EN BANC

[G.R. No. L-89. February 1, 1946.]

JOSE TOPACIO NUENO, MANUEL DE LA FUENTE, EUSTAQUIO

C. BALAGTAS, and DELIA C. DIÑO, petitioners, vs. GERARDO
ANGELES, AGATON EVANGELISTA, ANDRES SANTA MARIA,
VICENTE G. CRUZ, AMADO V. HERNANDEZ and FELICIDAD
MANUEL, respondents.

Jose Topacio Nueno for petitioners.

Assistant Fiscal Gregorio S. Narvasa for respondents.
Nicolas V. Villaruz for respondent members of "Young Philippines."

SYLLABUS

1. PLEADING AND PRACTICE; "QUO WARRANTO"; COMPLAINT;

NECESSITY OF SPECIFYING CLAIMANT TO, AND USURPER OF, OFFICE
INVOLVED. — An individual who files a complaint of quo warranto must set
name of the person who claims to be entitled to the office and that of the
defendant who is unlawful in possession thereof, and those who claim to be
entitled to the same office may be made parties in order to determine their
respective rights to the office in the same action. An individual can not sue
and oust two or more persons although the latter are holding illegally their
respective offices, unless he is entitled to all of them.
2. PUBLIC OFFICERS; TERM OF OFFICE DISTINGUISHED FROM
TENURE OF INCUMBENT; TERM OF OFFICE NOT EXTENDED BY REASON OF
WAR. — The term of an office must be distinguished from the tenure of the
incumbent. The term means the time during which the officer may claim to
hold the office as of right, and fixes the interval after which the several
incumbents shall succeed one another. The tenure represents the term
during which the incumbent actually holds the office. The tenure may be
shorter than the term for reasons within or beyond the power of the
incumbent. There is no principle, law or doctrine by which the term of an
office may be extended by reason
3. ID.; RULE OF HOLD-OVER. — While there is authority to the
contrary, the general trend of decisions of American courts is to adopt the
common-law rule of hold-over. The rule is, as enunciated in 46 Corpus Juris,
968, that "in the absence of an express or implied constitutional or statutory
provision to the contrary, an officer is entitled to hold his office until his
successor is appointed or chosen and has qualified." This enunciation of the
rule is substantially the same as that in McQuillin, Municipal Corporations,
vol. II, second ed., art. 307. The legislative intent not to permit holding over
may therefore be express or implied in legislative acts or enactments.
4. ID.; ID.; SUPPRESSION OF HOLD-OVER BY LEGISLATION INTENT.
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 — The repeal of all prior provisions for holding over by the provincial, city
and municipal elective officers by Commonwealth Act No. 357, and the
enactment of section 16 thereof which provides for the filling of all
vacancies, temporary or otherwise, which might occur during and after the
expiration of a term of office, so as to avoid the necessity and even the
occasion for holding over, clearly show the manifest intention of Congress to
suppress the hold-over.
5. ID.; ID.; ID.; POLICY OF RECALL ANNOUNCED BY PRESIDENT. —
The policy announced by the President of the Commonwealth in his message
to Congress on June 9, 1945, that "the provincial and municipal officers who
were elected in 1940 should, as a general principle, be recalled to their
respective positions, thus giving due consideration to the will of the people
as expressed at the polls, and only for strong reasons should they be
deprived of their privilege to serve," cannot be invoked in support of the
right to hold-over. In the first place, because the message has not the force
and effect of law and is therefore not a legislative interpretation of the law;
and secondly, because if any weight may be given to that policy in the
decision of this case it would work against the alleged right to hold-over. If
provincial and municipal officers are entitled by law to hold-over, they would
have the right to continue in office irrespective of any policy which the
President may adopt, for the latter cannot deprive them of said right. If the
President has to recall and appoint them to their respective original positions
pursuant to such policy, it is because they are not entitled to hold-over.
6. ID.; VACANCIES IN ELECTIVE PROVINCIAL OR MUNICIPAL OFFICES
AND OF CITY OF MANILA. — The only vacancies which may possibly occur in
elective provincial or municipal offices, as well as of the City of Manila, are
those provided for in section 16 of Commonwealth Act No. 357, and in
section 2440 (e) of the Revised Administrative Code, applicable only to
members of the Municipal Board of the City of Manila, besides those
enumerated in said section 16 which are not in conflict therewith for
according to section 2440 (d) as amended by Act No. 233 "in so far as they
are applicable, all the provisions of the Election Law are made effective as to
the members of the Board and to their election to the same extent as if the
City of Manila were a province . . ." And each and every one of said
vacancies may be immediately filled in the manner therein provided. and
therefore there can not be any interregnum during which the office may be
temporarily without an incumbent.
7. ID; ID.; TEMPORARY DISABILITY OF MEMBER OF MUNICIPAL
BOARD OF CITY OF MANILA; TEMPORARY APPOINTMENT BY PRESIDENT
WHEN IS AN OFFICE SAID TO BE VACANT. — In case of sickness or absence,
or if for any reason it becomes necessary to maintain a quorum in that
board, as in case of suspension or temporary disability of any member of the
Municipal Board of the City of Manila, section 16 (a) can not be applied,
because no vacancy, temporary or otherwise, is created thereby since the
office is not without an incumbent, and because that contingency is covered
by section 2349 of the Administrative Code which is specially applicable to
members of the Municipal Board of the City of Manila. In accordance with
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 said section, the Governor General (now the President) may make in such
case a temporary appointment of a person "who shall possess all the rights
and perform all the duties of a member; of the Board" until the return to
duty of the incumbent An office is said to be vacant where there is no
incumbent elected or appointed to hold it. "A temporary absence will not
result in a vacancy." Temporary "physical and mental disability of the
incumbent of an elective office does not create a vacancy."
8. ID., ID., ID., ID.; ID.; APPLICATION OF SECTION 16 (a) OF
COMMONWEALTH ACT No. 357 TO "TEMPORARY VACANCY" CONTEMPLATED
IN OR IN CONNECTION WITH SECTIONS 16 (c) AND 16 (d). — Even assuming
that it was also the intention of Congress to apply, though improperly, the
words "temporary vacancy" used in section 16 (a) of Act No. 357, to cases of
sickness, absence, suspension or any other temporary disability of any
member of provincial or municipal boards, it would not exclude the
application of said section 16 (a) to the proper "temporary vacancy" which
may result from the delay in the election or appointment of a successor of
the incumbent of the previous term in the cases contemplated in the
provisions of subsections (c) and (d) of said section 16. To meet or provide
for the interregnum or temporary vacancy during which no one actually
holds or could hold the office, said subsection ( a) of section 16 empowers
the President to appoint a person to fill such temporary vacancy or
interregnum, and the person so appointed shall hold the office until the
permanent successor has been elected or appointed in accordance with the
provisions of said subsections (c) and (d) to fill the office for the unexpired
term, according to subsection (f) of said section 16 of Commonwealth Act
No. 357. Election or appointment of a person to fill a vacancy under
subsections (b), (c), (d) and (e) for the unexpired term according to
subsection (f), should not be confused with the appointment under
subsection (a) of a person to fill the temporary vacancy until the permanent
incumbent for the unexpired term has been elected or appointed in
accordance with said subsections (c) and (d).
Per PERFECTO, J., concurring:
9. "QUO WARRANTO". — To obtain the remedy in this quo warranto
case, petitioners must show. in the first place, that they are entitled to the
positions they are claiming as members of the Manila Municipal Board. (
Section 6, Judicial Rule 68; Lumontad vs. Cuenco, 41 Off. Gaz., 894.)
10. NO ELECTIONS SINCE 1943. — Since 1943, until respondents
were appointed, no election, whether regular or special, had taken place in
Manila, and, therefore, no one can rightfully claim to have been elected to
any position in the Municipal Board of Manila.
11. TWO DIFFERENT THREE-YEAR TERMS. — Petitioners were
elected in 1940 for the three-year term of 1941-1943. Respondents were
appointed for a period belonging to the three-year term of 1944-1946. Both
terms cannot be confused. The first belongs to the past; the second, to the
present. The past is dead. The present is alive. It is impossible to engraft the
dead in the living. Life and death are metaphysical opposites.

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 12. TERM OF OFFICE AND TENURE OF OFFICE. — Term of office
cannot be confused with tenure of office. The last may be coetaneous with
the first. It may be shorter or it may not take place at all. That fact does not
change the duration of the term of office.
13. SEPARATION FROM OFFICE. — Petitioners alleged that they have
not been legally removed or suspended, nor resigned or abandoned their
positions in the Municipal Board. Their term of office having expired, there
was no office from which they could be removed or suspended, or which may
be the object of resignation or abandonment. Separation takes place
whether the occupant of an office, spontaneously or involuntarily, is
separated therefrom, or the office, by its expiration, is removed from the
occupant.
14. ABANDONMENT BY ACCEPTANCE OF JAPANESE POSITIONS. — By
their acceptance of official positions under the Japanese military
administration in January, 1942, before the expiration of their term of office,
petitioners vacated their Commonwealth positions.
15. INCOMPATIBILITY. — Continuance in official Commonwealth
positions is incompatible with acceptance of positions from a foreign
government (46 C. J., 947; 22 R. C. L., 560).
16. CONSTITUTIONAL PROHIBITION. — No person "holding any office
of profit or trust shall, without the consent of the Congress of the Philippines,
accept any present, emolument, office, or title of any kind whatever from
any foreign state." (Art. III, section 1:9, Constitution of the Philippines.)
17. INCOMPATIBILITY EMPHASIZED. — The incompatibility of
petitioners' former Commonwealth positions with those they accepted from
the Japanese military administration, is emphasized by the fact that Japan
was an enemy.
18. COMMONWEALTH ACT No. 153. — To implement the
constitutional prohibition and make it effective by penal sanction, the First
National Assembly enacted Act No. 153.
19. ESSENTIAL CHARACTERISTICS OF DEMOCRACY. — One of the
essential characteristics of democracy is temporary tenure of office for those
officers who are more immediately called upon to expose, sponsor, or voice
the people's fresh aspirations and developing policies, whether national or
local.
20. HOLD-OVER ELIMINATED — The hold-over provision in section
2439 of the Administrative Code was eliminated by section 6 of Act No.
2774. The hold-over provision in section 2074 of the Administrative Code
was repealed by section 4 of the Election Code enacted by the National
Assembly.
21. POPULAR OPINION AGAINST HOLD-OVER. — The general
attitude of provincial and municipal officers elected in 1940 in abstaining
from occupying their former positions after liberation in 1945 is in
accordance with a unanimous popular opinion against the hold-over theory.
22. TOLERATION BY NECESSITY. — In the absence of express
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 statutory authority, hold-over is tolerated only in cases of extreme necessity.
23. HOLD-OVER BY THE SECOND NATIONAL ASSEMBLY. — To fill the
legislative gap from November 15, 1941, when the term of office of its
members had to expire, to December 30, 1941, when Congress had to begin
its existence, was for the Second National Assembly a case of extreme,
paramount, and insurmountable necessity.
24. EXAMPLE OF SECOND NATIONAL ASSEMBLY NOT A PRECEDENT.
— The example of the Second National Assembly is an individual case which,
by its exclusive peculiarities, cannot be taken as a precedent in support of
the hold-over theory, it having been the result of an express understanding
at the time the constitutional amendments were approved and, later, ratified
by the people.
25. A FICTION. — Hold-over is a fiction. It cannot have the
contingent statute of hypothesis, resorted to by scientists to build up and
develop a theory. It cannot be raised to the category of a principle nor
ranked with the simplest and most elemental truth.
26. DORMANT VOLCANO. — To give intimation that the hold-over
theory can be elevated to the category of a judicial doctrine is to place
Philippine democracy on a dormant volcano which might erupt at any
moment.
27. AMBITION FOR POWER. — President Quezon said that ambition
for power is one of the greatest urges in the human heart. No one knew
human nature better than the late Filipino national leader. Ambition for
power knows no bounds.
28. PERPETUATION IN POWER. — By the hold-over theory municipal
and provincial officers, members of Congress and the Chief Magistrate might
be tempted to perpetuate themselves in power by the simple ruse of
frustrating the holding of elections.

DECISION

FERIA, J : p

This is an action of quo warranto instituted by the four petitioners

against the six respondents to oust the latter from their offices as members
of the Municipal Board of the city of Manila on the ground that the
petitioners are entitled to occupy and respondents are illegally holding them.
Jose Topacio Nueno, Manuel de la Fuente, Eustaquio Balagtas and
Carmen Planas and six others were elected in the general election held on
December 10, 1940, and qualified on January 1, 1941. Subsequently, Jose
Topacio Nueno and Carmen Planas resigned to run for seats in the House of
Representatives in the national election held on November 14, 1941, but
they were not elected. After the election, the President of the Philippine
Commonwealth appointed petitioner Nueno to fill the vacancy created by his
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 own resignation, and petitioner Delia C. Diño to fill the vacancy in the place
of Carmen Planas, for the last two belonged to the same political party, "The
Young Philippines."
On January 3, 1942, when the City of Manila was occupied by the
Japanese Forces, the Commander in Chief of the Imperial Japanese army
proclaimed military administration under martial law over all districts
occupied by the army, and in the proclamation it was provided that "so far
as military administration permits, all the laws now in force in the
Commonwealth, as well as executive and judicial institutions shall continue
to be effective as in the past," and "all public officials shall remain in their
present posts and carry on faithfully their duties as before."
By Order No. 1 of January 23, 1942, of the Commander in Chief of the
Imperial Japanese army, a central administrative organization or government
under the name of Philippine Executive Commission was organized, and
Jorge Vargas appointed Chairman thereof, and the latter, in Executive Order
No. 4, section 9 (b) of February 5, 1942, approve by the said Commander in
Chief, provided that "the provincial boards and the boards or councils of
cities, municipalities and specially-organized local governments shall merely
serve in an advisory capacity to their respective governor and mayors."
Under the so-called Republic of the Philippines inaugurated on October 14,
1943, no material change was introduced in so far as the City of manila was
concerned.
The regular election which, according to section 4 of Act No. 357
(Election Code), should have been have held on the second Tuesday in
December 1943 to elect the members of the Municipal Board of the City of
Manila who were to assume office on the first of January, 1944, could not be
held for the city was still under the Japanese military occupation; and as the
special election provided for in section 16 (c) of said Act could not also be
held after the re-occupation of the Philippines and the restoration of the
Commonwealth Government on February 27, 1945, due to physical
impossibility, the President of the Commonwealth appointed on July 18,
1945, the six respondents and four of those elected in December, 1940, as
members of the Board.
The four petitioners, Jose Topacio Nueno, Manuel de la Fuente,
Eustaquio C. Balagtas and Delia C. Diño, instituted this action against the six
respondents, Gerardo Angeles, Agaton Evangelista, Andres Santa Maria,
Vicente G. Cruz, Amado V. Hernandez and Felicidad Manuel, on the ground
that petitioners, having been elected as members of the Municipal Board of
Manila in the general election held in December, 1940, for three years, their
term of office has not yet expired because they have not served for three
years completely due to the Japanese occupation, and besides, because they
are entitled to hold-over or continue in office until their successors are
elected and qualified, and therefore respondents' appointments are null and
void.
Attorney Nicolas V. Villaluz appeared to intervene in behalf of the
political party "Young Philippines," and incidentally for the petitioner Delia C.
Diño, and claims that although the latter is not, under the law, entitled to
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 holdover after the expired term of the office of Carmen Planas (who resigned
as above stated and in whose place she was appointed by the President), the
appointments of the respondents were in contravention of section 16 (b) of
Act No. 357, because no one of the respondents belongs to the "Young
Philippines," whereas in the former Board there was one belonging to that
political party, petitioner Delia C. Diño; and besides, their appointments, not
having been submitted to the Commission on appointments, became
ineffective from September 18, 1945, the day following the adjournment of
the second special session of the Congress of the Philippines.
The respondents, represented by the Fiscal of the City of Manila,
contend that petitioners have no right to hold the public offices claimed by
them, because their term of office had already expired on December 31,
1943, and they are not entitled to hold-over; that whether or not they have
served completely for three years as members of the Municipal Board of
Manila is immaterial, for the term of office must be distinguished from the
tenure of the incumbent; that as petitioners have no right to institute the
present action, this Court has no jurisdiction to proceed and inquire into the
validity of respondents' appointments; and that the appointments of the
respondents are legal and valid under the emergency powers granted by Act
No. 671 of the Congress of the Philippines upon the President of the
Commonwealth.
The decision in this case depends upon whether or not, under the law,
petitioners are entitled to hold-over as members of the Municipal Board of
the City of Manila, notwithstanding the expiration of their term of office on
the last day of December of the year 1943.
In view of the conclusion we have reached in this decision, we shall not
discuss the sufficiency of the pleading filed by the four petitioners who claim
to be entitled to hold the offices now held by the six respondents. According
to section 7 of Rule 68, an individual who files a complaint of quo warranto
must set forth the name of the person who claims to be entitled to the office
and that of the defendant who is unlawfully in possession thereof, and those
who claim to be entitled to the same office may be made parties in order to
determine their respective rights to the office in the same action. An
individual can not sue and oust two or more persons although the latter are
holding illegally their respective offices, unless he is entitled to all of them.
Although this question has not been raised by the parties, we may rest our
decision on that ground alone and dismiss the action; for if we were to
decide this case in favor of the petitioners, we would be at a loss how to
determine which of the six respondents should be ousted as holding illegally
the four offices or places claimed by the four petitioners. There is nothing in
the record showing which of the six respondents occupy the four seats or
offices formerly occupied by the four petitioners. The record does not show
the respective dates or seniority of the respondents' appointments. But we
want to decide the case on its merits and not on technicalities, so as to avoid
any other or further proceedings.
The contention that petitioners are entitled to continue in office
because they have not completely served for three years due to the war, is
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 untenable, even assuming that they had not discharged the duties of their
office during the Japanese occupation of Manila. For the simple reason that
the term of an office must be distinguished from the tenure of the
incumbent. The term means that the time during which the officer may claim
to hold the office as of right, and fixes the interval after which the several
incumbents shall succeed one another. The tenure represents the term
during which the incumbent actually holds the office. The term of office is
not affected by the hold-over. The tenure may be shorter than the term for
reasons within or beyond the power of the incumbent. There is no principle,
law or doctrine by which the term of an office may be extended by reason of
war.
We shall, therefore, discuss and decide only the question of the
petitioners' right to hold-over and, consequently, the power of the President
to appoint their successors after the expiration of their term of office.
While there is authority to the contrary, the general trend of decisions
of American courts is to adopt the common-law rule of hold- over. The rule is,
as enunciated in 46 Corpus Juris, 968, that "in the absence of an express or
implied constitutional or statutory provision to the contrary, an officer is
entitled to hold his office until his successor is appointed or chosen and has
qualified." This enunciation of the rule is substantially the same as that in
McQuillin, Municipal Corporations, Vol. II, second ed., art. 307. The legislative
intent not to permit holding over may therefore be express or implied in
legislative acts.
In many states of the Union, the constitutions and statute expressly
provide for the holding over of public officers until their successors are
elected or appointed and have qualified. (46 C.J., sec. 111, p. 969.)
Here in the Philippines, in enacting the provisions of the Revised
Administrative Code relating to elective provincial officers, members of the
Municipal Board of the City of Manila and municipal officers in general, the
Philippine Legislature was dealing with the same or similar subject matter,
and notwithstanding the trend of American decisions to adopt the common-
law rule of hold-over, recognized and applied by this Court to appointive
officers in the case of Tayko vs. Capistrano (53 Phil., 866), our lawmakers
have followed the policy and practice of those States that provide expressly
in their statutes for holding over of provincial, city and municipal officers, in
the following provisions of the Revised Administrative Code, the pertinent
part of which we have underscored.
Section 2074 of the Revised Administrative Code (Provincial Law)
provided:
"Term of office of elective official . — The term of a provincial
officer elected at any general election commencing with the year
nineteen hundred and thirty-seven, shall begin on the sixteenth of July
following such election and shall end on the fifteenth of the same
month three years thereafter; but if a successor be not inducted at the
time appointed by law, the incumbent shall hold-over until a successor
shall be duly qualified."
Section 2177 of the same Code (Municipal Law) read as follows:
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 "Term of elective officer . — The term of a municipal officer
elected at any general election commencing with the year nineteen
hundred and thirty-seven, shall begin on the sixteenth of July following
such election and shall end on the fifteenth of the same month three
years thereafter; but if a successor be not inducted at the time
appointed by law, the incumbent shall hold over until a successor shall
e duly qualified."
The original provision of section 2439 (Charter of the City of Manila)
which provided "that the Municipal Board shall be the legislative body of the
city, and shall consist of ten elective members who shall hold office for four
years or until their successors are elected and qualified" was amended by
Act No. 2774 so as to read: "The Municipal Board shall be the legislative
body of the City, and shall consist of ten elected members who shall hold
office for three years." But the suppression of the provision for holding over
did not have any effect, since it was then a surplusage, because the second
paragraph of section 2440 provided among others the following:
"Election for the members of the Board shall be held on the date
of the general trienial election, and elected members shall take office
on the sixteenth day of October next following their election, upon
qualifying, and shall hold office until their successors are elected and
qualified."
From the express provision above quoted, it clearly appears that it was
the intention of the Legislative, independent or irrespective of the ruling of
this Court in the above-cited case of Tayko vs. Capistrano relating to
appointive officers, to provide expressly that the elective members of the
Municipal Board of the City of Manila as well as elective provincial and
municipal officers in general, shall hold-over after the expiration of their
terms until their successors shall be duly qualified. Such provision was
enacted to provide against all contingencies which might result from an
office becoming for any period of time vacant or without an incumbent.
Subsequently, the above-quoted provisions of sections 2974, 2177, and
2440 (second paragraph), were expressly repealed by section 184 of
Commonwealth Act No. 457. Section 4 of said act provides, in lieu of said
provisions, that "on the second Tuesday in December, nineteen hundred and
forty, and upon the same day every three years thereafter, a regular election
shall be held to elect the officers who are to occupy all elective provincial,
municipal and city offices throughout the Philippines. The officers elected
shall assume office on the first day of January next following." This repeal of
all provisions for holding over by the provincial, city and municipal elective
officers by Commonwealth Act No. 357, and the enactment of section 16
thereof which provides for the filling of all vacancies, temporary or
otherwise, which might occur during and after the expiration of a term of
office, so as to avoid the necessity and even the occasion for holding over,
clearly show the manifest intention of Congress to suppress the hold-over.
The very attorney who appeared for petitioner Delia C. Diño argued in his
brief and oral argument that the latter has no right under the law to hold-
over, but is entitled to be reappointed in accordance with section 16 (b) of
Act No. 357.
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 The policy announced by the President of the Commonwealth in his
message to Congress on June 9, 1945, that "the provincial and municipal
officers who were elected in 1940 should, as a general principle, be recalled
to their respective positions, thus giving due consideration to the will of the
people as expressed at the polls, and only for strong reasons should they be
deprived of their privilege to serve," quoted in the dissenting opinion, cannot
be invoked in support of the right to hold-over. In the first place, because the
message has not the force and effect of law and is therefore not a legislative
interpretation of the law; and secondly, because if any weight may be given
to the policy in the decision of this case, it would work against the alleged
right to hold-over. If provincial and municipal officers are entitled by law to
hold-over, they would have the right to continue in office irrespective of any
policy which the President may adopt, for the latter cannot deprive them of
said right. If the President has to recall and appoint them to their respective
original positions pursuant to such policy, it is because they are not entitled
to hold-over.
Section 16, of Commonwealth Act No. 357 reads as follows:
"Sec. 16. Vacancy in elective provincial or municipal office. —
(a) Whenever a temporary vacancy in any elective local office occurs,
the same shall be filled by appointment by the President if it is a
provincial office, and by the provincial governor, with the consent of
the provincial board, if it is a municipal office.
"(b) Whenever in any elective local office a vacancy occurs as
a result of the death, resignation, removal or cessation of the
incumbent, the President shall appoint thereto a suitable person
belonging to the political party of the officer whom he is to replace,
save in the case of a mayor, which shall be filled by the vice-mayor.
"(c) Whenever the election for a local office fails to take place
on the date fixed by law, or such election results in a failure to elect,
the President shall issue as soon as practicable, a proclamation calling
a special election to fill said office.
"(d) When a local officer-elect dies before assumption of
office, or, having been elected provincial or municipal officer, his
election is not confirmed by the President for disloyalty, or such officer-
elect fails to qualify, for any reason, the President may in his discretion
either call a special election or fill the office by appointment.
"(e) In case a special election has been called and held and
shall have resulted in a failure to elect, the President shall fill the office
by appointment.
"(f) The person appointed or elected to fill a vacancy in an
elective provincial or municipal office shall hold the same for the
unexpired term of the office."
The only vacancies which may possibly occur in elective provincial or
municipal offices, as well as of the City of Manila, are those provided for in
the above-quoted provisions, and in section 2440 (e), applicable only to
members of the Municipal Board of the City of Manila, besides those
enumerated in said section 16 which are not in conflict therewith, for
according to section 2440 (d) as amended by Act No. 233, "in so far as they
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 are applicable, all the provisions of the Election Law are made effective as to
the members of the Board and to their election to the same extent as if the
City of Manila were a province . . ." And each and every one of said
vacancies may be immediately filled in the manner therein provided, and
therefore there can not be any interregnum during which the office may b
temporarily without an incumbent as we shall show later on.
In case of sickness or absence, or if for any reason it becomes
necessary to maintain a quorum in that Board, as in case of suspension or
temporary disability of any member of the Municipal Board of the City of
Manila, section 16 (a) can not be applied, because no vacancy, temporary or
otherwise, is created thereby since the office is not without an incumbent,
and because that contingency is covered by section 2439 of the
Administrative Code which is specially applicable to members of the
Municipal Board of the City of Manila. In accordance with said section, the
Governor General (now the President) may make in such case a temporary
appointment of a person "who shall possess all the rights and perform all the
duties of a member of the Board" until the return to duty of the incumbent.
An office is said to be vacant where there is no incumbent elected or
appointed to hold it. (46 C.J., 971.) "A temporary absence will not result in a
vacancy." (Young vs. Morris, 47 Okl., 743.) Temporary "physical and mental
disability of the incumbent of an elective office does not a create a vacancy."
(46 C.J., 973.)
But even assuming that it was also the intention of Congress to apply,
though improperly, the words "temporary vacancy" used in section 16 (a) of
Act No. 357, to cases of sickness, absence, suspension or any other
temporary disability of any member of provincial or municipal boards, it
would not exclude the application of said section 16 (a) to the proper
"temporary vacancy" which may result from the delay in the election or
appointment of a successor of the incumbent of the previous term in the
cases contemplated in the provisions of subsections (c) and (d) of said
section 16. Under these provisions, whenever (1) the election fails to take
place on the date fixed by law (as in the case at bar), or (2) results in a
failure to elect, or (3) the officer-elect dies before assumption of office, or (4)
his election is not confirmed for disloyalty, or (5) he fails to qualify for reason
of noneligibility or other reasons, the successor to fill the vacancy shall be
elected in a special election, if the President does not exercise his discretion
to fill the vacancy in the last three cases (3) (4) and (5) by appointment.
Now, as according to section 18 of the same Act No. 357, the said special
election shall be called by the President by proclamation for a date which
shall not be earlier than thirty days nor later than ninety days from the date
of said proclamation, it is evident that from the first day of January, the
beginning of the new term, to the election or appointment and qualification
of the successor elected in that special election, or appointed if the special
election result in a failure to elect, as provided in subsection (e), there would
necessarily be an interregnum or temporary vacancy during which no one
actually holds or could hold the office. To meet or provide for such a
contingency, said subsection ( a) of section 16 empowers the President to
appoint a person to fill such temporary vacancy or interregnum, and the
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 person so appointed shall hold the office until the permanent successor has
been elected or appointed to fill the office for the unexpired term, according
to subsection (f) of said section 16 of Commonwealth Act No. 357. Election
or appointment of a person to fill a vacancy under subsections (b), (c), (d)
and (e) for the unexpired term should not be confused with the appointment
under subsection (a) of a person to fill the temporary vacancy until the
permanent incumbent for the unexpired term has been elected or appointed
(subsection [f]).
In addition to all the foregoing, we may add that petitioners Jose
Topacio Nueno and Delia C. Diño can not claim the right to hold-over as
elective officers of the Municipal Board of Manila, because, as above stated,
they held the office before the war by appointment under subsection ( b) to
fill the vacancies caused by resignation of the elective incumbents, one of
them the same petitioner Nueno, and to hold the office for the unexpired
term in accordance with subsection ( f), section 16, of said Commonwealth
Act No. 357. And that petitioner Diño's claim is based on the incorrect
assumption that the respondents were appointed under subsection (b) of
said Act.
From the foregoing it clearly appears that petitioners are not entitled
to hold-over, and after the expiration of their term of office on December 31,
1943, the offices of members of the Municipal Board of Manila became
vacant from January 1, 1944, because of failure to hold the regular election
on the second Tuesday of December 1943 and the special election, and
consequently to elect the would-be incumbents. And during the interregnum
or temporary vacancy from January 1, 1944, until the said special election is
held and new members elected or, in case of failure to elect, appointed by
the President (under section 16 [ c] and [d] of Commonwealth Act No. 357)
the President had, under section 16 (a) of the same Act, the power to
appoint the respondents or any other, at his discretion, to fill said temporary
vacancy or vacancies. As the petitioners are not entitled to hold-over or
continue, after the expiration of their term, in the offices claimed by them
and held now by the respondents, they have no right to bring the present
action and impugn the validity of the latter's appointments, according to the
provisions of section 6, rule 68, of the Rules of Court.
The record does not show whether the respondents were appointed by
the President under section 16 (a) of Commonwealth Act No. 357, or under
the emergency powers granted him by Commonwealth Act No. 671 of the
Congress of the Philippines as contended by the City Fiscal, attorney for the
respondents. But having arrived at the above conclusion, this Court does not
deem it necessary to decide whether or not the President had the authority
to appoint the respondents by virtue of his emergency powers; and whether
or not the respondents' appointments became ineffective from September
18, 1945, which was the day following the adjournment of the Congress of
the Philippines convened after their appointments, because the latter had
not been submitted to Congress or the Commission Appointments, as
claimed by the attorney for respondent Diño.
The action of quo warranto filed by the petitioners is therefore
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 dismissed, with costs against them. So ordered.
Jaranilla, De Joya, Pablo, Bengzon, and Briones, JJ., concur.

Separate Opinions
PERFECTO, J., concurring:

Petitioners Nueno, De la Fuente and Balagtas, with Carmen Planas and

five others, were elected members of the Municipal Board of Manila in the
election held on December 10, 1940.
Planas and Nueno resigned and ran for Congress in the national
election of November 14, 1941. Both failed. After the election, President
Quezon reinstated Nueno by appointment in his former position in the
Municipal Board. The same President appointed petitioner Diño in place of
Planas.
Petitioners continued in office after the Japanese occupied Manila on
January 2, 1042, and remained rendering services to the Japanese military
administration until February, 1942, when Commissioner of the Interior
Benigno S. Aquino, under the puppet Vargas Executive Commission, ordered
the dissolution of the Municipal board and petitioners were given the
positions of advisers to the Mayor of Manila.
The regular election which should have taken place in December,
1943, to elect the new members of the Municipal Board for the three- year
term from January 1, 1944, to December 31, 1946, was not held due to the
Japanese occupation.
The Commonwealth Government was re-established in Philippine
territory in Leyte in October, 1944, and in Manila and the whole Philippines
only on February 27, 1945.
On July 18, 1945, President Osmeña appointed respondents as
members of the Municipal Board with others, four of whom were elected in
1940 for the three-year term of 1941-1943. During the almost five months'
period of from February 27, 1945, when the Commonwealth Government
was restored in Manila, until July 18, 1945, when respondents were
appointed, no one had been occupying any of the ten positions in the
Municipal Board. They were vacant.
Petitioners complained that the Chief Executive appointed respondents
"instead of recalling the petitioners," but it appeared that the petitioners
were then under investigation by the CIC, which fact precluded the President
from appointing them, the only way by which they could be recalled.
Petitioners seek the ouster of respondents and the declaration that:
(a) The term of office of respondents has expired in accordance
with the Constitution, because they were not acted upon by the Commission
on Appointments; and.
( b) The petitioners are "legally entitled to be recalled and
reinstated to their former positions as members of the Municipal Board"
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 effective retroactively on February 27, 1945.
To obtain the remedy in this case, petitioners must show, in the first
place, that they are entitled to the positions they are claiming as members
of the Municipal Board. (Section 6, Judicial Rule 68; Lumontad vs. Cuenco, 41
Off. Gaz., 894.).
According to law, the title to a position as member of the Municipal
Board of Manila may be acquired only (a) by election, regular or special, and
(b) by presidential appointment.
It is evident that petitioners cannot claim title by election. To entitle
them by election to occupy any of the positions to which respondents were
appointed, it is necessary that they should been elected in the regular
election which should have taken place in 1943 or, in default thereof, in any
special election called by the President for the purpose. Since 1943, until
respondents were appointed, no election, whether regular or special, had
taken place in Manila, and, therefore, no one can rightfully claim to have
elected to the positions in question.
The fact that the petitioners were elected in 1940 cannot be advanced
as a reason for their claim. They were elected in 1940 only for the three-year
term of 1941-1943, ending on December 31, 1943, which cannot be
confused with the following other three-year term of 1944-1946. The first
belongs to the past; the second, to the present. The past is dead. The
present is alive. It is impossible to engraft the dead in the living. Life and
death are metaphysical opposites. There is no possible meeting between the
two horns of the dilemma: to be or not to be. They are conclusively
uninterchangeable.
The appointments made by President Quezon to petitioners Nueno and
Diño had only the effect of filling the positions which became vacant as a
result of the resignations of the Nueno and Planas in the three-year term of
1941-1943. The effect of said appointments cannot extend further, as
President Quezon, when he issued the appointments, had not the power to
fill any position in the three-year term of 1944-1946; for, according to law,
they should be filled by election and, only by its failure, by appointment.
When the appointments were issued, no one was in a position to say that no
election could be held to fill the positions in the three-year term of 1944-
1946.
None of petitioners can claim title by appointment to any of the
respondents' positions, which belong to the three-year term of 1944-1946.
Petitioners allege that their term of office has not expired because their
successors have not been elected and qualified, and that they have not
served completely in their term of three years. The allegation is based on
erroneous assumptions. The term of office of petitioners was fixed by law,
and it was limited to the three-year term of 1941-1943. Said three-year term
is fixed by law, regardless of whether or not election takes place to fill
positions for the next succeeding three-year term of 1944-1946, or those
elected fail to qualify.
Said term of office had nothing to do with the duration of the tenure of
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 office of petitioners. The tenure of office may be coetaneous with the three-
year term, or shorter. The officer might even fail to occupy, for any length of
time, the position to which he is elected. That fact does not change the
duration of the term of office. The causes of his failure to occupy the
position, whether the result of enemy occupation, death, sickness,
resignation, etc., do not affect said duration.
Petitioners allege that they have not been legally removed or
suspended, nor resigned or abandoned their positions in the Municipal
Board. Such facts are not necessary. The term of office having expired, there
was no office from which they could be removed or suspended, or which may
be the object of resignation or abandonment. By the expiration of the term
of office, with respect to petitioners, it can be truthfully stated that their
offices disappeared. At most, they left in the mind of men a piece of history
to remember. Separation takes place whether the occupant of an office,
spontaneously or involuntarily, is separated therefrom, or the office, by its
expiration, is removed from the occupant.
Under the facts in this case, there is ground to declare that, before the
expiration of their term of office, petitioners, in fact, by their acceptance of
official positions under the Japanese military administration, resigned from or
abandoned or vacated their Commonwealth positions in January, 1942,
because their positions under the Japanese Imperial Government, which
represent a foreign state — Japan — were incompatible with their positions
under the Commonwealth of the Philippines. (46 C.J., 947; 22 R. C.L., 560.).
The incompatibility can be conclusively shown by the fact that our
fundamental law provides: "No law granting a title of nobility shall be
enacted, and no person holding any office of profit or trust shall, without the
consent of the Congress of the Philippines, accept any present, emolument,
office, or title of any kind whatever from any foreign state." (Art. III, section
1: 9, Constitution of the Philippines.) Consent of Congress in petitioners' case
was not shown nor alleged. It was impossible to obtain it anyhow, because
Congress could not convene during Japanese occupation. Japan, besides
being a foreign state, was an enemy, thus emphasizing further the
incompatibility.
To implement this constitutional prohibition and make it effective by
penal sanction, while we were a member of the First National Assembly we
drafted a bill which, later, was enacted into the present Commonwealth Act
No. 153.
The theory of hold-over has been advanced to support petitioners'
claim to respondents' positions in the three-year term of 1944-1946. The
principle of democracy has been even invoked to maintain the proposition
that petitioners, at least the three who were elected in 1940, are entitled to
occupy the positions in question until they are filled by those who may be
elected in the future.
The fact which seems to have been forgotten is that one of the
essential characteristics of democracy is temporary tenure of office for those
officers who are more immediately called upon to expose, sponsor, or voice
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 the people's fresh aspirations and developing policies, whether national or
local, springing from the ever changing social and cultural conditions and
new political or economic outlooks or situations, resulting from scientific
progress and the unquenchable thirstiness for improvements in all orders of
life and aiming at the ideal of human perfection.
On November 15, 1939, on the occasion of the laying of the
cornerstone of the Jefferson Memorial at Washington, D.C., the great
President Franklin Delano Roosevelt, among other things, said:
"But it was in the field of political philosophy that Jefferson's
significance is transcendent.
"He lived as we live in the midst of a struggle between rule by
the self-chosen individual or the self-appointed and rule by the
franchise and approval of the many. He believed as we do that the
average opinion of mankind is in the long run superior to the dictates
of the self-chosen.
"During all the years that have followed Thomas Jefferson, the
United States has expanded his philosophy into a greater achievement
or security of the Nation, security of the individual, and national unity
than in any other part of the world.
"It may be that the conflict between the two forms of philosophy
will continue for centuries to come, but we in the United States are
more than ever satisfied with the republican form of government based
on regularly recurring opportunities to our citizens to choose their
leaders themselves."
Besides, the provision of the Revised Administrative Code on hold-over,
contained in section 2439, was eliminated by amendment made by section 6
of Act No. 2774, approved by the Philippine Legislature which is an evident
expression of the legislative will not to allow said hold-over, in conformity
with the following doctrines:
"Under a statute creating an office, fixing the term, and making
no provision for holding over until a successor is elected and qualified,
the term is definite and a vacancy exists upon its expiration." (State vs.
Windom, 131 Minn., 401; 155 N.W., 629.)
"When the duration of the term of office is specified in the
statute, and an officer is elected to serve out the term, his power and
authority thereupon ipso facto cease, unless he is authorized by some
specific provision of organic law to hold-over." (Marcellus vs. Wright, 61
Mont., 274; 202 Pac., p. 381.) "In all cases other than a vacancy
occurring before the expiration of the term of office, the vacancy, for
the purpose of appointing a successor incumbent, is deemed to exist
from the date of the expiration of the term of office." (People vs.
Sohmer, 209 N.Y., 151; 102 N.E., 593; 46 L.R.A. [N.S.], 1202.).
"While the word 'vacancy' as applied to an office is one which has
no technical meaning, an office is vacant in the eye of the law
whenever it is unoccupied by a legally qualified incumbent who has a
lawful right to continue therein until the happening of some future
event." (46 C.J., 971.)
When the Philippine Legislature, through the enactment of section 6 of
Act No. 2774, amended section 2439 of the Administrative Code, by
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 eliminating thereof the hold-over provision concerning members of the
Municipal Board of Manila, it did not eliminate the hold-over provision in
section 2974 of the Administrative Code respecting provincial elective
officers. But in 1937, for the sake of uniformity and consistency, when we
wrote the text of the Election Code which we proposed to be adopted by the
National Assembly, we eliminated said hold-over provision of section 2074 of
the Administrative Code. The Election Code was passed as we drafted it.
(See section 4 of Commonwealth Act No. 357, known as the Election Code.)
The fact that petitioners maintain that they are entitled to berecalled
and reinstated, serves only to weaken the hold-over theory. This means that
they are not in actual possession of the offices in question. It means that
they are not in actual enjoyment of all the rights, privileges, and
emoluments thereof. If they did not cease in the rightful possession of the
offices, why should they be recalled? If they are holding over their positions,
what is the purpose of the reinstatement they claim?
The ideas of recall and reinstatement are incompatible with the hold-
over theory. Hold-over involves in the idea of continuity. Recall and
reinstatement involve the idea of cessation, interruption, or severance from
office.
Since the Commonwealth Government was restored in Manila on
February 27, 1945, had the petitioners done anything consistent with the
hold-over theory? Did they occupy the positions in question? Did they
attempt to occupy them? What appears in the record is the contrary. From
February 27, 1945, to July 18, 1945, they completely failed to occupy the
offices in question. It so happens that the mental attitude and conviction
manifested by this abstention were not exclusive in the petitioners. They
were general among all other provincial and municipal officers elected in
1940 throughout the Philippines for the same three-year term of 1941-1943.
The fact shows conclusively a unanimous popular opinion against the hold-
over theory. This means that the hold-over provision was eliminated by the
Philippine Legislature and the National Assembly so as to express a well-
crystallized public opinion, which is the strongest force behind legislative
enactments, and to obey a popular mandate.
It appears, furthermore, that petitioners advanced the hold-over theory
only when they failed to be recalled, reinstated, or appointed on July 18,
1945, making it a last minute strategy in a desperate attempt to save a
losing proposition.
In fact, the idea of hold-over does not appear clearly enunciated in the
petition, which contains only a timid and wavering insinuation. Petitioners
themselves, when they drafted the petition, failed to strike at the precise
word "hold-over," which in this case was used for the first time in
respondents' answer, filed one week after the petition. It was only in the long
and able memorandum they submitted where petitioners, taking advantage
of the use of the word by respondents, seized the opportunity to boldly
advance their hold-over theory in an elaborate fashion and, although the
memorandum is written in Spanish, the English word "hold-over" used by
respondents was retained, although hyphenized and underlined. The
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 underline serves to emphasize the foreign character in the Spanish
memorandum of the untranslated original English word.
In the absence of express statutory authority, hold-over is tolerated
only in cases of extreme, paramount, insurmountable necessity. When public
interest imperatively demands the performance of public functions, and
there is no official duly elected or appointed to perform the, it is expected
that the officer who, during his term of office, had been performing them,
upon expiration of said term, should continue in their performance in a de
facto capacity.
Such happened with the Second National Assembly. The terms of office
of the members thereof would have ended on November 15, 1941; but, in
pursuance of an understanding had at the time the constitutional
amendments were adopted, they continued in office until December 29,
1941. With the extraordinary measures enacted by the Second National
Assembly in its special War Session of December, 1941, while Manila was
being subjected to enemy aerial bombardment, the Commonwealth
Government was enabled to cope with the immediate problems caused by
the unexpected outbreak of the Pacific War. It would have been too late to
wit for the meeting of the new Congress which, anyway, was not and could
not be convened and organized until after Liberation. By force of
unprecedented circumstances, the Second national Assembly had to fill the
legislative gap from November 15 to December 29, 1941, and the trend of
world events made it our War Legislature. Many of our national postwar
problems of today are being solved by governmental powers granted in its
eventful December special War Session.
It can be seen from this instance that extreme necessity may justify, in
the public interest, the hold-over by officers whose term of office has
elapsed. National existence was in the balance. Our country was attacked
and invaded by the ruthless Nippon hordes. The National Government
needed immediate legislative authority to adopt the measures demanded by
the emergency. The members of the Second National Assembly could not
have hesitated to continue performing their legislative functions and duties,
although their term of office had expired, because no others were in a
position to answer to the call of the country for said special purpose.
But the case of the Second national Assembly must not and cannot be
taken as a precedent in support of the hold-over theory. The example cannot
be elevated to the category of a rule. The individual case, characterized by
its own exclusive peculiarities, cannot be generalized. The Second National
Assembly was the same legislative body which enacted the amendments in
the Constitution by which Congress was created to replace the National
Assembly as the legislative power of our government. When December 30,
1941, was fixed in the amendments as the day from which Congress should
begin to exist, we knew, as all the rest of our fellow members in the Second
National Assembly knew, that there would be a legislative gap to be filled
from November 15, 1941, when our term of office was to end, to the day
when congress should begin to have existence. We knew then that the gap
could not and should not remain unfilled, not only because the continuous
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 existence of an organ entrusted with the legislative power is of paramount
importance and is indispensable, but for the clouds of war were already
hanging over our sky and at any moment the exercise of the legislative
power might be urgently needed to face any emergency which might
endanger our national existence. So we decided, as a logical step, to have a
clear understanding to the effect that the Second National Assembly should
be the one to fill the gap by hold-over. We deemed it unnecessary to insert
in the amendments any specific provision to said effect, considering that it
was of temporary character, but the idea was clearly and unmistakably
stated in our deliberations, and when the amendments were submitted to
the people for ratification, the public was fully apprised of the matter which
was publicly discussed, and made subject of talks in popular meetings.
Hold-over is a fiction. For the purposes of this discussion, one may call
it legal, if it suits one's literary taste. It will not change its nature. It shall
remain nonetheless as a fiction, a mere product of imagination, without any
objective reality. It can not even have the contingent statue of hypothesis,
which is usually resorted to be scientists to build up and develop a theory, to
clarify an enigma of nature. Such hypothesis will often be he expression of
an unknown reality, only waiting for the scientific discovery or the miracle of
invention, to be in full bloom in the field of human knowledge.
Hold-over, being a fiction, can not be raised to the category of a
principle, can not be ranked with the simplest and most elemental truth.
Upon it, no legal theory can validly be evolved. To attempt it is to try to erect
a palace on thin air. The futility of the attempt is self-evident.
Let us be very careful not to give any intimation that we can elevate
the hold-over theory to the category of a judicial doctrine, lest we may have
to face the danger of placing Philippine Democracy on a dormant volcano
which might erupt at any moment.
The safety of our democracy requires, among other things, that no
ground or pretext be given by which elective officials might entertain the
hold-over idea. Once they are allowed to entertain in their minds that it is a
valid theory that courts might uphold, it will arouse the almost irresistible
temptation for those who are coveting to remain in office by any means at
their command. Unfortunately, their number is not small. The ambition for
power, as President Quezon more than once said, is one of the greatest
urges in the human heart. No one knew human nature better than the late
Filipino national leader.
Municipal and provincial elective officers may do many things, even
under color of legality, to cause the failure of the elections in which their
successors might be elected. Their power to obstruct the holding of elections
or to cause their failure is undeniable, because the law itself entrusted them
with many important decisive official functions concerning the holding of
elections.
The hold-over theory might induce an unscrupulous majority in
Congress to defeat the holding of elections, not necessarily by making
amendments in the Election Code, which they could do easily, but simply by
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 refusing to appropriate the necessary funds for the holding of national
elections. Everybody knows that elections are so expensive. To save the
money of the people under stringent economic conditions, such as are
prevailing nowadays, is a pretext which can be resorted to, under the cover
of a political gesture which will not be entirely lacking of popular appeal in
some sectors of the electorate, where there are many big taxpayers who are
bent on opposing all Government expenditures for their effect in the
corresponding increase in taxes.
It is not necessary to mention the almost unlimited powers of the
President to impede the holding of national elections. It is enough to mention
that he can veto the necessary appropriation or just suspend the election for
reasons of public order. That is the reason why the authors of our
Constitution were careful enough to specify in unmistakable language the
date of expiration of the President's term of office, to preclude any doubt in
everybody's mind that he will necessarily cease to hold office on the day and
hour fixed in the fundamental law.
The petitioners, not having shown that they are entitled to occupy the
offices in question, lack the legal personality to institute these quo warranto
proceedings, following the doctrine laid down by this Court in the case of
Lumontad vs. Cuenco (41 Off. Gaz., 894), one of the first cases decided after
the liberation. The remaining points of controversy in this case are of
political nature, which must be submitted to the tribunal of the electorate, as
we have stated in Custodio vs. President of the Senate (42 Off. Gaz., 1243),
or are moot questions which it is not necessary for this Court to pass upon.
We vote for the denial of the petition without costs.

HILADO, J., dissenting:

We dissent. As stated in the majority opinion, petitioners Jose Topacio

Nueno, Manuel de la Fuente, and Eustaquio Balagtas, together with Carmen
Planas and six others, were elected members of the Municipal Board of the
City of Manila in the general elections of December 10, 1940, all of them
qualifying on January 1, 1941. Thereafter, Jose Topacio Nueno and Carmen
Planas resigned to run for seats in the House of Representatives in the
national elections held on November 14, 1941, but were defeated. After
those elections, the President of the Philippines appointed petitioner Nueno
to fill the vacancy created by his own resignation, and petitioner Delia C.
Diño to fill the vacancy left after the resignation of Carmen Planas, these last
two belonging to the same political party, "The Young Philippines."
Petitioners were the lawful incumbents of their respective seats on the
Municipal Board of the City of Manila when the Pacific War broke out, and
when, subsequently, the City of Manila was occupied by the invading
Japanese forces, which occupation took place on January 2, 1942.
On February 5, 1942, Jorge B. Vargas, who has been appointed by the
Commander in Chief of the Imperial Japanese Army Chairman of the
Philippine Executive Commission, which has been organized by virtue of
Order No. 1 of January 23, 1942, of the same Commander in Chief, decreed
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 that "the provincial boards and the boards or councils of cities, municipalities
and specially organized local governments shall merely serve in an advisory
capacity to their respective governors and mayors." From then on until the
liberation and reestablishment of the Commonwealth Government,
particularly of the city government of Manila, the Municipal Board of said city
could not and did not function as provided in the Constitution and laws of the
Commonwealth. The war and the consequent occupation of the city by the
Japanese invades, and the setting up by them of an entirely different
governmental structure made it impossible for the Commonwealth
Government in general, and the city government of Manila in particular, to
continue functioning as such under and pursuant to the Commonwealth
Constitution and laws. This fact was in the mind of President Osmeña when
he spoke in his message to the Filipino people, upon the day of the Leyte
landing, October 20, 1944 (41 Off. Gaz., 151), of the resumption of the
"normal functions of civil government" in the liberated areas, "the
restoration of the democratic functions of government in the administration
of the nation, the provinces and the municipalities," and the reestablishment
of the constitutional government "which existed here before Pearl Harbor."
The same fact was also recognized in the Joint Resolution of the United
States Congress of June 29, 1944 (41 Off. Gaz., 81) wherein it is said that
"the Japanese are now in possession and control of the land, peoples,
business, communication, and institutions of the Commonwealth of the
Philippines, and because of these circumstances the Filipino people are
denied the free use and employment of the processes and political
institutions jointly established by the Government of the United States and
the Commonwealth of the Philippines for the transaction of private and
public business and for the maintenance of liberty, law and order, and justice
in the Philippine Islands." (Italics supplied.) One of the consequences of that
interruption of the normal functions and processes of the Commonwealth
government and its agencies, was the impossibility of holding the election of
the new members of the Municipal Board of Manila on the second Tuesday in
December, 1943, as provided in section 4 of the Election Code
(Commonwealth Act No. 357).
A fact of official knowledge and judicial notice is, that although under
section 3 (b) of the Election Code the term of office of the members of the
Second National Assembly was to terminate three years after the second
Tuesday in November, 1938, that is, November 15, 1941, said legislative
body held over and continued to function, passing certain legislative
measures of an emergency character, significantly Commonwealth Act No.
671, up to a date nearing Christmas of 1941.
The fundamental question which arises from the foregoing facts is:
Under the laws of the Commonwealth in force before the war and before the
City of Manila was occupied by the Japanese invaders, by virtue of which
petitioners Jose Topacio Nueno, Manuel de la Fuente, Eustaquio Balagtas,
and Delia C. Diño were then holding office as members of the Municipal
Board of Manila, did said petitioners have the right to hold-over in case the
next election for the same office should not take place on the date fixed by
law, or such election should result in a failure to elect, and while the
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 President of the Commonwealth has not issued a proclamation calling a
special election to fill said office, and their successors are not duly elected
and qualified? We are of opinion that, under said circumstances, they
possessed such right to hold-over. The general rule, solidly supported by the
weight of authority, and which we believe is the one more conducive to a
maximum of governmental stability and efficiency, is that, in the absence of
an express constitutional or statutory provision to the contrary, public
officers have the right, as well as the duty, to continue in office under the
principle of hold-over until their successors are duly elected or appointed
and qualified, unless there is a manifest implied intention in the Constitution
or the laws to prohibit such hold-over. Just as nature abhors a vacuum, the
law abhors a vacancy in government. This is a legal maxim venerable by
age, unassailable because intrinsically sound. In justice to the Legislature, it
should be presumed that it did not, in any act passed by it, impliedly prohibit
hold-over without concomitantly providing for a procedure or remedy by
which to avoid the vacancy which would otherwise result, for the simple
reason that it would be against the public interest and general welfare to
leave any office in the government without an incumbent. That office has
been created either by constitutional or by statutory mandate because it was
considered necessary for the efficient functioning of the government; and so
long as such office is not abolished, it would be unjust to assume that the
Legislature would ever leave it vacant and its functions paralyzed, when
such vacancy and paralization can be avoided.
"In the absence of any constitutional or statutory regulation on
the subject, the general rule is that an incumbent of an office will hold-
over after the conclusion of his term until the election and qualification
of his successor." (Tayko vs. Capistrano, 53 Phil., 866.)
"The principle frequently adopted by the American courts is that,
in the absence of express provisions and unless the legislative intent to
the contrary is manifest, municipal officers hold-over until their
successors are provided. The courts, however, generally indulge in
statute a condition which may result in an executive or administrative
office becoming for any period of time wholly vacant and unoccupied
by one lawfully authorized to exercise its functions." (McQuillin,
Municipal Corporations, 2d ed., Vol. II, art. 507.)
We are entirely in agreement with the majority in that the deletion
from section 2439 (a part of the Manila Charter) of the Revised
Administrative Code of the phrase "or until their successors are elected and
qualified" by the amendment of said section by Act No. 2774, could not
imply a legislative intent to abolish the rule of hold-over, since that phrase
would any way be a mere surplusage if left to stand in said section, for the
reason that the section immediately following, namely, section 2440,
provides for hold-over for the members of the Municipal Board of Manila in
these express words: "and shall hold office until their successors are elected
and qualified."
It results, therefore, that the deletion of the aforesaid phrase from
section 2439 of the Revised Administrative Code, as amended by Act No.
2774, does not imply an intention — much less a manifest intention — on the
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 part of the legislature to prohibit the right of hold-over to the members of the
Municipal Board of Manila.
The fact that the Second National Assembly held-over beyond
November 15 until the holidays in the last week of December, 1941, would
also clearly show that the members of said body considered the principle of
hold-over as in force without need of so expressly providing in the law. Their
stand on the matter rule which we are applying in this dissent, and be it not
overlooked that the question of whether or not to adopt the principle of hold-
over is one peculiarly within the province of the lawmaking power.
On August 22, 1938, the First National Assembly approved the Election
Code (Commonwealth Act No. 357). Sections 4 and 16 thereof provide:
"SEC. 4. Regular elections for provincial and municipal
offices. — On the second Tuesday in December, nineteen hundred and
forty, and upon the same day every three years thereafter, a regular
election shall be held to elect the officers who are to occupy all elective
provincial, municipal and city offices throughout the Philippines. The
officers elected shall assume office on the first day of January next
following.
"SEC. 16. Vacancy in elective provincial or municipal office. —
(a) Whenever a temporary vacancy in any elective local office occurs,
the same shall be filled by appointment by the President if it is a
provincial office, and by the provincial governor, with the consent of
the provincial board, if it is a municipal office.
"(b) Whenever in any elective local office a vacancy occurs as
a result of the death, resignation, removal or cessation of the
incumbent, the President shall appoint thereto a suitable person
belonging to the political party of the officer whom he is to replace,
save in the case of a mayor, which shall be filled by the vice-mayor.
"(c) Whenever the election for a local office fails t take place
on the date fixed by law, or such election results in a failure to elect,
the President shall issue as soon as practicable, a proclamation calling
a special election to fill said office.
"(d) When a local officer-elect dies before assumption of
office, or, having been elected provincial or municipal officer, his
election is not confirmed by the President for disloyalty, or such officer-
elect fails to qualify, for any reason, the President may in his discretion
either call a special election or fill the office by appointment.
"(e) In case a special election has been called and held and
shall have resulted in a failure to elect, the President shall fill the office
by appointment.
"(f) The person appointed or elected to fill a vacancy in an
elective provincial or municipal office shall hold the same for the
unexpired term of the office."
Pursuant to section 4 of the Election Code, if the Pacific War had not
broken out and the Philippines not been invaded by the Japanese, a regular
election would have been held, among others, for the purpose of electing the
new members of the Municipal Board of Manila on second Tuesday in
December, 1943, but because of that war and of that invaders, that election
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 "failed to take place" in the words of paragraph (c) of section 16 of the same
Code.
Section 4 of said Code, which provides that the officers elected in the
regular elections on the second Tuesday in December of every triennial shall
assume office on the first day of January next following, if interpreted, as we
think it should be, in harmony with the principle that the law abhors a
vacancy in government, would impose upon the actual incumbents the duty
and confer upon them the right to continue in office until their successors
actually assume it in accordance with law. It is not disputed in the case at
bar that this latter event has not yet happened.
His Excellency, the President of the Commonwealth, in his first
message to the First Congress of the Philippines, delivered on June 9, 1945,
said:
"As I stated in Leyte, in praising the guerrillas we should not be
forgetful of the loyal civilians who were left behind and, at the risk of
their lives, supported the resistance movement. Included among these
civilians were those who, at the beginning of the war, were civil service
employees or holders of subordinate positions in the government, and
who remained at their post to protect the people and extend to them
all possible aid and comfort. They should, as a general principle, be
recalled as soon as their services should be needed; only for strong
reasons should they be deprived of their privilege to serve. This policy
applies as well to elected provincial and municipal officials who were
chosen in the election of 1940, thus giving due consideration to the will
of the people as expressed at the polls ". (Italics supplied.)
Petitioners herein were among the "municipal officials who were chosen in
the elections of 1940." Under the facts of the instant case, no implication
from the quoted declarations of said message can be more logical than that
the President considered the principle of hold-over applicable to the public
officials, particularly municipal officials, mentioned by him.
The foregoing quotation is made not because the message has the
force and effect of law (see p. 25, majority decision) but as showing the
interpretation of the Chief Executive of what the law provides as regards the
vital question of hold-over. It is elementary that the construction placed
upon the law by the executive department of the government is of great aid
in its proper interpretation. The majority also say that the said message
"would work against the alleged right to hold-over," and the following
reasoning is given in support of this assertion: "If provincial and municipal
officers are entitled by law to hold-over, they would have the right to
continue in office irrespective of any policy which the President may adopt,
for the latter cannot deprive them of said right. If the President has to recall
and appoint them to their respective original positions pursuant to such
policy, it is because they are not entitled to hold- over." As we maintain
toward the end of this dissent, our opinion is that petitioners had and have
the right to continue in office without need of Presidential appointment. We
there say: "in our opinion they (petitioners) legally retained their seats and
needed no Presidential appointment." Their "recall" of which the President's
quoted message speaks, as we construe this message, is not equivalent to
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 appointment, but merely to a notice to them, and to other public officials
similarly situated, that the Commonwealth Government, in general, and the
City Government of Manila, in particular, were ready to resume their
functions, and that they should return to the respective posts occupied by
them immediately before the war.
The solution of the question here presented hinges on the proper
construction and application of the pertinent precept of section 16 of the
Election Code. This section is obviously designed to guard against vacancies
in elective provincial or municipal offices — preventing them, where possible,
and in other cases, shortening their duration to a minimum; and this the law
has proposed to do in the manner determined in the various subsections of
said section 16, according to the different situations therein respectively
provided for. Hence, we should interpret its provisions in that way which
would carry out its evident purpose. Let us consider, one by one, its deferent
subsections, and see if any — and which — is applicable to the case at bar.
"VACANCY. A place which is empty. The term is principal applied
to cases where the office is not filled". (Vol. 3, Bouvier's Law Dictionary,
3d Revision, p. 3385.)
Subsection ( a) refers to a temporary vacancy in an elective local office.
In such case the office retains its incumbent, but the incumbent is not
actually exercising the functions of his office due to some temporary
inability, incapacity or cause, e.g. sickness, absence, suspension, or the like.
The vacancy being temporary, the appointment by the President or the
Provincial Governor, as the case may be, necessarily has to be likewise
temporary — coeval with the vacancy itself. When the temporary vacancy
ceases by the return to office of the incumbent, the temporary substitute
gives way to him (Rev. Adm. Code, sec. 2439). This subsection provides a
specific remedy for the specific case it deals with. This is clearly not the case
of a vacancy caused by the expiration of the incumbent's term where there
is no hold-over.
Evidently, the phrase "temporary vacancy" used by our legislators in
section 16 (a) of the Election Code refers to a case where the office has not
lost its incumbent permanently so as to necessitate the election or
appointment of a permanent substitute. Undoubtedly, the Philippine National
Assembly which enacted the Election Code had the legitimate power to use
this phrase and the word "vacancy" and to give them the meaning that they
saw fit without being bound by technical definitions of the same terms in
other jurisdictions. If we were to give the term "vacancy" in said subsection
the meaning that the office is without an incumbent, then, in our opinion, the
vacancy would no longer be temporary but permanent. As we understand
the provision, the lawmaker had to devise a phrase to denote the situation of
an office having an incumbent but who is unable to exercise or is not
actually exercising its functions due to some temporary cause or reason.
Subsection ( b) deals with the case of an elective local office which
becomes vacant as a result of the death, resignation, removal or cessation
of the incumbent. It also provides the method of filling the vacancy therein
referred to. In the very nature of things, there can be no question of hold-
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 over here, as the incumbent who dies, resigns, is removed or ceases, cannot
possess such a right. This is unquestionably not the case before us.
Subsection ( c) speaks of the case where the election for a local office
"fails to take place on the date fixed by law, or such election results in a
failure to elect." And it directs the procedure primarily to be followed "to fill
said office", and it is this:
". . . the President shall issue as soon as practicable, a
proclamation calling a special election to fill said office."
Secondarily, that is, in case such special election "has been called and
held and shall have resulted in a failure to elect, the President shall fill the
office by appointment." (Subsection [e].)
Thus for the specific contingency spoken of in subsection (c) — which is
our case — the law provides a special procedure for the selection of the
incumbent's successor, viz., primarily, by a special election which shall be
called "as soon as practicable" by Presidential proclamation; and,
secondarily (under subsection [e]), in case such special election has been
called and held and shall have resulted in a failure to elect, then by
Presidential appointment.
The phrase "as soon as practicable" in said subsection (c), in our
opinion, clearly indicates that the legislator foresaw the possibility of delay in
the issuance of the required Presidential proclamation or the holding of the
special election, the duration of which delay — long or short — he had no
means of foretelling. But the legislator, of course, knew that in case of such
delay, whether short or long, the office would be left vacant if he should
prohibit the incumbent from holding over in the meantime. He has not
expressly imposed this prohibition. As a general proposition, the country had
nothing to gain and everything to lose by such prohibition. Shall we imply
that the law-maker intended it? We are not prepared to indulge such
legislature excluded the possibility of war being the cause of the delay —
when the Election Code was enacted the possibility of another world war and
its involving the Philippines was not at all out of the question. In the absence
of a positive contrary showing, we must presume that the representatives of
the people in the legislature acted not only with foresight but with
farsightedness and wisdom, and accordingly intended against leaving the
office vacant, pending the selection and qualification of the incumbent's
successor according to the procedure which they were laying down.
As already pointed out, that selection could only be by Presidential
appointment under subsection (e) in case the special election required by
subsection (c) has been called and held and has resulted in a failure to elect.
The majority are of opinion that under subsection (a) the President is
authorized "to appoint a person or persons to fill the temporary vacancy
during the interregnum" (pp. 27, 28, majority decision), that is, during the
"delay in the election or appointment of the successor in cases contemplated
in the provisions of subsections (c) and (d)" (p. 27, majority decision). We
cannot agree with this view. If there is no hold-over, as maintained by the
majority, the vacancy created by the expiration of the term - such expiration
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 is understood in the case of subsection (c) — is permanent and not
temporary as in the case of subsection (a). Hence, no appointment can be
made in such a case under the authority of subsection (a). An appointment
to fill a permanent vacancy, in cases authorized by law, is necessarily
permanent — "for the unexpired term of the office," in the words of
subsection (f). We understand a vacancy to be permanent where the office
permanently loses its incumbent by some physical or legal reason of a
permanent nature - such as expiration of the term, death, resignation,
removal, abandonment, permanent physical or mental disability, or the like.
And, speaking concretely of a vacancy created by the expiration of the term,
to say that it may be filled by appointment, is to render impossible the
special election provided for in subsection (c), because under subsection (f)
the appointee would in such case "hold the same (office) for the unexpired
term" (italic supplied), which in the same case could only refer to the next
ensuing term.
Subsection ( d) is concerned with the case of a local officer — elect who
dies before assumption of office, or, having been elected provincial or
municipal officer, his election is not confirmed by the President for disloyalty,
or who fails to qualify, for any reason. Admittedly, this is not our case.
Subsection ( e) has already been considered in connection with
subsection (c).
Subsection ( f) merely provides that the person appointed or elected to
fill a vacancy in an elective provincial or municipal office shall hold the same
for the unexpired term of the office. It clearly refers to a permanent vacancy.
And referring, as it does, to an elective provincial or municipal office, in case
the next election for said office should fail to take place on the date fixed by
law, or should such election result in a failure to elect, then again subsection
(c) would be brought into play, and if it fails to secure an election, then
subsection (e) will provide the remedy.
It is self-evident that if the person appointed or elected to fill a vacancy
in an elective provincial or municipal office is to hold the office "for the
unexpired term", in the words of subsection (f) of section 16 of the Election
Code, such appointment or election is permanent, as contradistinguished
from a temporary one. If so, said vacancy must of necessity be likewise
permanent — it would be a contradiction in terms to say that a temporary
vacancy is to be filled by a permanent appointment or election. Hence, the
appointment or election mentioned in said subsection (f) cannot refer to the
case of subsection (a), firstly, because the latter subsection speaks only of
appointment and not election, and, secondly, because it is concerned with a
temporary vacancy. Therefore, subsection ( f) can only relate to the cases of
subsections (b), (c), (d), and (e) is a permanent vacancy. Now, that vacancy
is in the very nature of things permanent from its inception down to the end.
So that, in the specific case of subsection (c), for example, we cannot say
that in one part of its duration the vacancy is temporary, and in the
remaining part it is permanent. If, then, there can be no temporary vacancy
under subsection (c), there can be temporary appointment in its case under
the authority of subsection (a).
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 "162. Rule in Absence of Specific Provision . — Apart from any
constitutional or statutory regulation on the subject, there seems to be
a general rule that an incumbent of an office will hold-over after the
conclusion of his term until the election and qualification of a
successor, and this, notwithstanding a provision rendering one elected
to an office ineligible to succeed himself." (43 Am. Jur., p. 20.)
"164. Operation and Effect of Authorization to Hold-Over. —
The purpose of provisions authorizing public officers to hold-over is to
prevent a hiatus in the government pending the time when a successor
may be chosen and inducted into office. While the authorities differ as
to the effect of the provision, according to many authorities the effect
of such provision is to add an additional contingent and defeasible term
to the original fixed term, and to prevent the happening of vacancies in
office except by death, resignation, removal, and the like. In other
words, according to such authorities, there is no vacancy to be filled by
the appointing power. The period between the expiration of an officer's
term and the qualification of his successor is as much a part of the
incumbent's term of office as the fixed constitutional or statutory
period. This is true even where a person is elected his own successor.
While there is authority to the contrary, it has been ruled that one who
holds-over until his successor is qualified continues as the incumbent
of the office although he has formally resigned and his resignation has
been accepted." (43 Am. Jur., pp. 21-22.) (Italics supplied.)
"A Mayor of a municipal corporation who has been regularly
elected to the office is entitled to serve until his successor is qualified;
and while he continues to so serve on account of a failure to elect his
successor, there is no vacancy in the office, nor is the council
authorized to make an appointment thereto." (State ex. rel. Bachman
vs. Wright, 56 Ohio St., 540; 47 N. E., 569.)
"Where the constitution provides that sheriffs shall be elected at
a general election and shall hold their office for a term of three years
beginning on the first Monday in January next after their election, and
'until their successor shall be duly qualified' and 'all vacancies' not
otherwise provided for shall be filled as provided for by law, the
vacancies referred to are not those occurring at the expiration of a
regular term, since those are provided for by the phrase, until their
successors 'shall be duly qualified.'" (Com. ex rel. King vs. King, 85 Pa.,
103.)
"So, the provision of the Constitution that the duration of an
office not fixed by the constitution should not exceed four years does
not preclude an officer whose term of office had expired from holding
over beyond such period where his successor has not been elected.
(People ex rel. Madden vs. Straton, 28 Cal., 44; People ex rel. Hinton
vs. Hammond, 66 Cal., 654; 6 Pac., 741; People ex rel. Parsons vs.
Edwards, 93 Cal., 153; 28 Pac., 831; State ex rel. Carson vs. Harrison,
113 Ind., 434; 3 Am. St. Rep., 663; 16 N. E., 384.)"
As to the objection made in the majority opinion that there are only
four petitioners but six respondents, we are of opinion that said objection is
not insurmountable. The four petitioners being, in our opinion, still entitled to
the corresponding four seats in the Municipal Board of Manila, those four
seats were not vacant when the correlative appointments were made. Of the
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 ten persons named in paragraph 7 of the petition, as having been appointed
by the President, Piedad Montenegro, Valeriano Fugoso, Segundo Agustin
and Pascual Santos, were among those elected to the Board in the general
elections of December 10, 1940, and in our opinion they legally retained
their seats and needed no Presidential appointment. This leaves six, namely,
Gerardo Angeles, Agaton Evangelista, Andres Santamaria, Amado V.
Hernandez, Felicidad Manuel, and Vicente G. Cruz. Who should be ousted?
Four of the six seats actually occupied by these six appointees legally
belong, in our opinion, to the four petitioners. Said four seats should be
vacated. It would seem but just and logical that the last four of said six
appointees, in the order of their appointments or commissions, are the ones
who should be ousted.
We conclude that the ouster of said last four appointees should be
decreed, and that petitioners should be declared legally entitled to occupy,
and exercise all the powers and rights appertaining to, their office on the
Municipal Board of Manila, and to receive and enjoy its emoluments, and
bound to comply with the corresponding duties.

MORAN, C.J., OZAETA, and PARAS, JJ.:

We concur in the foregoing dissenting opinion of Justice Hilado.

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