Involved in these quo warranto proceedings filed directly with this Court is the Office of Provincial Fiscal of Negros Oriental, and the right to said position as between the petitioner Antonio Lacson and the respondent Honorio Romero.
The facts necessary for the decision in this case may be stated as follows: Petitioner Lacson was on July 25, 1946, appointed by the President of the Philippines, provincial fiscal of Negros Oriental. The appointment was confirmed by the Commission on Appointments on August 6, 1946. He took his oath of office on August 10, 1946, and thereafter performed the duties of that office.
Upon recommendation of the Secretary of Justice, on May 17, 1949, the President nominated petitioner Lacson to the post of provincial fiscal of Tarlac. On the same date, the President nominated for the position of provincial fiscal of Negros Oriental respondent Romero. Both nominations were simultaneously confirmed by the Commission on Appointments on May 19, 1949.
Lacson neither accepted the appointment nor assumed the office of fiscal of Tarlac. But respondent Romero took his oath of office (the post of fiscal of Negros Oriental) in Manila on June 16, 1949, notified the Solicitor General of the fact, and thereafter proceeded to his station. Upon arrival at Dumaguete City, capital of Negros Oriental, he notified Lacson of his intention to take over the office the following day, but Lacson objected. On June 24, 1949, Romero appeared in criminal case No. 4433 before Judge Gregorio S. Narvasa. In said appearance, petitioner Lacson filed his objection and asked that Romero’s appearance be stricken from the record. After Romero had exhibited his credentials as required by the court, Judge Narvasa on the same day denied the petition of Lacson and recognized respondent Romero as the provincial fiscal of Negros Oriental. On June 27, 1949, Romero appeared in Special Proceedings No. 630 before Judge Felicisimo Ocampo. Lacson again objected to said appearance but the court overruled his objection. This will explain why Judges Narvasa and Ocampo were made respondents in these quo warranto proceedings.
When petitioner Lacson requested payment of his salary for the period from June 16 to June 23, 1949 as provincial fiscal of Negros Oriental, Angel Paguia, Provincial Auditor and L. J. Alfabeto, Provincial Treasurer turned down his claim and instead paid respondent Romero the salary for the position of provincial fiscal from June 16, 1949, and continued paying it to him periodically up to the present time. Their action was based on a reply given to their query, by the Secretary of Justice to the effect that Romero was the provincial fiscal of Negros Oriental. This is the reason why the Auditor and the Treasurer of Negros Oriental were likewise made respondents in these proceedings.
The purpose of the present action is to establish the right of the petitioner to the post of provincial fiscal of Negros Oriental and to oust the respondent Romero therefrom. The petition and the memorandum in support thereof among other things contain the following prayer:jgc:chanrobles.com.ph
"(1) Recognizing the right of petitioner Antonio Lacson to hold and occupy the position of provincial fiscal of Negros Oriental;
"(2) Declaring the respondent Honorio Romero guilty of usurpation, unlawful holding and exercise of the functions and duties of provincial fiscal of Negros Oriental; ordering the exclusion of said respondent from said office; and ordering him to surrender to herein petitioner all records and papers appertaining to said office that may have come into his possession;
"(3) Ordering respondents provincial treasurer L. J. Alfabeto and provincial auditor Angel Paguia, or their successors in office, to pay herein petitioner his salary commencing June 16, 1949, up to the present time and until herein petitioner shall have legally ceased to be the incumbent of said office; and
"(4) Ordering respondent Honorio Romero to pay the costs."cralaw virtua1aw library
Incidentally, and to serve as background in the consideration of this case, it may be stated that when the nominations of Lacson and Romero to the posts of Provincial Fiscal of Tarlac and Negros Oriental, respectively, were made in May, 1949, Negros Oriental was a second class province with a salary of P5,100 per annum for the post of provincial fiscal, while Tarlac was first class simple with a higher salary of P5,700 per annum for its provincial fiscal. There is therefore reason to believe that the nomination of Lacson to Tarlac or rather his attempted transfer from Negros Oriental to Tarlac was intended and considered as a promotion. At least, there is nothing in the record to show that he was being deliberately eased out of or removed from his post in Negros Oriental. However, after the appointments and confirmations, the President raised the province of Negros Oriental to the category of First Class A province with retroactive effect as of January 1, 1949. It is alleged by respondent Romero that after the filing of the present petition, Tarlac was likewise raised to the category of First Class B province on July 15, 1949 so that thereafter the salary for provincial fiscal in both province is the same, namely, P6,000 each. This might be one of the reasons why petitioner Lacson declined to accept his nomination to the Province of Tarlac, preferring to remain at his old post of provincial fiscal of Negros Oriental.
The determination as to who is entitled to the position of provincial fiscal of Negros Oriental, depends upon the correct answers to several queries such as: (1) Did the Commission on Appointments alone, without his acceptance nomination of Lacson to Tarlac and its confirmation by the thereof create a vacancy in the post of provincial fiscal of Negros Oriental so that Romero could be lawfully appointed to said vacancy? (2) Does the nomination of Lacson to Tarlac and its confirmation by the Commission on Appointments serve as and is equivalent to a removal of Lacson as fiscal of Negros Oriental? If in the affirmative, was that removal valid and lawful? (3) Could the President who appointed Lacson as provincial fiscal of Negros Oriental remove him at will and without cause, or did the post of provincial fiscal in general have attached to it a tenure of office during which the incumbent may not be removed except for cause?
The appointment to a government post like that of provincial fiscal to be complete involves several steps. First, comes the nomination by the President. Then to make that nomination valid and permanent, the Commission on Appointments of the Legislature has to confirm said nomination. The last step is the acceptance thereof by the appointee by his assumption of office. The first two steps, nomination and confirmation, constitute a mere offer of a post. They are acts of the Executive and Legislative departments of the Government. But the last necessary step to make the appointment complete and effective rests solely with the appointee himself. He may or he may not accept the appointment or nomination. As held in the case of Borromeo v. Mariano, 41 Phil., 327, "there is no power in this country which can compel a man to accept an office." Consequently, since Lacson has declined to accept his appointment as provincial fiscal of Tarlac and no one can compel him to do so, then he continues as provincial fiscal of Negros Oriental and no vacancy in said office was created, unless Lacson had been lawfully removed as such fiscal of Negros Oriental.
As to the second question, it is obvious that the intended transfer of Lacson to Tarlac on the basis of his nomination thereto, if carried out, would be equivalent to a removal from his office in Negros Oriental. To appoint and transfer him from one province to another would mean his removal or separation from the first province. The reason is that a fiscal is appointed for each province (sec. 1673, Rev. Adm. Code), and Lacson could not well and legally hold and occupy the two posts of fiscal of Tarlac and Negros Oriental simultaneously. To be fiscal for Tarlac must mean his removal from Negros Oriental.
In the case of Nicolas v. Alberto, 51 Phil., 370, this Court held that "a transfer of a Justice of the Peace outside of the municipality of which he is appointed is in legal effect a combined removal and appointment." (Decision in this case was reversed by the U. S. Supreme Court [279 U. S., 141], but on other grounds, leaving the doctrine on transfer and removal undisturbed.) When the transfer is consented to and accepted by the transferees, then there would be no question; but where as in the present case, the transfer is involuntary and objected to, then it is necessary to decide whether the removal is lawful.
What is the nature of the office of provincial fiscal? Is it included in the Civil Service? The answer is, undoubtedly, in the affirmative. Article XII, section 1 of our Constitution provides that "a Civil Service embracing all branches and subdivisions of the Government shall be provided by law." Section 668 of the Administrative Code as amended by Com. Act No. 177, sec. 6, provides that "the Philippine Civil Service shall embrace all branches and subdivisions of the Government;" and section 670 of the same Code provides that "persons in the Philippine Civil Service pertain either to the classified or unclassified service." Section 671 of the same code as amended by Commonwealth Act No. 177, section 8 in part provides as follows:jgc:chanrobles.com.ph
"Sec. 671. Persons embraced in unclassified service. — The following officers and employees constitute the unclassified service:jgc:chanrobles.com.ph
"(a) A secretary, a sergeant-at-arms, and such other officers as may be required and chosen by the National Assembly in accordance with the constitution.
"(b) Officers, other than the provincial treasurers and Assistant Directors of Bureaus or Offices, appointed by the President of the Philippines, with the consent of the Commission on Appointments of the National Assembly, and all other officers of the Government whose appointments are by law vested in the President of the Philippines alone.
"(c) Elective officers."cralaw virtua1aw library
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From the foregoing, we find that the post of provincial fiscal in the Philippines is included in subsection (b) above-quoted particularly the underlined portion thereof. The law regarding appointment to the post of provincial fiscal is contained in section 66 of the Administrative Code which provides that "the Governor-General (now the President) shall appoint among other officials, Secretaries to Departments, Provincial Treasurers, Provincial Fiscals, Register of Deeds, etc." And, Article VII, section 10(3) of the Constitution provides that the President shall nominate and with the consent of the Commission on Appointments shall appoint among other officials, "all other officers of the Government whose appointments are not herein otherwise provided for" which clearly includes the office of provincial fiscal. It is therefore clear that a provincial fiscal who is nominated and appointed by the President with the consent of the Commission on Appointments, as was petitioner Lacson, is, under section 671(b) above-quoted, included in the unclassified service of the Civil Service.
The next question arises as to whether the President even with the concurrence or consent of the Commission on Appointments may remove a provincial fiscal without cause. The Constitution itself denies said right. Article XII, section 4 of said instrument provides that "no officer or employee in the civil service shall be removed or suspended except for cause as provided by law." This constitutional provision is reproduced word for word in the first paragraph of sec. 694 of the Rev. Adm. Code, as amended by Commonwealth Act No. 177, section 22.
In order to better appreciate the meaning of this constitutional provision as well as the purpose behind it, it is necessary to delve, though ever so lightly into the framing of this basic instrument. The Committee on Civil Service of the Constitutional Convention which drafted the Constitution in its report and in advocating the merit system in connection with a civil Service system among other things stated the following:jgc:chanrobles.com.ph
"The adoption of the ’merit system’ in government service has secured efficiency and social justice. It eliminates the political factor in the selection of civil employees which is the first essential to an efficient personnel system. It insures equality of opportunity to all deserving applicants desirous of a career in the public service. It advocates a new concept of the public office as a career open to all and not the exclusive patrimony of any party or faction to be doled out as a reward for party service." (Aruego’s Framing of the Constitution, Vol. II, p. 886.)
"The ’merit system’ was adopted only after the nations of the world took cognizance of its merits. Political patronage in the government service was sanctioned in 1789 by the constitutional right of the President of the United States to act alone in the matter of removals. From the time of Andrew Jackson, the principle of the ’To the victor belong the spoils’ dominated the Federal Government. The system undermined moral values and destroyed administrative efficiency.." . . (Ibid. p. 886.)
"Since the establishment of the American Regime in the Philippines we have enjoyed the benefits of the ’merit system.’ The Schurman Commission advocated in its report that ’the greatest care should be taken in the selection of officials for administration. They should be men of the highest character and fitness, and partisan politics should be entirely separated from the government.’ The fifth act passed by the Philippine Commission created a Board of Civil Service. It instituted a system here that was far more radical and thorough than that in the United States. The Governors-General after William Taft adopted the policy of appointing Filipinos in the government regardless of their party affiliation. As the result of these ’the personnel of the Civil Service had gradually come to be one of which the people of the United States could feel justly proud.’
"Necessity for Constitutional Provisions. — The inclusion in the constitution of provisions regarding the ’merit system’ is a necessity of modern times. As its establishment secures good government, the citizens have a right to expect its guarantee as a permanent institution. . . . (Ibid. p. 887.)
"Separations, Suspensions, Demotions, and Transfers. — The ’merit system’ will be ineffective if no safeguards are placed around the separation and removal of public employees. The Committee’s report requires that removals shall be made only for ’causes and in the manner provided by law.’ This means that there should be bona fide reasons and action may be taken only after the employee shall have been given a fair hearing. This affords to public employees reasonable security of tenure." (Ibid. p. 890.)
It is contended on behalf of the respondent that the power of removal is inherent in the power to appoint and that consequently, the President had the right to remove the petitioner as provincial fiscal of Negros Oriental and transfer him to Tarlac. Ordinarily, where there is no constitutional limitation the contention of the respondent would be tenable; but where as in the Philippines and as already stated the Constitution forbids the removal of a civil service official or employee like the petitioner except for cause as provided by law, said right of the Chief Executive is qualified and limited. That constitutional prohibition is a limitation to the inherent power of the Executive to remove those civil service officials whom he appoints. This is the reason why we find the American cases cited in support of respondent’s theory to be inapplicable. The prohibition against removal except for cause contained in our Constitution has no counterpart in the Federal Constitution of the United States.
Again, it is contended that the provincial fiscal is not appointed for a fixed term and that there is no tenure of office attached to the post. This contention is without merit. As we have already stated, a provincial fiscal as a civil service official may not be removed from office even by the President who appointed him, and even with the consent of the Commission on Appointments, except for cause. Considering this security and protection accorded a provincial fiscal from arbitrary and illegal removal from office, and considering the provisions of section 1673 of the Administrative Code which among other things provides that "after December 31, 1932 any city fiscal or assistant city fiscal of Manila, provincial fiscal or deputy provincial fiscal over 65 years of age shall vacate his office, the logical inference is that a provincial fiscal duly appointed, until he reaches the age of 65 has the right to continue in office unless sooner removed for cause. In other words, he enjoys tenure of office, which is duly protected by statute and by the Constitution.
The last part of the report of the Committee on Civil Service of the Constitutional Convention which we have reproduced mentions this tenure of office in its last sentence, — "This affords public employees reasonable security or tenure." Speaking of tenure of office of members of the civil service in the Philippines, Professor Sinco in his book on Philippine Political Law has the following to say:jgc:chanrobles.com.ph
"Security of Tenure.
"Nothing can be more demoralizing to a group of civil servants than the fear that they might be removed from their posts any time at the pleasure of their superiors. It goes without saying that a demoralized force is an inefficient force. Security of tenure is necessary in order to obtain efficiency in the civil service. For this purpose the Constitution provides that ’no officer or employee in the Civil Service shall be removed or suspended except for cause as provided by law.’ (Philippine Political Law by Sinco, p. 350.)
"In our discussion of the functions of the President, it was there shown that the President’s power of removal, which is implied from his power of appointment, is very comprehensive and almost unlimited when it affects officers holding purely executive positions. This class of officers, under the rule laid down in the Meyers case, may be removed by the President at practically any time and for any cause. No statutory check, such as a requirement that his order of removal should be subject to the previous consent of the senate or the Commission on Appointments before it could be effective, may be validly placed upon his right to exercise this power. But the provision of the Constitution of the Philippines, which has no counterpart in the Constitution of the United States, makes the tenure of officers and employees in the Civil Service secure even against the President’s power of removal and even if the officers should hold purely executive offices. The result is that the scope of the rule established in the Meyers case is considerably modified and reduced when applied in this jurisdiction. It may only apply in case of executive officers appointed by the President and not belonging to the Civil Service as established by the Constitution." (Ibid. pp. 350-351.)
It is also contended by the respondent that neither the Constitution nor the laws passed by the Legislature mention or enumerate the cause or causes for which a civil service official may be removed from office. We find this claim untenable. Section 686 of the Revised Administrative Code, as amended by Commonwealth Act No. 177, section 18 provides that falsification by a civil service official of his daily time record shall render him liable to summary removal and subject him to prosecution as provided by law. A like provision for removal and prosecution is found in section 687 of the same Code, as amended by Commonwealth Act 177, section 19 which deals with political activity and contribution to political fund by civil service employees. Then we have Rule XIII, section 6 of the Civil Service Rules providing thus:jgc:chanrobles.com.ph
"6. Discourtesy to private individuals or to Government officers or employees, drunkenness, gambling, dishonesty, repeated or flagrant violation or neglect of duty, notoriously disgraceful or immoral conduct, physical incapacity due to immoral or vicious habits, incompetency, inefficiency, borrowing money by superior officers from subordinates or lending money by subordinate to superior officers, lending money at exhorbitant rates of interest, willful failure to pay just debts, contracting loans of money or other property from merchants or other persons with whom the bureau of the borrower is in business relations, pecuniary embarrassment arising from reprehensible conduct, the pursuits of private business, vocation, or profession without permission in writing from the chief of the bureau or office in which employed and of the Governor-General (now the President) or proper head of Department, disreputable or dishonest conduct committed prior to entering the service, insubordination, pernicious political activity, offensive political partisanship or conduct prejudicial to the best interest of the service, or the willful violation by any person in the Philippine civil service of any of the provisions of the Revised Civil Service Act or rules, may be considered reasons demanding proceedings to remove for cause, to reduce in class or grade, or to inflict other punishment as provided by law in the discretion of the Governor-General (now the President) or proper head of Department. No chief of a bureau or office shall knowingly continue in the public service any subordinate officer or employee who is inefficient or who is guilty of any of the above-named derelictions, without submitting the facts through the Director to the Governor-General (now the President) or proper head of Department."cralaw virtua1aw library
The law and civil service rules above referred to clearly provide the causes or some of the causes for removal of civil service officials; and they answer the contention of the respondent on this point.
Section 64 of the Revised Administrative Code, providing for the particular powers and duties of the Governor-General, now the President of the Republic, in part reads as follows:chanrob1es virtual 1aw library
x x x
"(b) To remove officials from office conformably to law and to declare vacant the offices held by such removed officials. For disloyalty to the United States (now the Philippines), the Governor-General (now the President) may at any time remove a person from any position of trust or authority under the Government of the Philippine Islands.
"(c) To order, when in his opinion the good of the public service so requires, an investigation or any action or the conduct of any person in the Government service, and in connection therewith to designate the official, committee, or person by whom such investigation shall be conducted."cralaw virtua1aw library
x x x
Section 694 of the Administrative Code as amended by Commonwealth Act No. 177, section 22, reads as follows:jgc:chanrobles.com.ph
"Sec. 694. Removal or suspension. — No officer or employee in the civil service shall be removed or suspended except for cause as provided by law.
"The President of the Philippines may suspend any chief or assistant chief of a bureau or office, and in the absence of special provision, any other officer appointed by him, pending an investigation of charges against such officer or pending an investigation of his bureau or office. With the approval of the proper head of department, the chief of a bureau or office may likewise suspend any subordinate or employee in his bureau or under his authority pending an investigation, if the charge against such subordinate or employee involves dishonesty, oppression, or grave misconduct or neglect in the performance of duty."cralaw virtua1aw library
From the sections above-quoted, the inference is inevitable that before a civil service official or employee can be removed, there must first be an investigation at which he must be given a fair hearing and an opportunity to defend himself. In the case of petitioner Lacson, the record fails to show, neither is there any claim that he has been charged with any violation of law or civil service regulation, much less investigated and thereafter found guilty so as to authorize or warrant removal from office.
In view of the foregoing, we are constrained to find and to hold that the transfer of Lacson to Tarlac by his nomination to the post of provincial fiscal of that province was equivalent to and meant his removal as provincial fiscal of Negros Oriental; that said removal was illegal and unlawful for lack of valid cause as provided by law and the Constitution; that the confirmation of the nomination by the Commission on Appointments did not and could not validate the removal, since the Constitution is equally binding on the Legislature; that a provincial fiscal is a civil service official or employee whose tenure of office is protected by the Constitution; and that Antonio Lacson could not be compelled to accept his appointment as provincial fiscal of Tarlac; that having declined said appointment, he continued as provincial fiscal of Negros Oriental; that inasmuch as he neither left, abandoned nor resigned from his post as provincial fiscal of Negros Oriental, there was no vacancy in said post to which the respondent could be legally appointed; and that consequently, the appointment of the respondent was invalid.
In this connection we may point out that the Constitution having clearly limited and qualified the Presidential power of removal in order to protect civil service officials and employees, secure to them a reasonable tenure of office and thus give the country the benefit of an efficient civil service based on the merit system, this Court could do no less than give effect to the plain intent and spirit of the basic law, specially when it is supplemented and given due course by statutes, rules and regulations. To hold that civil service officials hold their office at the will of the appointing power subject to removal or forced transfer at any time, would demoralize and undermine and eventually destroy the whole Civil Service System and structure. The country would then go back to the days of the old Jacksonian Spoils System under which a victorious Chief Executive, after the elections could if so minded, sweep out of office, civil service employees differing in political color or affiliation from him, and sweep in his political followers and adherents, especially those who have given him help, political or otherwise. A Chief Executive running for re-election may even do this before election time not only to embarrass and eliminate his political enemies from office but also to put his followers in power so that with their official influence they could the better help him and his party in the elections. As may be gathered from the report of the Committee of the Constitutional Convention which we have reproduced at the beginning of this opinion, the framers of our Constitution, at least the Civil Service Committee thereof, condemned said spoils system and purposely and deliberately inserted the constitutional prohibition against removal except for cause, which now forms the basis of this decision.
There are hundreds, yea, thousands of young, ambitious people who enter the Civil Service not temporarily or as a makeshift, but to make a career out of it. They give the best years of their lives to the service in the hope and expectation that with faithful service, loyalty and some talent, they may eventually attain the upper reaches and levels of official hierarchy.
To permit circumvention of the constitutional prohibition in question by allowing removal from office without lawful cause, in the form or guise of transfers from one office to another, or from one province to another, without the consent of the transferee, would blast the hopes of these young civil service officials and career men and women, destroy their security and tenure of office and make for a subservient, discontented and inefficient civil service force that sways with every political wind that blows and plays up to whatever political party is in the saddle. That would be far from what the framers of our Constitution contemplated and desired. Neither would that be our concept of a free and efficient Government force, possessed of self-respect and reasonable ambition.
Incidentally, it happens that the petitioner is one of those we had in mind as making a career of the Government service. He claims and it is not denied by the respondent, that twenty years ago he entered the service of the Government as register of deeds of Negros Oriental, then was promoted to the post of fiscal, first of the Province of Palawan, then of Surigao, later of Antique and lastly of Negros Oriental in 1946. He does not want to accept the transfer to the Province of Tarlac. His only alternative would be to resign, sacrifice his twenty years of continuous, faithful service and his career, and perchance his hope that some day, he might yet be promoted to the judiciary. Not a very bright prospect or picture, not only to him but to other civil service officials in like circumstances.
But in justice to the President and the Commission on Appointments, let it be stated once again that it would seem that the transfer of the petitioner to Tarlac was not meant and intended as a punishment, a disciplinary measure or demotion. It was really a promotion, at least at the time the appointment was made. Only, that later, due to a change in the category of Oriental Negros as a province, the transfer was no longer a promotion in salary. And yet the respondent and the Solicitor General insisted in the transfer despite the refusal of the petitioner to accept his new appointment.
In conclusion, we find and declare the petitioner to be the provincial fiscal of Negros Oriental, and the respondent not being entitled to said post, is hereby ordered to surrender to the petitioner all the records or papers appertaining to said office that may have come into his possession. The respondent provincial auditor and provincial treasurer are hereby ordered to pay to the herein petitioner his salary from June 16, 1949, and as long as said petitioner continues to be the legal incumbent to the office in question. Considering that the respondent appears to have acted in good faith and relied upon his nomination by the President and the confirmation thereof by the Commission on Appointments, as well as the position taken by the Solicitor General, who sustained his appointment, we make no pronouncement as to costs.
Ozaeta, Paras, Feria, Bengzon, Tuason and Torres, JJ.
I concur in the result.