[ G.R. No. L-1534, October 25, 1948 ]
RICARDO SUMMERS, PETITIONER, VS. ROMAN OZAETA, SECRETARY OF JUSTICE, AND MANUEL AGREGADO, AUDITOR GENERAL, RESPONDENTS.
D E C I S I O N
PARAS, J.:
Prior to February 16, 1946, the petitioner was a cadastral judge. On said date he qualified for and assumed the position of judge-at-large of first instance by taking the corresponding oath of office before the Secretary of Justice, the petitioner having
received an ad interim appointment on February 11, 1946. On July 9, 1946, petitioner's ad interim appointment was disapproved by the Commission on Appointments, as a result of which the respondent Secretary of Justice duly informed the petitioner that the latter was thereupon
separated from the service. The petitioner seemed to have acquiesced in such separation, at least in so far as the same may be inferred from the fact that, thereafter and until the present action was instituted on July 11, 1947, his efforts were limited to the task of being
reappointed, although in the letter dated November 22, 1946, written by Senator Vicente Sotto to the Secretary of Justice, and requesting the re-appointment of the petitioner to one of the vacancies in the Courts of First Instance, it was argued that the petitioner did not cease
to be a cadastral judge. At any rate, the petitioner does not pretend that he has ever rendered service as cadastral judge or received any of its emoluments subsequent to the rejection of his ad interim appointment by the Commission on Appointments.
It is now argued by the petitioner that, under section 9, Article VIII, of the Constitution, he is entitled to continue as cadastral judge during good behavior until he reaches the age of seventy years or becomes incapacitated to discharge the duties of said office; that the positions of cadastral judge and judge-at-large are not incompatible and that, therefore, by the acceptance of the latter office he did not cease to be a cadastral judge, especially where his ad interim appointment was disapproved by the Commission on Appointments.
There can be no doubt about the constitutional right of members of the Supreme Court and judges of inferior courts to hold office during good behavior until they reach the age of seventy years or become incapacitated to discharge the duties of their office. We believe, however, as already pointed out in the concurring opinion of Justices Pablo, Perfecto and Hilado in Tavora vs. Gavina and Arciaga,[1] L-1257, October 30, 1947, 45 Off. Gaz., 1769, 1776, that said right is waivable and should be construed without prejudice to the legal effects of abandonment in proper cases.
It is alleged that the President, on his own initiative and without the knowledge or consent of the petitioner, appointed the latter ad interim to the position of judge-at-large on February 11, 1946. This may be taken for granted. Yet the fact remains that the petitioner was at complete liberty to decide whether he would honor the offer with acceptance or decline the same politely. Indeed, it is not here contended that the petitioner was compelled in any way to qualify for and assume the new position. In Zandueta vs. De la Costa,[1] 38 Off. Gaz., 2358, this Court emphasized that "the petitioner was free to accept or not the ad interim appointment issued by the President of the Commonwealth in his favor, in accordance with said Commonwealth Act No. 145. Nothing or nobody compelled him to do so. While the office of judge of first instance is of public interest, being one of the means employed by the Government to carry out one of its purposes, which is the administration of justice, considering the organization of the courts of justice in the Philippines and the creation of the positions of judge-at-large or substitutes, the temporary disability of a judge may be immediately remedied without detriment to the smooth running of the judicial machinery. If the petitioner believed, as he now seems to believe, that Commonwealth Act No. 145 is unconstitutional, he should have refused to accept the appointment offered him or, at least, he should have accepted it with reservation, had he believed that his duty of obedience to the laws compelled him to do so, and afterwards resort to the power entrusted with the final determination of the question whether a law is unconstitutional or not."
We do not hesitate to rule that petitioner's voluntary acceptance of the position of judge-at-large consequent upon his taking of the oath of office on February 16, 1946, amounted to a waiver of his right to hold the position of cadastral judge during the term fixed and guaranteed by the Constitution. But it is maintained that an ad interim appointment is merely temporary and the petitioner cannot be said to have vacated the office of cadastral judge in view of the rejection of said appointment by the Commission on Appointments. This point has td be resolved adversely to the petitioner, if we are to be consistent with the decision in Zandueta vs. De la Costa, supra, wherein it was held that "when a judge of first instance, presiding over a branch of a Court of First Instance of a judicial district by virtue of a legal and valid appointment, accepts another appointment to preside over the same branch of the same Court of First Instance, in addition to another court of the same category, both of which belong to a new judicial district formed by the addition of another Court of First Instance to the old one, enters into the discharge of the functions of his new office and receives the corresponding salary, he abandons his old office and cannot claim to be entitled to repossess it or question the constitutionality of the law by virtue of which his new appointment has been issued; and, said new appointment having been disapproved by the Commission on Appointments of the National Assembly, neither can he claim to continue occupying the office conferred upon him by said new appointment, having ipso jure ceased in the discharge of the functions thereof."
Moreover, an ad interim appointment is one made in pursuance of paragraph (4), section 10, Article VII, of the Constitution, which provides that "the President shall have the power to make appointments during the recess of the Congress, but such appointments shall be effective only until disapproval by the Commission on Appointments or until the next adjournment of the Congress." It is an appointment permanent in nature, and the circumstance that it is subject to confirmation by the Commission on Appointments does not alter its permanent character. An ad interim appointment is disapproved certainly for a reason other than that its provisional period has expired.
Said appointment is of course distinguishable from an "acting" appointment which is merely temporary, good until another permanent appointment is issued. (Austria vs. Amante,[1] L-959, January 9, 1948, 45 Off. Gaz., 2809.) Thus, the decision in Santiago vs. Agustin, 46 Phil. 1, cannot be invoked by the petitioner because Santiago, while being a member of the municipal board of Manila, was designated only "Acting Mayor" and this Court held that he did not thereby vacate his first office. Indeed, the distinction between an acting designation and a permanent appointment may be gathered from the following passage of the decision: "Mr. Santiago took the oath of office and qualified for the position of Acting Mayor of the City of Manila. He indicated to the Municipal Board his intention to fill the new office temporarily and then return to his position as member of the Municipal Board. Mr. Santiago never took the oath of office as Mayor of the City of Manila. He never qualified for the office of Mayor. He never accepted the office of Mayor. He did not at any time disclose an intention to abandon the office of member of the Municipal Board. There was no resignation, express or implied, from the latter office."
In the case at bar, the petitioner accepted and qualified for the position of judge-at-large by taking the oath of office of judge-at-large, and not merely of an "acting" judge-at-large. He cannot argue that said acceptance was conditioned upon the approval of the appointment by the Commission on Appointments, for, as stated in Zandueta vs. De la Costa, supra, the petitioner "knew, or at least he should know, that his ad interim appointment was subject to the approval of the Commission on Appointments of the National Assembly and that if said commission were to disapprove the same, it would become ineffective and he would cease discharging the office."
In a situation faced by the petitioner, the safer course to follow would have been for him to await the confirmation of the ad interim appointment before qualifying for and assuming the position of judge-at-large. A hasty acceptance on the part of an ad interim appointee, in the anxiety to enjoy either the higher honor or better material advantages of a second office, may lead to seemingly unfair consequences for which the appointing power should not be blamed. While in the ordinary course of things, an appointee certainly has the right to rely on his record and expect the approval of his appointment, it is nevertheless the better part of wisdom for one always to adopt the surer method which will, furthermore, protect him against any design, intentional or otherwise, to oust him from an office the tenure of which is fixed by the Constitution.
The petitioner cannot seek refuge in the general principle that in order that the acceptance of a second office may be held as amounting to a vacation of the first, the two offices must be incompatible. Petitioner's line of reasoning is that the positions of cadastral judge and judge-at-large are not incompatible because the rank, duties, powers and privileges of both do not conflict or are not inconsistent with each other, and one is not inferior or subordinate to the other, but that, on the contrary, said offices have similar rank, duties, powers and privileges in accordance with Commonwealth Act No. 504 which provides that cadastral judges "shall be paid a salary of eight thousand four hundred pesos per annum each, and shall have the same rank, powers and privileges enjoyed by and granted to judges of first instance" (section 1), and Executive Order No. 395, dated December 24, 1941, which provides that "all Judges appointed under the provisions of Commonwealth Act No. 504 (Cadastral) shall henceforth have general jurisdiction throughout the Philippines to try and determine all cases cognizable originally or on appeal by the Courts of First Instance." For our purposes, we would accept the comparison made by the petitioner and admit that there are judicial pronouncements to the effect that incompatibility of offices exists where there is a conflict in the duties of the offices, so that the performance of the duties of the one interferes with the performance of the duties of the other (42 Am. Jur., section 70, p. 936), or whenever one is subordinate to the other in some of its important and principal duties, and subject in some degree to its revisory power (Id., section 71, p. 937). It is noteworthy however, that the courts are prone to avoid the formulation of a general definition and content themselves with the discussion of specific cases and particular facts, and that it is difficult to find one sufficiently clear and comprehensive to be decisive in every case. (Id., section 70, p. 935.)
Under the comparison presented by the petitioner, the situation before us is undoubtedly not one wherein he may appropriately hold two compatible offices at one time such, for instance, as the positions of town recorder and county and probate judge (State ex rel. Murphy vs. Townsend, 79 S. W., 782), but one wherein he cannot legally hold two offices of similar category at the same time, like two positions of pudge of first instance. At least, the petitioner does not contend that he can simultaneously occupy the position of cadastral judge and the office of judge-at-large, for this would of course be clearly against public policy. The law has created a fixed number of cadastral judges' (Republic Act No. 156 and Executive Order No. 94, at P8,400 per annum each), and a fixed number of judges-at-large (Republic Act No. 156 and Executive Order No. 94, at P9,000 per annum each), and considerations of public interest must have been the basis therefor. If the petitioner can be a cadastral judge and a judge-at-large at the same time, the judicial positions as specified and created by law will be diminished by one. Authority in support of our proposition is not wanting. In State vs. Jones, 150 Wis., 572; 110 N. W., 431, it was held: "That relator in a contest by quo warranto for the office of police justice of the city of Watertown was held to have no right to that office, because at the time he was holding the office of justice of the peace in the same city. The court said: 'We consider that the two offices are clearly incompatible with, each other, and that one person cannot and should not hold both of them at the same time. In the plainest terms the charter gives the ciy four judicial officers of the grade of justice of the peace while, if the relator could make good his right to the office of police justice it would, in fact, have but three.' This is a strong and authoritative declaration of public policy and it is said elsewhere that the incompatibility 'which shall operate to vacate the first office exists where the nature and duties of the two offices are such as to render it improper from considerations of public policy for one person to retain both.' (Mechem, Pub. Off., section 422 and cases.) Preliminary examinations in criminal cases may be held before a justice of the peace, country judge, or court commissioner. Chapter 195, St. 1898. The consolidation in one person of the offices of county judge and justice of the peace diminishes the number of examining magistrates by one." And in State ex rel. Crawford vs. Anderson, 155 Iowa, 271, 136 N. W., 128, the same rule was stressed: "It is apparent from these several provisions of the law that the lawmaking power considered it for the public good and convenience to have three judicial officers in every township containing within its geographical limits an incorporated city, or town, and that in criminal prosecutions under the statute, these officers should have the same jurisdiction. And if this be true, can this plain purpose be thwarted by permitting one man to hold two of these offices? We think not, because the two offices are, in our judgment, incompatible when viewed in the light of the public policy expressed in the statutes creating them and defining their powers and duties. To hold otherwise would be to say that, in certain instances, there should be but two magistrates in the township, and it would then follow that other provisions of the statute would become wholly without force and effect."
It becomes unnecessary to determine whether petitioner's acts after he was notified by the Secretary of Justice about his separation from the service, constitute an implied acquiescense therein or an abandonement of the position of cadastral judge.
The petition will be, as the same is hereby, dismissed without costs. So ordered.
Moran, C. J., Pablo Bengzon, Tuason, and Montemayor, JJ, concur.
Mr. Justice Feria has reserved the right to prepare a dissenting opinion.
[1] 79 Phil., 421
[1] 66 Phil., 615
[1] 79 Phil., 780
It is now argued by the petitioner that, under section 9, Article VIII, of the Constitution, he is entitled to continue as cadastral judge during good behavior until he reaches the age of seventy years or becomes incapacitated to discharge the duties of said office; that the positions of cadastral judge and judge-at-large are not incompatible and that, therefore, by the acceptance of the latter office he did not cease to be a cadastral judge, especially where his ad interim appointment was disapproved by the Commission on Appointments.
There can be no doubt about the constitutional right of members of the Supreme Court and judges of inferior courts to hold office during good behavior until they reach the age of seventy years or become incapacitated to discharge the duties of their office. We believe, however, as already pointed out in the concurring opinion of Justices Pablo, Perfecto and Hilado in Tavora vs. Gavina and Arciaga,[1] L-1257, October 30, 1947, 45 Off. Gaz., 1769, 1776, that said right is waivable and should be construed without prejudice to the legal effects of abandonment in proper cases.
It is alleged that the President, on his own initiative and without the knowledge or consent of the petitioner, appointed the latter ad interim to the position of judge-at-large on February 11, 1946. This may be taken for granted. Yet the fact remains that the petitioner was at complete liberty to decide whether he would honor the offer with acceptance or decline the same politely. Indeed, it is not here contended that the petitioner was compelled in any way to qualify for and assume the new position. In Zandueta vs. De la Costa,[1] 38 Off. Gaz., 2358, this Court emphasized that "the petitioner was free to accept or not the ad interim appointment issued by the President of the Commonwealth in his favor, in accordance with said Commonwealth Act No. 145. Nothing or nobody compelled him to do so. While the office of judge of first instance is of public interest, being one of the means employed by the Government to carry out one of its purposes, which is the administration of justice, considering the organization of the courts of justice in the Philippines and the creation of the positions of judge-at-large or substitutes, the temporary disability of a judge may be immediately remedied without detriment to the smooth running of the judicial machinery. If the petitioner believed, as he now seems to believe, that Commonwealth Act No. 145 is unconstitutional, he should have refused to accept the appointment offered him or, at least, he should have accepted it with reservation, had he believed that his duty of obedience to the laws compelled him to do so, and afterwards resort to the power entrusted with the final determination of the question whether a law is unconstitutional or not."
We do not hesitate to rule that petitioner's voluntary acceptance of the position of judge-at-large consequent upon his taking of the oath of office on February 16, 1946, amounted to a waiver of his right to hold the position of cadastral judge during the term fixed and guaranteed by the Constitution. But it is maintained that an ad interim appointment is merely temporary and the petitioner cannot be said to have vacated the office of cadastral judge in view of the rejection of said appointment by the Commission on Appointments. This point has td be resolved adversely to the petitioner, if we are to be consistent with the decision in Zandueta vs. De la Costa, supra, wherein it was held that "when a judge of first instance, presiding over a branch of a Court of First Instance of a judicial district by virtue of a legal and valid appointment, accepts another appointment to preside over the same branch of the same Court of First Instance, in addition to another court of the same category, both of which belong to a new judicial district formed by the addition of another Court of First Instance to the old one, enters into the discharge of the functions of his new office and receives the corresponding salary, he abandons his old office and cannot claim to be entitled to repossess it or question the constitutionality of the law by virtue of which his new appointment has been issued; and, said new appointment having been disapproved by the Commission on Appointments of the National Assembly, neither can he claim to continue occupying the office conferred upon him by said new appointment, having ipso jure ceased in the discharge of the functions thereof."
Moreover, an ad interim appointment is one made in pursuance of paragraph (4), section 10, Article VII, of the Constitution, which provides that "the President shall have the power to make appointments during the recess of the Congress, but such appointments shall be effective only until disapproval by the Commission on Appointments or until the next adjournment of the Congress." It is an appointment permanent in nature, and the circumstance that it is subject to confirmation by the Commission on Appointments does not alter its permanent character. An ad interim appointment is disapproved certainly for a reason other than that its provisional period has expired.
Said appointment is of course distinguishable from an "acting" appointment which is merely temporary, good until another permanent appointment is issued. (Austria vs. Amante,[1] L-959, January 9, 1948, 45 Off. Gaz., 2809.) Thus, the decision in Santiago vs. Agustin, 46 Phil. 1, cannot be invoked by the petitioner because Santiago, while being a member of the municipal board of Manila, was designated only "Acting Mayor" and this Court held that he did not thereby vacate his first office. Indeed, the distinction between an acting designation and a permanent appointment may be gathered from the following passage of the decision: "Mr. Santiago took the oath of office and qualified for the position of Acting Mayor of the City of Manila. He indicated to the Municipal Board his intention to fill the new office temporarily and then return to his position as member of the Municipal Board. Mr. Santiago never took the oath of office as Mayor of the City of Manila. He never qualified for the office of Mayor. He never accepted the office of Mayor. He did not at any time disclose an intention to abandon the office of member of the Municipal Board. There was no resignation, express or implied, from the latter office."
In the case at bar, the petitioner accepted and qualified for the position of judge-at-large by taking the oath of office of judge-at-large, and not merely of an "acting" judge-at-large. He cannot argue that said acceptance was conditioned upon the approval of the appointment by the Commission on Appointments, for, as stated in Zandueta vs. De la Costa, supra, the petitioner "knew, or at least he should know, that his ad interim appointment was subject to the approval of the Commission on Appointments of the National Assembly and that if said commission were to disapprove the same, it would become ineffective and he would cease discharging the office."
In a situation faced by the petitioner, the safer course to follow would have been for him to await the confirmation of the ad interim appointment before qualifying for and assuming the position of judge-at-large. A hasty acceptance on the part of an ad interim appointee, in the anxiety to enjoy either the higher honor or better material advantages of a second office, may lead to seemingly unfair consequences for which the appointing power should not be blamed. While in the ordinary course of things, an appointee certainly has the right to rely on his record and expect the approval of his appointment, it is nevertheless the better part of wisdom for one always to adopt the surer method which will, furthermore, protect him against any design, intentional or otherwise, to oust him from an office the tenure of which is fixed by the Constitution.
The petitioner cannot seek refuge in the general principle that in order that the acceptance of a second office may be held as amounting to a vacation of the first, the two offices must be incompatible. Petitioner's line of reasoning is that the positions of cadastral judge and judge-at-large are not incompatible because the rank, duties, powers and privileges of both do not conflict or are not inconsistent with each other, and one is not inferior or subordinate to the other, but that, on the contrary, said offices have similar rank, duties, powers and privileges in accordance with Commonwealth Act No. 504 which provides that cadastral judges "shall be paid a salary of eight thousand four hundred pesos per annum each, and shall have the same rank, powers and privileges enjoyed by and granted to judges of first instance" (section 1), and Executive Order No. 395, dated December 24, 1941, which provides that "all Judges appointed under the provisions of Commonwealth Act No. 504 (Cadastral) shall henceforth have general jurisdiction throughout the Philippines to try and determine all cases cognizable originally or on appeal by the Courts of First Instance." For our purposes, we would accept the comparison made by the petitioner and admit that there are judicial pronouncements to the effect that incompatibility of offices exists where there is a conflict in the duties of the offices, so that the performance of the duties of the one interferes with the performance of the duties of the other (42 Am. Jur., section 70, p. 936), or whenever one is subordinate to the other in some of its important and principal duties, and subject in some degree to its revisory power (Id., section 71, p. 937). It is noteworthy however, that the courts are prone to avoid the formulation of a general definition and content themselves with the discussion of specific cases and particular facts, and that it is difficult to find one sufficiently clear and comprehensive to be decisive in every case. (Id., section 70, p. 935.)
Under the comparison presented by the petitioner, the situation before us is undoubtedly not one wherein he may appropriately hold two compatible offices at one time such, for instance, as the positions of town recorder and county and probate judge (State ex rel. Murphy vs. Townsend, 79 S. W., 782), but one wherein he cannot legally hold two offices of similar category at the same time, like two positions of pudge of first instance. At least, the petitioner does not contend that he can simultaneously occupy the position of cadastral judge and the office of judge-at-large, for this would of course be clearly against public policy. The law has created a fixed number of cadastral judges' (Republic Act No. 156 and Executive Order No. 94, at P8,400 per annum each), and a fixed number of judges-at-large (Republic Act No. 156 and Executive Order No. 94, at P9,000 per annum each), and considerations of public interest must have been the basis therefor. If the petitioner can be a cadastral judge and a judge-at-large at the same time, the judicial positions as specified and created by law will be diminished by one. Authority in support of our proposition is not wanting. In State vs. Jones, 150 Wis., 572; 110 N. W., 431, it was held: "That relator in a contest by quo warranto for the office of police justice of the city of Watertown was held to have no right to that office, because at the time he was holding the office of justice of the peace in the same city. The court said: 'We consider that the two offices are clearly incompatible with, each other, and that one person cannot and should not hold both of them at the same time. In the plainest terms the charter gives the ciy four judicial officers of the grade of justice of the peace while, if the relator could make good his right to the office of police justice it would, in fact, have but three.' This is a strong and authoritative declaration of public policy and it is said elsewhere that the incompatibility 'which shall operate to vacate the first office exists where the nature and duties of the two offices are such as to render it improper from considerations of public policy for one person to retain both.' (Mechem, Pub. Off., section 422 and cases.) Preliminary examinations in criminal cases may be held before a justice of the peace, country judge, or court commissioner. Chapter 195, St. 1898. The consolidation in one person of the offices of county judge and justice of the peace diminishes the number of examining magistrates by one." And in State ex rel. Crawford vs. Anderson, 155 Iowa, 271, 136 N. W., 128, the same rule was stressed: "It is apparent from these several provisions of the law that the lawmaking power considered it for the public good and convenience to have three judicial officers in every township containing within its geographical limits an incorporated city, or town, and that in criminal prosecutions under the statute, these officers should have the same jurisdiction. And if this be true, can this plain purpose be thwarted by permitting one man to hold two of these offices? We think not, because the two offices are, in our judgment, incompatible when viewed in the light of the public policy expressed in the statutes creating them and defining their powers and duties. To hold otherwise would be to say that, in certain instances, there should be but two magistrates in the township, and it would then follow that other provisions of the statute would become wholly without force and effect."
It becomes unnecessary to determine whether petitioner's acts after he was notified by the Secretary of Justice about his separation from the service, constitute an implied acquiescense therein or an abandonement of the position of cadastral judge.
The petition will be, as the same is hereby, dismissed without costs. So ordered.
Moran, C. J., Pablo Bengzon, Tuason, and Montemayor, JJ, concur.
Mr. Justice Feria has reserved the right to prepare a dissenting opinion.
[1] 79 Phil., 421
[1] 66 Phil., 615
[1] 79 Phil., 780