EN BANC

[G.R. No. L-3881. August 31, 1950.]

EDUARDO DE LOS SANTOS , petitioner, vs . GIL R. MALLARE, LUIS P.

TORRES, in his capacity as City Mayor, PANTALEON PIMENTEL, in
his capacity as City Treasurer, and RAFAEL USON, in his capacity as
City Auditor , respondents.

Francisco S. Reyes, for petitioner.

Solicitor General Felix Bautista Angelo and Solicitor Augusto Luciano, for
respondents.
Jose P. Laurel and Abelardo Subido, as amici curiae.

SYLLABUS

1. CONSTITUTIONAL LAW; PUBLIC OFFICERS; CONFLICT BETWEEN

PROVISIONS OF THE CONSTITUTION AND SECTION 245 OF THE REVISED
ADMINISTRATIVE CODE; EFFECT OF. — Section 2545 of the Revised Administrative
Code, giving the Chief Executive power to remove of cers at pleasure is incompatible
with the constitutional inhibition that "No of cer or employee in the Civil Service shall
removed or suspended except for cause as provided bylaw." The two provision are
mutually repugnant and absolutely irreconcilable. One in express terms permits what
the other in similar terms prohibits. Pursuant to section 2 of Article XVI of the
Constitution, we declare that this particular provision has been repealed and has
ceased to be operative from the time the Constitution went into effect.
2. ID.; ID.; ID.; SECTION 2545 OF THE REVISED ADMINISTRATIVE CODE, A
REPEALED LAW. — We are not declaring any part of section 2545 of the Revised Penal
Code unconstitutional. Unconstitutionality, as we understand it, denotes life and vigor,
and unconstitutional legislation presupposes posteriorly in point of time to the
Constitution. It is a statute that "attempts to validate and legalize a course of conduct
the effect of which the Constitution speci cally forbids." (State ex-rel. Marck vs.
Guckenberger, 139 Ohio St. 273; 39 NE [2d] 840.) A law that has been repealed is as
good as if it had never been enacted, and can not, in nature of things contravene or
pretend to contravene constitutional inhibitions. So, unlikely legislation that is passed in
de ance of the Constitution, assertive and menacing, the questioned part 2545 of the
Revised Administrative Code does not need a positive declaration of nullity by the court
to put it out of the way. To all intents and purposes, it is non-existent, outlawed and
eliminated from the statute book by the Constitution itself by express mandate.
3. ID.; CIVIL SERVICE, SCOPE OF. — Article XII of the Constitution which contains
the provisions on Civil Service contemplates the entire Civil Service regardless the
employees embraced therein belong to the classi ed or unclassi ed service the
exception of those positions "which are policy-determining, primarily con dential or
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 highly technical in nature." This theory is confirmed by the enactment of Commonwealth
Act No. 177 on November 30, 1936, to implement article XII of the Constitution.
|Commonwealth Act No. 177 explains Civil Service almost in the identical words of the
Article of the organic law. As a contemporaneous construction, this Act affords an
index to the meaning of Civil Service as conceived by the framers of the Constitution.
5. ID.; ID.; POSITION EXCEPTED FROM MERIT SYSTEM AND REMOVAL FOR
CAUSE; REASON FOR THE EXCEPTION. — Three speci ed classes of positions — policy
determining, primarily con dential and highly technical — are excluded from merit
system and dismissal at pleasure of of cers and employees appointed therein is
allowed by the Constitution. These positions involve the highest degree of con dence,
or are closely bound up with and dependent on other positions to which they are
subordinate, or are temporary in nature. It may truly be said that the good of the service
demands that appointments coming under this category may be terminable at the will
of the of cer who makes them. Every appointment implies con dence, but much more
than ordinary con dence is reposed in the occupant of a position primarily con dential.
The latter phrase denotes not only con dence in the aptitude of the appointee for the
duties of the of ce but primarily close intimacy which insures freedom of intercourse
without embarrassment or freedom from misgivings of betrayals of personal trust or
confidential matters of state.
5. ID.; ID.; ID.; OFFICE OF CITY ENGINEER, NOT EMBRACED IN THE EXCEPTION.
— The of ce of city engineer is neither primarily con dential, policy-determining, nor
highly technical.
6. COURTS; QUESTIONS OF EXPEDIENCY NOT TAKEN INTO ACCOUNT IN THE
INTERPRETATION OF LAWS. — Attention is drawn to supposed inconvenience of trying
the hands of the appointing power in changing and shifting of cers in the unclassi ed
service. Questions of expediency are, of course, beyond the province of the courts to
take into account in the interpretation of laws or the Constitution where the language is
otherwise clear.
7. ID.; ID.; THE WORDS :FOR CAUSE" INTERPRETED. — The phrase "for cause"
(sec. 4 Art. XII, Constitution) in connection with removals of public of cer has acquired
a well-de ned concept. "It means for reasons which the law and sound public policy
recognized as suf cient warrant for removal, that is, legal cause, and not merely causes
which the appointing power in the exercise may deem suf cient. It is implied that
of cers may not be removed at the mere will of those vested with the power of
removal, or without any cause. Moreover, the cause must relate to and affect the
administration of of ce, and must be restricted to something of a substantial nature
directly affecting the rights and interest of the public." (43 Am. Jur., 47, 48.)

DECISION

TUASON , J : p

This is an original action of quo warranto questioning the legality of the

appointment of respondent Gil R. Mallare to the of ce of city engineer for the City of
Baguio which the petitioner occupied and claims to be still occupying. The real issue
however is the legality of the petitioner's removal from the same of ce which would be
the effect of Mallare's appointment if the same be allowed to stand. It is the petitioner's
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 contention that under the Constitution he can not be removed against his will and
without cause. The complaint against the other respondents has to do merely with their
recognition of Mallare as the lawful holder of the disputed of ce and is entirely
dependent upon the result of the basic action against the last-mentioned respondent
(Mallare).
Stripped of details unessential to the solution of the case, the facts are that
Eduardo de los Santos, the petitioner, was appointed City Engineer of Baguio on July
16, 1946, by the President, appointment which was con rmed by the Commission on
Appointments on August 6, and on the 23rd of that month, he quali ed for and began to
exercise the duties and functions of the position. On June 1, 1950, Gil R. Mallare was
extended an ad interim appointment by the President to the same position, after which,
on June 3, the Undersecretary of the Department of Public Works and Communications
directed Santos to report to the Bureau of Public Works for another assignment Santos
refused to vacate the of ce, and when the City Mayor and the other of cials named as
Mallare's co-defendants ignored him and paid Mallare the salary corresponding to the
position, he commenced these proceedings.
The petitioner rests his case on Article XII of the Constitution, section 4 of which
reads: "No of cer or employee in the Civil Service shall be removed or suspended
except for cause as provided by law."
It is admitted in respondents' answer that the City Engineer of Baguio "belongs to
the unclassi ed service." And this Court, in an exhaustive opinion by Mr. Justice
Montemayor in the case of Lacson vs. Romero, 47 Off. Gaz., 1778, involving the of ce
of provincial scal, ruled that of cers or employees in the unclassi ed as well as those
in the classi ed service are protected by the above-cited provision of the organic law.
But there is this difference between the Lacson case and the case at bar: Section 2545
of the Revised Administrative Code, which falls under Chapter 61 entitled "City of
Baguio," authorizes the Governor General (now the President) to remove at pleasure any
of the of cers enumerated therein, one of whom is the city engineer. The rst question
that presents itself is, is this provision still in force?
Section 2 of Article XVI of the Constitution declares that "All laws of the
Philippine Islands shall continue in force until the inauguration of the Commonwealth of
the Philippines; thereafter, such laws shall remain operative, unless inconsistent with
this Constitution, until amended, altered, modi ed, or repealed by the Congress of the
Philippines, . . . ."
It seems plain beyond doubt that the provision of section 2545 of the Revised
Administrative Code, 'he (Governor-General now President) may remove at pleasure any
of the said appointive of cers'" is incompatible with the constitutional inhibition that
"No of cer or employee in the Civil Service shall be removed or suspended except for
cause as provided by law." The two provisions are mutually repugnant and absolutely
irreconcilab]e. One in express terms permits what the other in similar terms prohibits.
The Constitution leaves it to the Congress to provide for the cause of removal,
and it is suggested that the President's pleasure is itself a cause. The phrase "for
cause" in connection with removals of public of cers has acquired a well-de ned
concept. "It means for reasons which the law and sound public policy recognized as
suf cient warrant for removal, that is, legal cause, and not merely causes which the
appointing power in the exercise of discretion may deem suf cient. It is implied that
of cers may not be removed at the mere will of those vested with the power of
removal, or without any cause. Moreover the cause must relate to and affect the
administration of the of ce, and must be restricted to something of a substantial
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 nature directly affecting the rights and interests of the public." (43 Am. Jur., 47, 48.)

Reconsideration of the decision in Lacson vs. Romero as far as of cers in the

unclassi ed service are concerned is urged. It is contended that only of cers and
employees in the classi ed service should be brought within the purview of Article XII
of the Constitution.
Section 1 of this article ordains: "A Civil Service embracing all branches and
subdivisions of the Government shall be provided by law. Appointments in the Civil
Service, except as to those which are policy-determining, primarily con dential or highly
technical in nature, shall be made only according to merit and tness, to be determined
as far as practicable by competitive examination." The rst clause is a de nition of the
scope of Civil Service, the men and women which section 4 protects. It seems obvious
from that de nition that the entire Civil Service is contemplated, except positions
"which are policy-determining, primarily con dential or highly technical in nature." This
theory is con rmed by the enactment of Commonwealth Act No. 177 on November 30,
1936, to implement Article XII of the Constitution. Commonwealth Act No. 177 explains
Civil Service almost in the identical words of that article of the organic law. As a
contemporaneous construction, this Act affords an index to the meaning of Civil
Service as conceived by the framers of the Constitution. "The principle of
contemporaneous construction may be applied to the construction given by the
legislature to the constitutional provisions dealing with legislative powers and
procedure. Though not conclusive, such interpretation is generally conceded as being
entitled to great weight." (U. S. vs. Sprague, 282 U. S., 716; 75 L. ed., 640; 51 S. Ct., 220;
71 A. L. R., 1381; Den ex dem. Murray vs. Hoboken Land & Improv. Co., 18 How. [U. S.],
272; 15 L. ed., 372; Clark vs. Boyce, 20 Ariz., 544; 185 P., 136, citing R. C. L.; 11 Am. Jur
699.) The principle of express mention and implied exclusion may be made use of also
to drive home this point.
We are led to the same conclusion by the existing provisions at the time of the
adoption of the Constitution. Civil Service as embracing both classes of of cers and
employees possessed de nite legal and statutory meaning when the Constitution was
approved. Section 670 of the Revised Administrative Code already provided that
"Persons in the Philippine civil service pertain either to the classi ed or unclassi ed
service," and went on to say that "The classi ed service embraces all not expressly
declared to be in the unclassi ed service." Then section 671 described persons in the
unclassi ed service as "of cers, other than the provincial treasurers and assistant
directors of bureaus or of ces, appointed by the President of the Philippines, with the
consent of the Commission on Appointments of the National Assembly, and all other
of cers of the government whose appointments are by law vested in the President of
the Philippines alone."
The rules of construction inform us that the words used in the constitution are to
be given the sense they have in common use. (Okanogan Indians vs. United States, 279,
U. S., 665; 64 A. L. R., 1434; 73 Law ed., 894.) It has been said that we must look to the
history of the times, examine the state of things existing when the Constitution was
framed and adopted, (Rhode Islands vs. Massachusetts, 12 Pet., 657; 9 Law ed., 1233),
and interprete it in the light of the law then in operation. (Mattox vs. United States, 156,
U. S., 237; 39 Law ed., 409.)
Attention is drawn to supposed inconveniences of tying the hands of the
appointing power in changing and shifting of cers in the unclassi ed service. "If — it is
argued — all important of cers and employees of the government falling within the
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 unclassi ed service as enumerated in section 671 of the Revised Administrative Code
as amended by Commonwealth Act No. 177, may not be removed by the President
except for cause as provided by law, . . . the President would be seriously crippled in the
discharge of the grave duty and responsibility laid upon him by the Constitution to take
care that the laws be faithfully executed."
Questions of expediency are, of course, beyond the province of the courts to take
into account in the interpretation of laws or the Constitution where the language is
otherwise clear. But the argument is, we think, unsound even if the case be approached
from this angle. It contains its own refutation. The Constitution and the law
implementing it afford adequate safeguards against such consequences as have been
painted.
The argument proceeds, contrary to its context, on the assumption that removals
of civil service of cers and employees are absolutely prohibited, which is not the case.
The Constitution authorizes removals and only requires that they be for cause. And the
occasions for removal would be greatly diminished if the injunction of section 1 of
Article XII of the Constitution — that appointments in the civil service shall be made only
according to merit and tness, to be determined as far as practicable by competitive
examination — would be adhered to meticulously in the first place.
By far greater mischiefs would be fomented by an unbridled authority to remove.
Such license would thwart the very aims of the Constitution which are expounded by
Dean Aruego, himself a member of the Constitutional Convention, in the following
remarks copied with approval in Lacson vs. Romero, supra:
"The adoption of the 'merit system' in government service has secured
ef ciency and social justice. It eliminates the political factor in the selection of
civil employees which is the rst essential to an ef cient 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 of ce 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.
"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 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 belongs the spoils' dominated the Federal
Government. The system undermined moral values and destroyed administrative
efficiency.
"Since the establishment of the American Regime in the Philippines we
have enjoyed the bene ts of the 'merit system.' The Schurmann Commission
advocated in its report that 'the greatest care should be taken in the selection of
the of cials for administration. They should be men of the highest character and
tness, and partisan politics should be entirely separated from the government.'
The fth 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 Governor-General after William Taft adopted the
policy of appointing Filipinos in the government regardless of their party
af liation. 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 provision. — 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 accept its
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 guarantee as a permanent institution.
"Separation, suspension, 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 de 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." (II Aruego's Framing of the Constitution, 886, 887, 890.).
As has been seen, three speci ed classes of positions — policy-determining,
primarily con dential and highly technical — are excluded from the merit system and
dismissal at pleasure of of cers and employees appointed therein is allowed by the
Constitution. These positions involve the highest degree of con dence, or are closely
bound up with and dependent on other positions to which they are subordinate, or are
temporary in nature. It may truly be said that the good of the service itself demands
that appointments coming under this category be terminable at the will of the of cer
that makes them.
The office of city engineer is neither primarily confidential, policy-determining, nor
highly technical.
Every appointment implies con dence, but much more than ordinary con dence
is reposed in the occupant of a position that is primarily con dential. The latter phrase
denotes not only con dence in the aptitude of the appointee for the duties of the of ce
but primarily close intimacy which insures freedom of intercourse without
embarrassment or freedom from misgivings of betrayals of personal trust or
con dential matters of state. Nor is the position of city engineer policy-determining. A
city engineer does not formulate a method of action for the government or any of its
subdivisions. His job is to execute policy, not to make it. With speci c reference to the
City Engineer of Baguio, his powers and duties are carefully laid down for him by
section 2557 of the Revised Administrative Code and are essentially ministerial in
character. Finally, the position of city engineer is technical but not highly so. A city
engineer is not required nor is he supposed to possess a technical skill or training in the
supreme or superior degree, which is the sense in which "highly technical" is, we believe,
employed in the Constitution. There are hundreds of technical men in the classi ed civil
service whose technical competence is not lower than that of a city engineer. As a
matter of fact, the duties of a city engineer are eminently administrative in character
and could very well be discharged by non- technical men possessing executive ability.

Section 10 of Article VIII of the Constitution requires that "All cases involving the
constitutionality of a treaty or law shall be heard and decided by the Supreme Court in
banc," and warns that "no treaty or law may be declared unconstitutional without the
concurrence of two-thirds of all the members of the Court." The question arises as to
whether this judgment operates as invalidation of section 2545 of the Revised
Administrative Code or a part of it so as to need at least eight votes to make it
effective. The answer should be in the negative.
We are not declaring any part of section 2545 of the Revised Administrative
Code unconstitutional. What we declare is that the particular provision thereof which
gave the Chief Executive power to remove of cers at pleasure has been repealed by the
Constitution and ceased to be operative from the time that instrument went into effect.
Unconstitutionality, as we understand it, denotes life and vigor, and unconstitutional
legislation presupposes posteriority in point of time to the Constitution. It is a statute
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 that "attempts to validate and legalize a course of conduct the effect of which the
Constitution speci cally forbids (State ex-rel. Mack vs. Guckenberger, 139 Ohio St.,
273; 39 NE. [2d], 840.) A law that has been repealed is as good as if it had never been
enacted, and can not, in the nature of things, contravene or pretend to contravene
constitutional inhibitions. So, unlike legislation that is passed in de ance of the
Constitution, assertive and menacing, the questioned part of section 2545 of the
Revised Administrative Code does not need a positive declaration of nullity by the court
to put it out of the way. To all intents and purposes, it is non-existent, outlawed and
eliminated from the statute book by the Constitution itself by express mandate before
the petitioner was appointed.
Incidentally, the last discussion answers and disposes of the proposition that in
accepting appointment under section 2545 of the Revised Administrative Code, the
petitioner must be deemed to have accepted the conditions and limitations attached to
the appointment. If the clause of section 2545 which authorized the President to
remove of cers of the City of Baguio at pleasure had been abrogated when petitioner's
appointment was issued, the appointee can not be presumed to have abided by this
condition.
We therefore hold that the petitioner is entitled to remain in of ce as City
Engineer of Baguio with all the emoluments, rights and privileges appurtenant thereto,
until he resigns or is removed for cause, and that respondent Mallare's appointment is
ineffective in so far as it may adversely affect those emoluments, rights and privileges.
Without costs.
Moran, C.J., Ozaeta, Paras, Pablo and Montemayor, JJ., concur.

Separate Opinions
BENGZON , J., concurring :

I concur in the result solely upon the ground that section 2545 of the Baguio
Charter (Administrative Code) empowering the President to remove the City Engineer
at pleasure has been impliedly repealed by section 22 of Commonwealth Act No. 177
which expressly provides for the rst time (following the mandate of the Constitution),
that "no of cer or employee in the civil service shall be removed or suspended except
for cause as provided by law.".
I must decline to go into the matter of alleged con ict with the Constitution, rst,
because plaintiff is precluded from raising that question (Zandueta vs. De la Costa, 66
Phil., 615); second, because every law is presumed to be constitutional unless eight
Justices of this Court are clearly of a contrary opinion, 1 and third, because that subject
need not be inquired into, except when absolutely necessary for the disposition of the
controversy.
Reyes, J., concurs.

Footnotes

BENGZON, J., concurring:

1. Cf. People vs. Vera, 65 Phil., 56, 137.
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CD Technologies Asia, Inc. 2016 cdasiaonline.com