ChanRobles™ Virtual Law Library | chanrobles.com™  
Main Index Law Library Philippine Laws, Statutes & Codes Latest Legal Updates Philippine Legal Resources Significant Philippine Legal Resources Worldwide Legal Resources Philippine Supreme Court Decisions United States Jurisprudence
Prof. Joselito Guianan Chan's The Labor Code of the Philippines, Annotated Labor Standards & Social Legislation Volume I of a 3-Volume Series 2019 Edition (3rd Revised Edition)
 

 
Chan Robles Virtual Law Library
 









 

 
UNITED STATES SUPREME COURT JURISPRUDENCE
 

 
PHILIPPINE SUPREME COURT JURISPRUDENCE
 

   
May-1958 Jurisprudence                 

  • G.R. No. L-11219 May 7, 1958 - PACITA SALABARIA VDA. DE SUATARON v. HAWAIIAN-PHILIPPINE COMPANY

    103 Phil 647

  • G.R. No. L-11580 May 9, 1958 - MARCELINO GABRIEL v. GOVERNMENT SERVICE INSURANCE SYSTEM

    103 Phil 651

  • G.R. No. L-11231 May 12, 1958 - ROSARIO CARBONNEL v. JOSE PONCIO

    103 Phil 655

  • G.R. No. L-9531 May 14, 1958 - WARNER BARNES & CO. v. GUILLERMO C. REYES

    103 Phil 662

  • G.R. No. L-11578 May 14, 1958 - GERONIMO AVECILLA v. HON. NICASIO YATCO

    103 Phil 666

  • G.R. No. L-11629 May 14, 1958 - CELEDONIO E. ESCUDERO v. ANTONIO G. LUCERO

    103 Phil 672

  • G.R. No. L-10559 May 16, 1958 - IN RE: YU NEAM v. REPUBLIC OF THE PHIL.

    103 Phil 677

  • G.R. No. L-10657 May 16, 1958 - NUMERIANO L. VALERIANO, ET AL. v. CONCEPCION KERR, ET AL.

    103 Phil 681

  • G.R. No. L-11285 May 16, 1958 - VICENTE SAPTO v. APOLONIA FABIANA

    103 Phil 683

  • G.R. No. L-11924 May 16, 1958 - ISIDORO CEBRERO v. JOSE TALAMAN

    103 Phil 687

  • G.R. No. L-8776 May 19, 1958 - PEOPLE OF THE PHIL. v. ANTONIO CRUZ

    103 Phil 693

  • G.R. No. L-11539 May 19, 1958 - ARING BAGOBA v. ENRIQUE A. FERNANDEZ

    103 Phil 706

  • G.R. No. L-11305 May 21, 1958 - DOMINADOR P. CANLAS, ET AL. v. REPUBLIC OF THE PHIL.

    103 Phil 712

  • G.R. No. L-12375 May 21, 1958 - REPUBLIC OF THE PHIL. v. ALTO SURETY & INSURANCE CO.

    103 Phil 717

  • G.R. No. L-8317 May 23, 1958 - GOVERNMENT OF THE PHILIPPINES v. JUAN ABAD, ET AL.

    103 Phil 725

  • G.R. No. L-10286 May 23, 1958 - LUIS E. ARRIOLA v. REPUBLIC OF THE PHIL.

    103 Phil 730

  • G.R. No. L-10704 May 23, 1958 - SIMEON TAN LIM v. REPUBLIC OF THE PHIL.

    103 Phil 736

  • G.R. No. L-11036 May 23, 1958 - PEOPLE OF THE PHIL. v. FLORENTINO TOLENTINO

    103 Phil 741

  • G.R. No. L-11060 May 23, 1958 - A. U. VALENCIA & Co. v. HERMINIA C. LAYUG, ET AL.

    103 Phil 747

  • G.R. No. L-11152 May 23, 1958 - BENITO CO v. REPUBLIC OF THE PHIL.

    103 Phil 750

  • G.R. No. L-11442 May 23, 1958 - MANUELA T. VDA. DE SALVATIERRA v. LORENZO C. GARLITOS

    103 Phil 757

  • G.R. No. L-11504 May 23, 1958 - ELISEO SAULOG v. N. BAENS DEL ROSARIO

    103 Phil 765

  • G.R. No. L-7451 May 26, 1958 - HACIENDA LUISITA v. BOARD OF TAX APPEALS

    103 Phil 770

  • G.R. No. L-10610 May 26, 1958 - PEOPLE OF THE PHIL. v. ERNESTO SILVELA

    103 Phil 773

  • G.R. No. L-11361 May 26, 1958 - PEOPLE OF THE PHIL. v. FELIX SEMAÑADA

    103 Phil 790

  • G.R. No. L-8190 May 28, 1958 - GONZALO GARCIA v. CONSOLACION MANZANO

    103 Phil 798

  • G.R. No. L-9328 May 28, 1958 - PEOPLE OF THE PHIL. v. AMBROSIO PAUNIL, ET AL.

    103 Phil 804

  • G.R. No. L-10322 May 28, 1958 - GOVERNMENT OF THE PHILIPPINES v. JACINTA ALVAREZ

    103 Phil 816

  • G.R. No. L-10574 May 28, 1958 - PANAY ELECTRIC CO. v. COLLECTOR OF INTERNAL REVENUE, ET AL.

    103 Phil 819

  • G.R. No. L-10931 May 28, 1958 - FLORENClA R. SORIANO v. ONG HOO

    103 Phil 829

  • G.R. No. L-10972 May 28, 1958 - IN RE: PERFECTO GOTAUCO v. REPUBLIC OF THE PHIL.

    103 Phil 834

  • G.R. No. L-10989 May 28, 1958 - PONCIANO GACHO v. SERGIO OSMEÑA

    103 Phil 837

  • G.R. No. L-11112 May 28, 1958 - PHILIPPINE NATIONAL BANK v. LUZON SURETY COMPANY

    103 Phil 853

  • G.R. No. L-11271 May 28, 1958 - PAZ TY SIN TEI v. JOSE LEE DY PIAO

    103 Phil 858

  • G.R. No. L-11311 May 28, 1958 - MARTA C. ORTEGA v. DANIEL LEONARDO

    103 Phil 870

  • G.R. No. L-11412 May 28, 1958 - MAURICIA VDA. DE VILLANUEVA v. MONTANO A. ORTIZ

    103 Phil 875

  • G.R. No. L-11427 May 28, 1958 - DIMAS REYES v. FIDEL D. DONES

    103 Phil 884

  • G.R. No. L-11491 May 28, 1958 - DIRECTOR OF LANDS v. BIENVENIDA JOCSON LAGNITON

    103 Phil 889

  • G.R. No. L-11538 May 28, 1958 - COMMISSIONER OF CUSTOMS, ET AL. v. JEA COMMERCIAL, ET AL.

    103 Phil 894

  • G.R. No. L-11640 May 28, 1958 - CLAUDIO DEGOLLACION v. LI CHUI

    103 Phil 904

  • G.R. No. L-11744 May 28, 1958 - PILAR GIL VDA. DE MURCIANO v. AUDITOR GENERAL

    103 Phil 907

  • G.R. No. L-12196 May 28, 1958 - ASSISTANT PROVINCIAL FISCAL OF BATAAN v. AMBROSIO T. DOLLETE

    103 Phil 914

  • G.R. Nos. L-12214-17 May 28, 1958 - MALIGAYA SHIP WATCHMEN AGENCY v. ASSOCIATED WATCHMEN AND SECURITY UNION (PTWO)

    103 Phil 920

  • G.R. No. L-12222 May 28, 1958 - UNIVERSITY OF SAN AGUSTIN v. COURT OF INDUSTRIAL RELATIONS

    103 Phil 926

  • G.R. No. L-12289 May 28, 1958 - LIM SIOK HUEY v. ALFREDO LAPIZ

    103 Phil 930

  • G.R. No. L-12348 May 28, 1958 - MARIANO CORDOVA v. GREGORIO NARVASA

    103 Phil 935

  • G.R. No. L-13069 May 28, 1958 - JOVENCIO A. REYES v. COMMISSION ON ELECTIONS, ET AL.

    103 Phil 940

  • G.R. No. L-12287 May 29, 1958 - PEOPLE OF THE PHIL. v. FORTUNATO ORTIZ, ET AL.

    103 Phil 944

  • G.R. No. L-7955 May 30, 1958 - JOAQUIN LOPEZ v. ENRIQUE P. OCHOA

    103 Phil 950

  • G.R. No. L-8439 May 30, 1958 - CO CHO CHIT v. HANSON, ORTH & STEVENSON, INC., ET AL.

    103 Phil 956

  • G.R. No. L-10642 May 30, 1958 - IN RE: ALFREDO ONG v. REPUBLIC OF THE PHIL.

    103 Phil 964

  • G.R. Nos. L-10837-38 May 30, 1958 - ASSOCIATED INSURANCE & SURETY COMPANY v. ISABEL IYA

    103 Phil 972

  • G.R. No. L-10952 May 30, 1958 - PEOPLE OF THE PHIL. v. BENIGNO V. LINGAD

    103 Phil 980

  • G.R. No. L-11073 May 30, 1958 - MELECIO ARCEO v. ANDRES E. VARELA

    103 Phil 990

  • G.R. No. L-11374 May 30, 1958 - PEOPLE OF THE PHIL. v. DIOSCORO PINUILA

    103 Phil 992

  • G.R. No. L-11444 May 30, 1958 - VICENTE ROULLO v. MARGARITO LUMAYNO

    103 Phil 1004

  • G.R. No. L-11498 May 30, 1958 - PEOPLE OF THE PHIL. v. RUBEN J. RODRIGUEZ

    103 Phil 1008

  • G.R. Nos. L-11531-33 May 30, 1958 - MARIA CONCEPCION v. PAYATAS ESTATE IMPROVEMENT CP. INC.

    103 Phil 1016

  • G.R. No. L-12053 May 30, 1958 - ROBERTA C. DIAZ v. JESUS Y. PEREZ

    103 Phil 1023

  • G.R. No. L-12081 May 30, 1958 - LORENZO LERMA v. VICTORIANO L. REYES, ET AL.

    103 Phil 1027

  • G.R. No. L-12530 May 30, 1958 - CONSOLIDATED LABOR ASSOCIATION OF THE PHILIPPINES v. HERMOGENES CALUAG

    103 Phil 1032

  • G.R. No. L-12567 May 30, 1958 - TAN GIN SAN v. ROSALIA A. TAN CARPIZO

    103 Phil 1042

  •  





     
     

    G.R. No. L-10989   May 28, 1958 - PONCIANO GACHO v. SERGIO OSMEÑA<br /><br />103 Phil 837

     
    PHILIPPINE SUPREME COURT DECISIONS

    EN BANC

    [G.R. No. L-10989. May 28, 1958.]

    PONCIANO GACHO, ET AL., Petitioners, v. HON. SERGIO OSMEÑA, JR., ETC., ET AL., Respondents.

    M. Jesus, Cuenco, Antonio Abad Tormis and Honorato S. Hermosisima, for Petitioners.

    Cebu City Fiscal, Quirico del Mar and Briones & Pascual for Respondents.


    SYLLABUS


    1. ADMINISTRATIVE LAW; PUBLIC OFFICERS; DETECTIVES; TRANSFER OF ITEM TO ANOTHER DIVISION OF DEPARTMENT; EFFECT OF. — The budget of the City of Cebu contained, under the heading of Police Department, Item No. 22 for 71 detectives. This item was split in Ordinance No. 188, passed the next fiscal year, into two items, namely, Item No. 19 for 38 patrolmen and Item No. 23 for 33 detectives. Item No. 19 explicitly declares that it was merely transferred from the aforementioned Item No. 22. Query: Whether the use of the term patrolmen in Ordinance No. 188 in lieu of detectives, indicate the intent to abolish said 38 positions. Held: To "transfer" is to convey something; to move or to cause it to pass from one place to another. That which is transferred must be, therefore, something in existence, for that which does not exist cannot be conveyed, moved or caused to pass from one place to another. Upon the other hand, to "abolish" is to do away with, to annul, abrogate or destroy completely. As a consequence, what has been abolished ceases to exist or disappears, and, hence, it cannot be "transferred." Prima facie, therefore, said Item No. 19 of Ordinance No. 188 does not connote abolition of the thirty-eight (38) positions of "detectives" therein alluded to. On the contrary, the "transfer" of the item for said positions to another section, branch or division of the police department, suggests the retention and preservation of said positions.

    2. ID.; ID.; ID.; ID.; ORDINANCE EFFECTING TRANSFER IN VIOLATION OF CHARTER, NULL AND VOID. — Assuming that the police force needed more patrolmen, an ordinance is, and was, unnecessary, either to detail temporarily, or to transfer permanently, a member of the secret service division to the uniform division because, by express provision of Section 9(e) of the City Charter, the chief of police may transfer the necessary number of detectives from the secret service division to the uniformed division. This the officers of the City must be aware of, not only because they are presumed to be familiar with the Charter, but, also, because said officer have the services of a City Fiscal and a staff of lawyers to advise them thereon. Ordinance No. 188 could have had no other purpose, therefore, than to cloak a device to remove the incumbents of the positions in question and to circumvent the constitutional and statutory provisions tending to protect their tenure of office, as well as to defeat the final judicial decrees directing the reinstatement of the petitioners herein. In such case, the pertinent provision of Ordinance No. 188 would be null and void.


    D E C I S I O N


    CONCEPCION, J.:


    Prior to May 26, 1956, the above-named twenty-seven (27) petitioners held positions, under permanent appointments, as detectives in the Police Department of the City of Cebu, with a compensation of P1,440 per annum. They were, also, insured under the Government Service Insurance System. Twenty (20) of them are civil service eligibles. Their names, length of service and efficiency ratings are:chanrob1es virtual 1aw library

    Length of Efficiency

    Name Service Ratings

    "1. P. Gacho 9 years 90%

    2. L. Alfafara 8 years 80%

    7 months

    3. V. L. Abella 10 years 90%

    9 months

    4. C. Alejandro 10 years Suspended

    3 months

    5. Roque Caballes 9 years 89%

    8 months

    6. Jose Almeda 8 years 87%

    2 months

    7. Lucio Alforque 9 years 82%

    8 months

    8. N. Faunillan 8 years 86%

    1 months

    9. Herminio Solon 9 years 90%

    8 months

    10. Primo Samson 9 years 89%

    8 months

    11. Romeo Colina 1 years 84%

    9 months

    12. Rafael Galan 9 years 84%

    10 months

    13. T. Daclan 9 years 85%

    8 months

    14. V. Atillo 5 years 87%

    5 months

    15. Daniel Datan 15 years 85%

    10 months

    16. D. Deiparine 9 years 88%

    8 months

    17. E. Delgado 9 years 85%

    8 months

    18. Romulo Matela 9 years 87%

    8 months

    19. M. Tenchavez 9 years 83%

    20. Jose Torres 8 years 84%

    5 months

    The rest have no civil service eligibility. Their names, length of service and efficiency ratings follow:chanrob1es virtual 1aw library

    Length of Efficiency

    Name Service Ratings

    "1. Antonio Echivarre 9 years 90%

    3 mos. 15 days

    2. Miguel Cabaral 9 years 85%

    9 months

    3. Natalio Navarro 2 years 85%

    2 months

    4. Balbino Nadela 15 years 82%

    5 months

    5. Ciriaco Sasada 9 years 90%

    8 months

    6. Cornelio Laborte 9 years 85%

    8 months

    7. Isidro Ramos 3 years 90%

    4 months

    In 1953, the Mayor of Cebu dismissed, among others, twenty (20) of herein petitioners, who were subsequently reinstated, however, in compliance with final judgments of competent courts, declaring such dismissal illegal, in the following cases:chanrob1es virtual 1aw library

    a. Mission, et al v. Vicente del Rosario, Et Al., * G. R. No. L- 6754 of the Supreme Court (decided on February 26, 1954; 50 Off. Gaz., 1571, as regards Lorenzo Alfafara, Vicente L. Abella, Roque Caballes, Lucio Alforque, Antonio Echivarre, Primo Samson, Rafael Galan, Tranquilino Daclan, Victoriano Atillo, Daniel Datan, Dionisio Deiparine, Epifanio Delgado, Cornelio Laborte, Romulo Matela, Melchor Tenchavez and Ponciano Gacho;

    b. Salvador Saavedra, Et. Al. v. Vicente del Rosario, Civil Case No. R-3153 of the Court of First Instance of Cebu (decided on March 22, 1954), as to Balbino Nadela;

    c. Jose Almeda v. Vicente del Rosario, Et Al., Civil Case No. R- 3214 of the same court (decided on December 20, 1954), as to Jose Almeda;

    d. Miguel Cabaral v. Vicente del Rosario, Et Al., Civil Case No. R-3161 of said court (decided on November 26, 1954), as to Miguel Cabaral; and

    e. Rodriguez, Et. Al. v. Del Rosario, Et Al., * G. R. No. L-6715 of the Supreme Court (decided on October 30, 1953; 49 Off. Gaz., 5427), as to Nicasio Faunillan.

    On February 9, 1955, the Municipal Board of Cebu approved Ordinance No. 188 thereof, appropriating funds for the operation of the City of Cebu during the fiscal year 1954-1955. Items 19 and 28 of said Ordinance read:jgc:chanrobles.com.ph

    "19. Thirty-eight Patrolmen at P1,440

    per annum each (transferred from

    Seventy-one Detectives) P54,720.00

    "28. Thirty-three Detectives at P1,440.00

    per annum each (from Seventy-one

    Detectives at P1,440. — per annum each) 47,520.00"

    Referring to this Ordinance, the Department of Finance in a communication dated June 14, 1955, stated:jgc:chanrobles.com.ph

    "Likewise, no objection is offered to the changes in designation of certain positions and the abolition of sixteen positions of immunization sanitary inspectors provided no one, especially a civil service eligible, will be prejudiced of Executive Order No. 506, dated September 12, 1932 and provincial Circular (Unnumbered) dated January 11, 1952 of the Office of the President, both bearing in part on the abolition of positions in an office."cralaw virtua1aw library

    Owing to the failure of the Municipal Board of Cebu City to enact a new budget for the fiscal year 1955-1956, the appropriation incorporated in said Ordinance No. 188 was deemed reenacted for that fiscal year (C.A. No. 58, sec. 15). On May 12, 1956, respondent City Mayor wrote to petitioners herein identical letters (Annexes I and I-1 to I-24) advising them that their positions as detectives had been abolished by said Ordinance No. 188 "effective immediately" and at the same time enclosing therewith their appointments as patrolmen, effective May 16, 1956, but "good until revoked" (Annexes J and J-1 to J-24). Petitioners refused to accept these appointments, in the belief, according to their petition (par. 18 of the original petition; par. 17 of their amended petition) "that this was another scheme to effect their removal and a devise to go around the provisions of Republic Act No. 557 and other laws, executive orders, regulations and circulars, since, as already mentioned above, 20 of said petitioners had already been victims of illegal mass dismissals, but were reinstated by judicial authority." However, the City Auditor and City Treasurer of Cebu City refused, and still refuse, to authorize payment and to pay the salaries of petitioners herein since May 16, 1956, copies of said letters Annexes I and I-1 to I-24 having been furnished said officers. Inasmuch as respondent City Mayor refused to reconsider his action as regards petitioners herein, the latter instituted the present case against the City Mayor, the Municipal Board, the City Auditor, the City Treasurer and the Chief of Police of the City of Cebu, as well as the City of Cebu itself. The latter was, subsequently, excluded as respondent, in an amended petition thereafter filed by petitioners herein. After setting forth the foregoing facts and alleging that their aforementioned dismissal is illegal and violative of Article XII, section 4, of the Constitution, section 694 of the Revised Administrative Code, Executive Orders Nos. 506 (dated September 12, 1934) and 175 (dated November 11, 1938), and unnumbered Provincial Circulars issued by the President of the Philippines on January 11, 1952 and April 3, 1954; that petitioners have thus been excluded from the use and enjoyment of their positions; and that respondents have unlawfully neglected the performance of an act which the aforementioned laws, executive orders and circulars specially enjoin as a duty resulting from their office, by separating the petitioners from the service, petitioners pray this Court in their amended petition:jgc:chanrobles.com.ph

    "(A) Pending final determination of this case:chanrob1es virtual 1aw library

    (1) To issue a preliminary mandatory injunction restoring the petitioners to their positions, and directing the respondents City Treasurer and City Auditor to pay their salaries;

    (2) To fix the bond for the preliminary mandatory injunction and to authorize any Judge of the Court of First Instance of Cebu to approve said bond in such amount as this Honorable Court may determine; and further directing that upon approval of said bond, petitioners be restored and their salaries paid; and

    "(B) After hearing:chanrob1es virtual 1aw library

    (1) To declare the abolition of the position and/or the removal and/or the transfer of said petitioners to the uniformed division as made with grave abuse of discretion and/or as null and void and without any force and effect whatsoever;

    (2) To make the preliminary mandatory injunction permanent and/or order the respondents to reinstate the petitioners to their positions as detectives in the police department of the City of Cebu with back salaries from May 16, 1956, until they are restored to their positions;

    (3) To order the respondent City Mayor Sergio Osmeña, Jr., to countermand his advices ANNEXES ‘I’ to ‘I-24’ to the petitioners and to restore them to their positions;

    (4) To order the Municipal Board to set aside such amount as correspond to the salaries of petitioners;

    (5) To order the City Auditor to pass in audit, and the City Treasurer to pay, the salaries due to petitioners from May 16, 1956 until they are restored;

    (6) To order respondent City Mayor to pay the costs of this action and, in the alternative, to order the respondent City Mayor to pay the petitioners their back salaries;

    (7) To grant petitioners such other remedies and reliefs as are just and equitable in the premises."cralaw virtua1aw library

    In their answer, respondents alleged that the word "permanent" does not appear in the appointments originally extended to petitioners herein; that the City of Cebu may validly abolish old positions and create new ones; that Ordinance No. 188 had lawfully abolished the old positions of petitioners herein as detectives in the Police Department of Cebu City; that petitioners were not removed from office, and, hence, may invoke, neither the Constitution, nor Republic Act No. 557, nor section 694 of the Revised Administrative Code, which are inapplicable; that respondent City Mayor is clothed with authority to freely choose the men to fill up the newly created positions of policemen of the City of Cebu; that, in the legitimate exercise of such authority, said respondent extended new appointments to the petitioners, thus believing his alleged intent to circumvent the laws, executive orders and circulars above mentioned; that in acting as he did, respondent City Mayor merely followed the opinion given by the City Fiscal, the City Auditor and the City Treasurer of Cebu; and that by petitioners’ failure to accept said new appointments, they had "forfeited and lost their new positions in the uniformed division" of the police department of Cebu.

    Pursuant to the Charter thereof (C.A. No. 58, as amended), the City of Cebu shall have, and has, a police department, with "a chief of police who shall have charge of the police department and everything pertaining thereto, including the organization, government, discipline, and disposition of the city police and detective force" (Sec. 32), and "an assistant chief of police whose duties shall be to act as chief of police in the absence or inability to act of the chief of police, and under the direction of such chief of police to look after the discipline of the police force and to perform such other duties as may be imposed upon him by the chief of police or prescribed by law or ordinance" (Sec. 33). There shall, also, be, in the City of Cebu, "a chief of secret service who shall, under the chief of police, have charge of the detective work of the department and of the detective force of the city, and shall perform such other duties as may be assigned to him by the chief of police or prescribed by law, or ordinance" (Sec. 34). The powers and duties of the chief of police, assistant chief of police and chief of secret service, as well as those of the members of the city police and detective force, are set forth in Section 35, reading:jgc:chanrobles.com.ph

    "The Mayor, the chief and assistant chief of police, the chief of the secret service, and all officers and members of the city police and detective force shall be peace officers. Such peace officers are authorized to serve and execute all processes of the Municipal Court and criminal processes of all other courts to whomsoever directed, within the jurisdictional limits of the city or within the police limits as hereinbefore defined; within the same territory, to pursue and arrest, without warrant, any person found in suspicious places or under suspicious circumstances reasonably tending to show that such person has committed, or is about to commit, any crime or breach of the peace; to arrest or cause to be arrested, without warrant, any offender when the offense is committed in the presence of a peace officer or within his view; in such pursuit or arrest to enter any building, ship, boat, or vessel, or take into custody any person therein suspected of being concerned in such crime or breach of the peace, and any property suspected of having been stolen; and to exercise such other powers and perform such other duties as may be prescribed by law or ordinance. They shall detain an arrested person only until he can be brought before the proper magistrate. Whenever the Mayor shall deem it necessary, to avert danger or to protect life and property, in case of riot, disturbance, or public calamity, or when he has reason to fear any serious violation of law and order, he shall have power to swear in special police, in such numbers as the occasion may demand. Such special police shall have the same powers while on duty as members of the regular force."cralaw virtua1aw library

    Having these provisions in mind, let us now consider the main issue in this case, namely: Have the positions held by petitioners herein, as members of the police department of the City of Cebu, been abolished by Ordinance No. 188?

    The 1953-1954 budget of the City of Cebu for the fiscal year 1953-1954, Ordinance 167 thereof (Annex 11), contained, under the heading of Police Department, the following item:jgc:chanrobles.com.ph

    "22. Seventy-one detectives at

    P1,440.00 each per annum P102,240.00"

    This item was split in Ordinance No. 188 into two (2) items, namely:jgc:chanrobles.com.ph

    "19. Thirty-eight Patrolmen at

    P1,440 per annum each

    (transferred from Seventy-one

    Detectives) P54,720.00

    "28. Thirty-three Detectives at

    P1,440.00 per annum each

    (from Seventy-one Detectives

    at P1,440. — per annum each) P47,520.00"

    It will be noted that Item No. 19, for thirty-eight (38) patrolmen at P1,440.00 per annum each, explicitly declares that it was merely "transferred" from the aforementioned Item No. 22 in Ordinance No. 167 for seventy-one (71) detectives. Now to "transfer" is to convey something; to transport, to move or to cause it to pass from one place to another. That which is transferred must be, therefore, something in existence, for that which does not exist cannot be transported, conveyed, moved or caused to pass from one place to another. Upon the other hand, to "abolish" is to do away with, to annul, abrogate or destroy completely. As a consequence, what has been abolished ceases to exist or disappears, and, hence, it cannot be "transferred." Prima facie, therefore, said Item No. 19 of Ordinance No. 188 does not connote abolition of the thirty-eight (38) positions of "detectives" therein alluded to. On the contrary, the transfer of the item for said positions to another section, branch or division of the police department, suggests the retention and preservation of said positions.

    Does the use of the term "patrolmen" in Ordinance No. 188 in lieu of "detectives", indicate the intent to abolish said thirty-eight (38) positions? Regardless of the negative implication of the term "transfer", an affirmative answer would, perhaps, have been possible if the powers and duties attached by law to the position of patrolmen, were legally different from those vested in detectives. However, the above-quoted section 35 of the Charter of Cebu assigns the same power and duties to both. Hence, in Mission v. Del Rosario (supra), we declared that "both detectives and policemen perform common functions and duties, and both belong to the police department," end the communication of the Department of Finance of June 14, 1955 (Annex G) approving Ordinance No. 188, referred to Item No. 19 thereof as involving a "change of designation", as distinguished from "the abolition of sixteen (16) positions of immunization sanitary inspectors . . . ." In other words, the language used in said Item No. 19 of Ordinance No. 188 indicates the intent to maintain the positions therein referred to, although in another branch of the same police department of Cebu.

    This was, evidently, what the framers of Ordinance No. 188 had in mind, for the administration that approved it, in 1955, did not declare that the positions held by petitioners had been abolished, and, instead, retained them in their aforesaid positions without extending to them new appointments. Such contemporaneous interpretation given by those responsible for the enactment of said Ordinance is strongly indicative of the intent of its authors and refutes respondents’ pretense.

    The cases of Manalang v. Quitoriano, * G. R. No. L-6898 (decided on April 30, 1954), and Ocampo v. Secretary of Justice, G. R. No. L- 7910 (decided on January 18, 1955), cited by respondents, are not in point. The last case involved the constitutionality of section 3 of Republic Act No. 1186, expressly abolishing "all existing positions of Judges-at-Large and Cadastral Judges." There is no similar provision in the case at bar. What is more, the provision in Ordinance No. 188 transferring the item for thirty-eight (38) detectives suggests the retention — not the abolition — of the positions of said detectives.

    Besides, in the Ocampo case, seven (7) members of this Court or a clear majority thereof voted to declare said section 3 of Republic Act No. 1186 unconstitutional. Only (3) Justices (the Chief Justice, Mr. Justice Reyes [A. ], and Mr. Justice Labrador) voted to uphold the legality of said provision. Mr. Justice Padilla voted with the majority on the lack of power of Congress to abolish positions of Judges of First Instance, on which there were, therefore, eight (8) votes, or those required to declare a law unconstitutional. However, he believed that the law creating the positions of Judges-at-Large and Cadastral Judges "offends against section 7, Article VIII, of the Constitution." being, in his opinion unconstitutional, said positions were, from his viewpoint, legally non-existent. In other words, he, in effect, maintained that section 3 of Republic Act No. 1186 did not abolish any position in the bench, and that it merely made a formal declaration of such non-existence.

    So, too, the Manalang case involved the interpretation of Republic Act No. 761, which "expressly abolished the Placement Bureau," of which Manalang was Director. As already adverted to, there is, in the present case, not only no express abolition, but, also, an implied retention, of the positions in dispute herein. Although the functions of the Placement Bureau were transferred to the National Employment Service created in said Act, we held that the latter office is "different and distinct" from the former, inasmuch as the National Employment Service was given some functions not vested in said Bureau or any other office. In the case at bar, the powers and duties conferred by law upon the uniformed division and the detectives of the Police Department of the City of Cebu are one and the same. Further more, Manalang admitted-in-fact, he alleged — that the position of Commissioner of the National Employment Service necessitated a "new appointment", which is denied by petitioners herein.

    The local precedent involving a situation analogous to that of petitioners herein is that of Brillo v. Enage, * G. R. No. L-7115 (decided on March 30, 1954), in which we held that the justice of the peace of the municipality of Tacloban, which was converted into a city, had a right to preside, without a new appointment, the municipal court of Tacloban, there having been, not an abolition of the justice of the peace court of Tacloban, but merely a change of name thereof. Verily,

    "A statute, although purporting to abolish municipal office, cannot have the effect of removing officers holding under the city charter when the act restores the offices under another name" (43 C. J. p. 601, citing Malone v. Williams, 118 Tenn. 390, 103 S.W. 798, 121 Am SR 1002.)

    "An ordinance merely changing the name of an incumbent’s position in the city employ does not create a new position requiring a new appointment." (43 C.J., sec. 976, p. 600, citing Gilmur v. Seattle, 124 p. 919.)

    Moreover, Ordinance No. 188 transferred the item for thirty-eight (38) detectives to the patrolmen division, but, it did not particularize what positions, from among the seventy-one (71) detectives then in the service, were to be affected by the transfer. Respondents seemingly assume that the power to identify said positions has been given to the Mayor. This would imply, however, a grant of blanket authority to the local executive, without any qualification or standard whatsoever to guide him in the exercise of such authority or to indicate the limits thereof. Thus, respondents’ pretense is premised upon a supposed delegation of legislative power which — even if meant to be made — would be undue and illegal.

    Assuming, however, that Ordinance No. 188 proposed to abolish the positions of thirty-eight (38) detectives whose items were transferred to the division of patrolmen, what was the reason therefor?

    It will be recalled that, in 1953, the Mayor of Cebu City dismissed a good many members of the secret service force thereof, upon the theory that they held primarily confidential positions, from which they could be ousted at the pleasure of the Mayor. Most of the detectives concerned contested judicially the action of the Mayor, and some of these suits reached the Supreme Court which consistently sustained the contestants, nullified their dismissal and ordered their reinstatement. The first decision of this Court thereon was rendered on October 30, 1953, in Rodriguez v. Del Rosario (supra), which was followed, on February 26, 1954, in Mission, Et. Al. v. Del Rosario, Et. Al. (supra). As a consequence, the Court of First Instance of Cebu was constrained to adhere to these precedents, in its following cases, namely: Civil Case No. R-3153, entitled, "Saavedra v. Del Rosario," decided on March 22, 1954; Civil Case No. R-3161, entitled "Miguel Cabaral v. Del Rosario", decided on November 26, 1954; and Civil Case No. R-3214, entitled "Jose Almeda v. Del Rosario", decided on December 20, 1954. The detectives in whose favor these decisions had been rendered had to be, and were, reinstated, as directed thereon. Less than two (2) months after the rendition of the last decision, or on February 9, 1955, Municipal Ordinance No. 188 was approved, with the item transferring the appropriation for thirty-eight (38) detectives, at P1,440 per annum each, to the division of patrolmen, this transfer to take effect retroactively on July 1, 1954.

    Why was this transfer made? Was it because the police force needed more patrolmen, as respondents say? Such could not be the reason, because the chief of police could have assigned thirty-eight (38) detectives to the uniformed division, without an amendment to the city budget. As correctly stated by the City Treasurer of Cebu, whose opinion is invoked by respondent City Mayor:jgc:chanrobles.com.ph

    "The chief of police may assign any member of the police force including detectives to any duty whenever the exigency of the service so demands, and where in his judgment it is for the food of public service. He has control and supervision of the detectives, he may assign them to any duty under his department." (See Annex 5 to respondent’s answer.)

    In fact, pursuant to section 32 of Commonwealth Act No. 58, said chief of police has "charge of the police department and everything pertaining thereto, including the . . . disposition of the city police and detective force." Thus, for instance, on May 16, and 21, 1956, former detectives Julian Bercede, Celestino Bigno, Lamberto Morre, Emilio Pardinilla and Enrique Pareja, who, like petitioners herein, had been given termination orders, after accepting appointments as patrolmen, in the uniformed division, were reassigned by the Chief of Police of Cebu City to the secret service division, together with patrolmen Patricio Cabalda, Terencio Garciano and Manuel Lucenario, despite the fact that, under Ordinance No. 188, their items belong to the uniformed division of said department (see Annexes L and L-1 to L-3, to the amended petition).

    Was the transfer of item in question made in Ordinance No. 188 because respondent City Mayor felt that the need of additional patrolmen was more or less permanent? Neither could this be the true reason therefor, because said City Mayor may transfer the necessary number of detectives from the secret division to the uniformed division, under section 9 (e) of Commonwealth Act No. 58, reading:jgc:chanrobles.com.ph

    ". . . The Mayor may, in the interest of the service and with the approval of the Secretary of Interior first had, transfer officers and employees not appointed by the President of the Philippines from one section, division or service to another section, division or service within the same department, without changing the compensation they receive.

    Thus, the enactment of an Ordinance is, and was, unnecessary, either to detail temporarily, or to transfer permanently, a member of the secret service division to the uniformed division of the Police Department of the City of Cebu. At the same time, the officers of said city must be aware of this, not only because they are presumed to be familiar with the Charter thereof, but, also, because said officers have the services of a City Fiscal and a staff of lawyers to advise them thereon. Now, then, if knowing that, in order to increase the number of patrolmen, by shifting to the uniformed division the corresponding number of detectives, an ordinance is unnecessary, what other purpose could Ordinance No. 188 have had in providing for the transfer of item in question — on the assumption that the same involves an abolition of positions — than to cloak a devise to remove its incumbents (in whom the City Mayor had allegedly lost confidence) and to circumvent the constitutional and statutory provisions tending to protect their tenure of office, as well as to defeat the final judicial decrees directing the reinstatement of petitioners herein, which must have caused no little embarrassment to the city officers concerned? In such case, the pertinent provision of Municipal Ordinance No. 188 would be null and void.

    "But where an ordinance purporting to abolish such an office is only a device for the purpose of removing the incumbent while the office practically still remains in existence, it is an evasion of the law, and void." (43 C.J. see. 978, p. 600.)

    "But the right to abolish an unnecessary position cannot be used to conceal the discharge of an employee in violation of the civil service law or to circumvent the effect of a decree of the court restraining the city from removing the incumbent." (43 C. J. sec. 979, p. 600.)

    ". . . Tenure of office statutes and civil service statutes do not prevent a bona fide abolition of the office by the municipality. Moreover, statutes to protect the tenure of office of veteran soldiers and sailors will not prevent the abolition of municipal offices. In such cases, however, the office must be abolished in good faith; and if immediately after the office is abolished another office is created with substantially the same duties and a different individual is appointed, or if it otherwise appears that the office was abolished for personal or political reasons, the courts will interfere." (37 Am. Jur., 858; Emphasis supplied.)

    Indeed, the item in dispute could not have been prompted by the demands of public service, for the communication to the City Mayor of Cebu, attached to respondents’ answer as Annex 1, shows that the Acting Chief of Police of Cebu City considered that the strength of his secret service division — including the thirty-eight (38) positions of detectives involved in this case — was not sufficient, and that "there is need of having more secret servicemen to take charge of the preventive phase" of the police work in said City. In other words, instead of more patrolmen, what the police department needed was more detectives. This explains why, after the appointment of detectives Bercede, Bigno, Morre, Pardinilla and Pareja as patrolmen, they had to be reassigned to the secret service division, together with patrolmen Cabalda, Garciano and Lucenario.

    Wherefore, judgment is hereby rendered declaring that the positions held by petitioners herein on and before May 15, 1956, were not abolished by Municipal Ordinance No. 188; that petitioners were entitled to remain in office, after said date; that they should be reinstated to their aforementioned positions and allowed to continue holding the same, with all rights appurtenant thereto, in accordance with law; and that they are entitled to collect the corresponding compensation from May 16, 1956, with costs against respondent City Mayor. It is so ordered.

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

    Endnotes:



    * 94 Phil., 483.

    * 93 Phil., 1070.

    * 94 Phil., 903, 50 Off. Gaz., 2515.

    * 94 Phil., 732, 50 Off. Gaz., [7], 3100.

    G.R. No. L-10989   May 28, 1958 - PONCIANO GACHO v. SERGIO OSMEÑA<br /><br />103 Phil 837


    Back to Home | Back to Main

     

    QUICK SEARCH

    cralaw

       

    cralaw



     
      Copyright © ChanRobles Publishing Company Disclaimer | E-mail Restrictions
    ChanRobles™ Virtual Law Library | chanrobles.com™
     
    RED