  their appointments  are in terms permanent in character, it must be assumed that everything necessary to give such effect thereto  has been complied with, it being presumed  "that the ordinary course of business has been followed" and "that the law has been obeyed"  (Rule  128,  section 69 [q] and [ee], Rules  of Court.   Proof to the contrary, if any, was incumbent upon respondent-appellant,  who should not  be allowed, therefore, to profit by his own omission.  In fact, there are strong indications that such proof does not exist, for: (1) the order of removal of petitioners herein (Exhibit  15) made no reference  thereto,  despite the  efforts exerted therein to justify said removal;  and (2) Exhibits B and B-1  to  B-3 specifically state that the appointments  of herein petitioners were in the nature of  "reinstatement", thus showing clearly  that they had already been regular members of the police force of the  City  of  Bacolod and complied with all the prerequisites to the  acquisition of a permanent status, including the presentation of proof of physical fitness.

The third (3rd) argument advanced by appellant herein assumes that the decision of  acquittal above referred to ordered the reinstatement of the  accused as members of the police force, but this is not a fact.  Again, section 4 of Republic Act No. 557, cited by the  appellants herein granting to a member of the police force, who has been acquitted of the criminal charges against him, the right "to payment of the entire salary he  failed to  receive during his suspension",  refers to policemen who had merely  been "suspended", without being legally dismissed from the service. It does not apply to said defendants in Criminal Case No. 4262 of the Court of First Instance of Negros Occidental, for  they were legally separated from  the service, because, being "temporary" members of  the  police force, without civil service eligibility,  their right to hold office  could  be terminated by the City Mayor, at any time, with or without cause.

What is more,  in view of  their lack of  civil service eligibility  and the  existence  of civil service  eligibles for the  police  force, the  City Mayor  had no choice but  to remove  said accused  policemen, pursuant to the  aforementioned section 682 of the Revised Administrative Code, under which their  temporary appointments had been authorized.   Thus, in Orais vs. Ribo  (93 Phil.,  385, 49 Off. Gaz., 5386,  5392-5393),  we held:

"Petitioners invoke in support of their claim section 682 of the Revised  Administrative Code, as  amended  by Commonwealth  Acts Nos. 177 and 281.  Said section provides:

"Temporary  appointment without  examination and  certification by the Commissioner of Civil Service or his local  representatives shall not be made to a competitive position in  any case, except when the public interests so  require, and then, only  upon the prior authorization of the Commissioner of Civil  Service;  and  any temporary appointment  so  authorized  shall continue  only  for  such period not exceeding: three  months  as may be necessary to make appointment through  certification of eligibles, and in no case shall extend  beyond thirty  days from  receipt  by the  chief of  the bureau or office of the Commissioner's certification of eligibles; * * *.

"Appointments made under the section are temporary, when the public interests to require  and only upon the prior authorization of the commissioner of civil service, not to exceed three months and in no case  shall extend "beyond thirty days from receipt by the chief of the bureau or office of the commissioner's certification of eligible. The fact that the petitioners held the positions for more than three months does not make them  civil service eligibles.  Also  the fact that the acting' commissioner of civil service  authorized their  appointments 'under section  682  of  the Revised  Administrative Code to continue  only until replaced by an eligible'  does not make them eligibles.  The holding of a position by  a temporary  appointee  until replaced by an eligible in disregard of the time limitation of three months is unauthorized and illegal.  The temporary appointment of other non-eligihles to replace those whose term have expired is  not prohibited.  Hence the replacement of Teodulo T. Orais, David Lim, Domingo  Saligo and Eulalio Bernades, who  are non-eligibles, by Isidro Magallanes,  Pedro  Flores, Francisco  Tavera  and  Narciso Ravago,  who are eligibles,  is in accordance with law.  The  replacement of  non-eligibles by non-eligihles  is lawful  under and pursuant to section 682 of the Revised Administrative Code."  (Italics ours.)

This  view was reiterated  in  Pana  vs.  City  Mayor (94 Phil., 103, 50  Off. Gaz., 146, 147-148).   We said therein:

* * * In accordance with  section 682 of the Revised Administrative Code, when  a position in the  classified  service  is filled by one who is not a  qualified civil service eligible, his appointment is limited to the period necessary to enable the  appointing  officer to secure a civil service  eligible, qualified for the position, and  in no  case is such  temporary appointment  for  a  longer  period  than  3  months.  As petitioners herein were not civil service eligibles at the time of their  appointment, and  it docs not appear that they  have since then  qualified for the positions they are holding, their respective appointments were only for periods of 3 months and  not more.

With respect  to the  alleged  exemption  of  the City of Bacolod from any liability for damages, under section 5 of Commonwealth Act 326, suffice it to say that in the City of Bacolod. and Manuel Villanueva vs. Hon. Eduardo D. Enriquez,  supra, p.  644)  between  the  same  parties  to the present appeal, and  involving the  execution of the aforementioned  decision  of  Judge  Enriquez  in  the  case  at bar,  during the  pendency  of this  appeal,  we declaimed:

"It is  true  that section  2 of Rule 39  allows execution  to issue pending appeal.  But such  execution can only be issued against one who is a party to the action and not against one who, not being a party in the case,  has not yet had his day in court  (Tayson and Angeles vs. Ycasiano, et al., G. R; No: L-2283, May 31,  1949; Manza vs. Santiago, etc., .G.  R. No.  L-7830, April  30,  1955; An      vs Gorospe,  et  al., G.  R. L-9230, April  22, 1957).  The  recor that the city of Bacolod was not made a party to the  case damus filed  against its acting  mayor.  True, the order of execute is specifically directed to the acting mayor and  the city treasurer, and not  to  the city itself, but there  is no denying that the  said order means to have the back  salaries of the respondents policemen paid from city funds, so that in the last analysis, it is  the city that is  being  made to satisfy that part  of the judgment in the case."

Accordingly, the  aforementioned writ of execution was annulled and the writ of preliminary injunction issued by this Court  in said case  No.  L-9775 was made  permanent. Modified, in the sense that the award for salaries corresponding to the period  of the ouster of petitioners herein shall be understood to bind exclusively respondent Manuel Villanueva, in his  private capacity, the decision appealed from is hereby affirmed,  therefore, in  all  other respects, with costs  against said respondent.  It is  so  ordered.

Paras, C. J., Bengzon, Reyes,  A., Bautista Angelo, Labrador, Endencia  and Felix, JJ., concur.