De facto officers FELIPE TAYKO vs. NICOLAS CAPISTRANOG.R. No. L-30188, October 2, 1928OSTRAND, J.

:THE CASE: This is a petition for a writ of prohibition enjoining the respondent judge from making cognizance of certain civil and criminal election cases in which the petitioners are parties. THE FACTS: The petitioners allege that Capistrano was appointed judge of the CFI of Oriental Negros, to hold office during good behavior and until he should reach the age of 65 years; that he now has reached that age and, therefore, under the provisions of section 148 of the Administrative Code as amended, is disqualified from acting as a judge of the Court of First Instance. The petitioners further allege that in view of the many election protests and criminal cases for violation of the election law filed in the CFI of Oriental Negros arising in the from the last election, de la Costa was duly designated and acted as auxiliary judge. There was an understanding that de la Costa would hear and take cognizance of all election protests and criminal actions then pending or to filed arising from the said last general election, and that Capistrano would try and hear the ordinary cases pending. Notwithstanding the understanding, Capistrano tried and is still trying to take cognizance of the election protests an criminal actions in said court; declared in open court that he will try the criminal cases for the reason that de la Costa refused to try the same on the ground that the preliminary investigations were held before him, when, in truth and in fact, the d la Costa did not make the statement imputed to him and was and is still willing to try the election protests and criminal cases for violation of the election law pending in the court. Additionally that Capistrano, in spite of the fact that he was holding and is now pretending to hold the office of judge took great interest and active part in the filing of criminal charges against the petitioners to the unjustifiable extent of appointing a deputy fiscal, who then filed the proper informations, when the provincial fiscal refused to file criminal charges against the petitioners for violation of the election law for lack of sufficient evidence to sustain the same. Finally, that Capistrano is neither a judge de jure nor de facto, but that he continues to hold the office of judge and pretends to be duly qualified and acting judge of the said province; and that he has tried, and continues to try, to act as such judge. Hence, this petition. THE ISSUE: Whether or not Capistrano, upon reaching the age of 65, can still continue public office? Is he considered a de facto judge?

THE RULING: Briefly defined, a de facto judge is one who exercises the duties of a judicial office under color of an appointment or election thereto (Brown vs. O'Connell, 36 Conn., 432). He differs, on the one hand, from a mere usurper who undertakes to act officially without any color of right, and on the other hand, from a judge de jure who is in all respects legally appointed and qualified and whose term of office has not expired (State vs. Carroll, 38 Conn., 449; Denny vs. Matton, 2 Allen [Mass.], 361; VanSlyke vs. Farmers' Mut. Fire Ins. Co., 39 Wis., 390).Apart from any constitutional or statutory regulation on the subject there seems to be a general rule of law that an incumbent of an office will hold over after the conclusion of his term until the election and qualification of a successor (22 R. C. L., pp. 554-5). When a judge in good faith remains in office after his title has ended, he is a de facto officer (Sheehan's Case, 122 Mass., 445). Applying the principles stated to the facts set forth in the petition before us, we cannot escape the conclusion that, on the assumption that said facts are true, the respondent judge must be considered a judge de facto. His term of office may have expired, but his successor has not been appointed, and as good faith is presumed, he must be regarded as holding over in good faith. The contention of counsel for the petitioners that the auxiliary judge present in the district must be considered the regular judge seems obviously erroneous. Accordingly, it is a well-established principle, dating from the earliest period and repeatedly confirmed by an unbroken current of decisions, that the official acts of a de facto judge are just as valid for all purposes as those of a de jure judge, so far as the public or third persons who are interested therein are concerned. The principle is one founded in policy and convenience, for the right of no one claiming a title or interest under or through the proceedings of an officer having an apparent authority to act would be safe, if it were necessary in every case to examine the legality of the title of such officer up to its original source, and the title or interest of such person were held to be invalidated by some accidental defect or flaw in the appointment, election or qualification of such officer, or in the rights of those from whom his appointment or election emanated; nor could the supremacy of the laws be maintained, or their execution enforced, if the acts of the judge having a colorable, but not a legal title, were to be deemed invalid. As in the case of judges of courts of record, the acts of a justice de facto cannot be called in question in any suit to which he is not a party. Petition is sustained.

Menzon vs PetillaDate: May 20, 1991Petitioner: Aurelio MenzonRespondents: Leopoldo Petilla and Florencio LunaPonente: Gutierrez JrFacts: On February 16, 1988, by virtue of the fact that no Governor had been proclaimed in the province of Leyte, the Secretary of Local Government Luis Santos designated the Vice-Governor, Leopoldo E. Petilla

asActing Governor of Leyte. On March 25, 1988, Aurelio D. Menzon, a senior member of the SangguniangPanlalawigan was also designated by Secretary Luis Santos to act as the Vice-Governor for the province of Leyte. Menzon took his oath of office before Senator Alberto Romulo. The Provincial Administrator, Tente U. Quintero inquired from the Undersecretary of the DILG as tothe legality of the appointment of the petitioner to act as the Vice-Governor of Leyte. UndersecretaryRubllar stated that since B.P. 337 has no provision relating to succession in the Office of the ViceGovernorin case of a temporary vacancy, the appointment of the petitioner as the temporary Vice- Governor is notnecessary since the Vice-Governor who is temporarily performing the functions of the Governor, couldconcurrently assume the functions of both offices.As a result of the foregoing communications between Tente U. Quintero and Jacinto T. Rubillar, Jr.,the Sangguniang Panlalawigan, in a special session held on July 7, 1989, issued Resolution No. 505 whereit held invalid the appointment of the petitioner as acting Vice-Governor of Leyte. The petitioner throughthe acting LDP Regional Counsel, Atty. Zosimo Alegre, sought clarification from Undersecretary Rubillar, Jr.regarding the June 22, 1989 opinion. Undersecretary Rubillar replied and explained his opinion: On thebasis of the foregoing and considering that the law is silent in case of temporary vacancy, in the Office of the Vice-Governor, it is our view that the peculiar situation in the Province of Leyte, where the electoralcontroversy in the Office of the Governor has not yet been settled, calls for the designation of theSangguniang Member to act as vice-governor temporarily.In view, of the clarificatory letter of Undersecretary Rubillar, the Regional Director of the DILG,Region 8, Resurreccion Salvatierra, on July 17, 1989, wrote a letter addressed to the ActingGovernor of Leyte, Leopoldo E. Petilla, requesting the latter that Resolution No. 505 of the Sangguniang Panlalawiganbe modified accordingly. Despite these several letters of request, the Acting Governor and theSangguniang Panlalawigan, refused to correct Resolution No. 505 and correspondingly to pay thepetitioner the emoluments attached to the Office of Vice-Governor. Thus, petitioner filed before this Court a petition for certiorari and mandamus. The petition sought the nullification of Resolution No. 505 and for the payment of his salary for his services as the acting ViceGovernor of Leyte. In the meantime, however, the issue on the governorship of Leyte was settled and Adelina Larrazabal was proclaimed the Governor of the province of Leyte. Issue: WON there was a vacancy Held: Yes Ratio:The law on Public Officers is clear on the matter. There is no vacancy whenever the office isoccupied by a legally qualified incumbent. A sensu contrario ,

there is a vacancy when there is no personlawfully authorized to assume and exercise at present the duties of the office . Applying the definition of vacancy to this case, it can be readily seen that the office of the Vice-Governor was left vacant when theduly elected Vice-Governor Leopoldo Petilla was appointed Acting Governor. In the eyes of the law, theoffice to which he was elected was left barren of a legally qualified person to exercise the duties of theoffice of the ViceGovernor. There is no satisfactory showing that Petilla, notwithstanding his succession to the Office of theGovernor, continued to simultaneously exercise the duties of the ViceGovernor. The nature of the dutiesof a Provincial Governor call for a full-time occupant to discharge them. More so when the vacancy is for anextended period. Precisely, it was Petilla's automatic assumption to the acting Governorship that resultedin the vacancy in the office of the Vice-Governor. The fact that the Secretary of Local Government wasprompted to appoint the petitioner shows the need to fill up the position during the period it was vacant. The Department Secretary had the discretion to ascertain whether or not the Provincial Governor shoulddevote all his time to that particular office. Moreover, it is doubtful if the Provincial Board, unilaterallyacting, may revoke an appointment made by a higher authority.Issue:WON the Secretary of Local Government had the authority to designate the petitioner. Held:YesRatio: The Local Government Code is silent on the mode of succession in the event of a temporary vacancyin the Office of the Vice-Governor. However, the silence of the law must not be understood to convey thata remedy in law is wanting. The circumstances of the case reveal that there is indeed a necessity for theappointment of an acting Vice-Governor. For about two years after the governatorial elections, there hadbeen no de jure permanent Governor for the province of Leyte, Governor Adelina Larrazabal, at that time,had not yet been proclaimed due to a pending election case before the Commission on Elections. The two-year interregnum which would result from the respondents' view of the law is disfavored asit would cause disruptions and delays in the delivery of basic services to the people and in the propermanagement of the affairs of the local government of Leyte. Definitely, it is incomprehensible that to leavethe situation without affording any remedy was ever intended by the Local Government Code.Under the circumstances of this case and considering the silence of the Local Government Code,the Court rules that, in order to obviate the dilemma resulting from an interregnum created by thevacancy, the President, acting through her alter ego, the Secretary of Local Government, may remedy thesituation. We declare valid the temporary appointment extended to the petitioner to act as the Vice-Governor. The exigencies of public service demanded nothing less than the immediate

appointment of anacting Vice-Governor.It may be noted that under Commonwealth Act No. 588 and the Revised Administrative Code of 1987, the President is empowered to make temporary appointments in certain public offices, in case of any vacancy that may occur. Albeit both laws deal only with the filling of vacancies in appointive positions.However, in the absence of any contrary provision in the Local Government Code and in the best interestof public service, we see no cogent reason why the procedure thus outlined by the two laws may not besimilarly applied in the present case. The respondents contend that the provincial board is the correctappointing power. This argument has no merit. As between the President who has supervision over localgovernments as provided by law and the members of the board who are junior to the vice-governor, wehave no problem ruling in favor of the President, until the law provides otherwise.A vacancy creates an anomalous situation and finds no approbation under the law for it deprives theconstituents of their right of representation and governance in their own local government.In a republican form of government, the majority rules through their chosen few, and if one of them isincapacitated or absent, etc., the management of governmental affairs to that extent, may be hampered.Necessarily, there will be a consequent delay in the delivery of basic services to the people of Leyte if theGovernor or the Vice-Governor is missing. The appointment of the petitioner, moreover, is in full accord with the intent behind the LocalGovernment Code. There is no question that Section 49 in connection with Section 52 of the LocalGovernment Code shows clearly the intent to provide for continuity in the performance of the duties of theViceGovernor. By virtue of the surroundings circumstance of this case, the mode of succession provided forpermanent vacancies may likewise be observed in case of a temporary vacancy in the same office. In thiscase, there was a need to fill the vacancy. The petitioner is himself the member of the SangguniangPanlalawigan who obtained the highest number of votes. The Department Secretary acted correctly inextending the temporary appointment.In view of the foregoing, the petitioner's right to be paid the salary attached to the Office of theVice Governor is indubitable. The compensation, however, to be remunerated to the petitioner, followingthe example in Commonwealth Act No. 588 and the Revised Administrative Code, and pursuant to theproscription against double compensation must only be such additional compensation as, with his existingsalary, shall not exceed the salary authorized by law for the Office of the Vice-Governor.And finally, even granting that the President, acting through the Secretary of Local Government,possesses no power to appoint the petitioner, at the very least, the petitioner is a de facto officer entitledto compensation. There is no denying that the petitioner assumed the Office of the Vice-Governor under

color of aknown appointment. As revealed by the records, the petitioner was appointed by no less than the alter egoof the President, the Secretary of Local Government, after which he took his oath of office before SenatorAlberto Romulo in the Office of Department of Local Government Regional Director Res Salvatierra.Concededly, the appointment has the color of validity. The respondents themselves acknowledged thevalidity of the petitioner's appointment and dealt with him as such. It was only when the controversialResolution No. 505 was passed by the same persons who recognized him as the acting Vice-Governor thatthe validity of the appointment of the petitioner was made an issue and the recognition withdrawn. The petitioner, for a long period of time, exercised the duties attached to the Office of the Vice-Governor. He was acclaimed as such by the people of Leyte. Upon the principle of public policy on whichthe de facto doctrine is based and basic considerations of justice, it would be highly iniquitous to now deny him the salary due him for the services he actually rendered as the acting Vice-Governor of the province of Leyte.