When Mayor Fidencio Latorre of Villareal, Samar, departed for Manila on official business early in the morning  of September 22, 1952, he designated the herein defendant Francisco Hilvano,  councilor, to discharge the duties of his office.  Later, during office hours on that same day, Vice-Mayor Juan Latorre went  to the municipal building; and having found Hilvano acting in the place  of the Mayor, he served written notices to the corresponding municipal officers, including Hilvano, ihat he (Juan Latorre) as Vice-Mayor was assuming the duties of the absent mayor. However, Hilvano refused to yield,  arguing that he  had been  designated by the Mayor.  Whereupon the  Vice-Mayor sent  a telegram  to  the Executive Secretary informing  the latter of the controversy.  And the said Secretary replied by letter,  that under sec. 2195  of the  Revised Administrative  Code  it  was  the  Vice-Mayor who should discharge the duties of the Mayor during the latter's temporary absence.   Shown  this official pronouncement, Hilvano  still  refused  to surrender  the position.  Again the Vice-Mayor sought the  opinion  of the  Provincial Fiscal,  who by letter  (Exhibit D),  replied  that the Vice-Mayor had the right to the office.   Notwithstanding such opinion which was exhibited to him Hilvano  declined to vacate the post, which  he held for  about a month,  appointing some policemen, solemnizing marriages and  collecting the corresponding salary for  mayor.

Wherefore  Francisco  Hilvano   was  prosecuted and after trial was convicted of usurpation of public authority under Republic Act No. 10.   He  appealed in due time. The  Solicitor-General  and appellant's counsel  agree that the penal provision  applicable to the case is Republic  Act No. 379  which  amended Art.  177  of the Revised  Penal Code  to  read as follows: 

"Usurpation of authority or official functions. Any person  who shall knowingly and falsely represent himself to be an officer, agent or representative of any department or  agency  of the Philippine Government or of any  foreign government, or who, under pretense of official  position, shall perform any act pertaining to any person in authority or public officer of the Philippine Government or of any foreign government, or any agency thereof, without being lawfully entitled to do so, shall suffer the penalty of prision correctional in its minimum and medium periods.'"

It is contended however for the appellant that he committed no usurpation of authority because he was a councilor, an official of the Government, and that such crime may only be committed by private individuals.  He cited a decision of  the Supreme Court of Spain  of 1880 interpreting the corresponding  article of  the  Spanish Penal Code, which is the origin of our own Penal Code/  But it appears that in subsequent decisions the same court convicted of  the offense of usurpation certain officials who without proper authority discharged the functions of other officials, e.g.,  a municipal judge (Jan. 22, 1890)  and  a vice-mayor (teniente de alcalde) who discharged the functions of the  alcalde.  (Oct.  15, 1891).  See  Viada  5th Ed.  Vol. IV pp.  227-230. ^[1]

There is actually no reason to restrict the operation of Article 177 to private individuals.  For one thing it applies to "any person"; and where the law does not distinguish, we should not distinguish.  Furthermore, contrary to appellant's  assumption that  Articles 238-241  of  the Revised Penal Code penalize  all kinds of usurption  of official functions by public  officers, said articles merely punish interference by officers of one of the three departments of government (legislative, executive and judicial) with the  functions  of  officials of  another department. Said articles do not cover usurption of one officer or employee of  a given  department of the  powers of another officer in the same department.   For instance, the exercise by a bureau employee of the powers of his director.

There  is  no  excuse for  defendant-appellant.  In  the beginning he might have pleaded good faith, invoking  the designation by the Mayor;  but after he had been  shown the letter of the Executive Secretary and the opinion of the provincial fiscal, he had no  right thereafter stubbornly to stick to the position.  He was rightfully convicted.  But the penalty impossed on him should be modified, in accordance with the recommendation of the Solicitor General.   He is sentenced to  an indeterminate term of 4 months of arresto mayor to two years of prision correctional.  So modified, the appealed  judgment is affirmed with costs against appellant.

Paras, C. J., Padilla, Montemayor, Reyes, A., Bautista Angelo,  Labrador,  Reyes, J. B. L.,  Endencia  and  Felix, JJ., concur. 
 
 

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^[1] See also decision of Feb. 23, 1893, Cuello Calon, Derecho Penal,6th Ed. Vol. II page 243, note.