De los Santos vs. Mallare

No officer or employee in the Civil Service, whether in the classified or unclassified service, may be removed or suspended except for cause as provided by law, and a statutory provision authorizing removal at pleasure is inconsistent with the Constitution and is thereby repealed. The exceptions to this protection are limited to positions that are policy-determining, primarily confidential, or highly technical in nature.

The petitioner, Eduardo de los Santos, was appointed City Engineer of Baguio on July 16, 1946, by the President, with the appointment confirmed by the Commission on Appointments on August 6 of that year. He qualified for and began exercising the duties of the position on August 23, 1946. The City of Baguio is governed by Chapter 61 of the Revised Administrative Code, which includes Section 2545 authorizing the Governor General (now President) to remove at pleasure certain enumerated officers, including the city engineer. The constitutional question centers on Section 4, Article XII of the Constitution, which provides that no officer or employee in the Civil Service shall be removed or suspended except for cause as provided by law.

Eduardo de los Santos was appointed City Engineer of Baguio on July 16, 1946, by the President, and the appointment was confirmed by the Commission on Appointments on August 6 of the same year. On August 23, 1946, he qualified 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. Thereafter, on June 3, 1950, 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 office. When the City Mayor and the other officials named as Mallare's co-defendants ignored him and paid Mallare the salary corresponding to the position, Santos commenced these proceedings. It was admitted in the respondents' answer that the City Engineer of Baguio belongs to the unclassified service. The petitioner rested his case on Section 4, Article XII of the Constitution, which provides that no officer or employee in the Civil Service shall be removed or suspended except for cause as provided by law.

• Constitutional Security of Tenure: Petitioner argued that under the Constitution, he cannot be removed against his will and without cause, invoking Section 4, Article XII of the Constitution which provides that no officer or employee in the Civil Service shall be removed or suspended except for cause as provided by law.
• Ineffectiveness of Mallare's Appointment: Petitioner contended that respondent Mallare's appointment was ineffective insofar as it adversely affected his emoluments, rights, and privileges as City Engineer of Baguio, and that the complaint against the other respondents concerned merely their recognition of Mallare as the lawful holder of the disputed office.

• Removal at Pleasure: Respondents argued that Section 2545 of the Revised Administrative Code, which falls under Chapter 61 entitled "City of Baguio," authorizes the Governor General (now President) to remove at pleasure any of the officers enumerated therein, one of whom is the city engineer.
• Unclassified Service Exception: Respondents urged reconsideration of the decision in Lacson vs. Romero insofar as officers in the unclassified service are concerned, contending that only officers and employees in the classified service should be brought within the purview of Article XII of the Constitution.
• Presidential Discretion: Respondents argued that the President's pleasure is itself a cause for removal, and that tying the hands of the appointing power in changing and shifting officers in the unclassified service would seriously cripple the President in the discharge of his grave duty and responsibility to take care that the laws be faithfully executed.

• Validity of Removal at Pleasure: Whether Section 2545 of the Revised Administrative Code, authorizing the President to remove the City Engineer of Baguio at pleasure, is still in force notwithstanding Section 4, Article XII of the Constitution.
• Scope of Civil Service Protection: Whether the constitutional protection against removal except for cause extends to officers in the unclassified service or is limited only to those in the classified service.
• Nature of the City Engineer Position: Whether the position of city engineer is policy-determining, primarily confidential, or highly technical in nature, such that it falls within the exceptions to the constitutional protection.
• Constitutional Majority Requirement: Whether the Court's judgment operates as an invalidation of Section 2545 of the Revised Administrative Code so as to require the concurrence of two-thirds of all the members of the Court under Section 10, Article VIII of the Constitution.

• Validity of Removal at Pleasure: No. Section 2545 of the Revised Administrative Code, insofar as it authorized the Governor General (now President) to remove officers at pleasure, is incompatible with the constitutional inhibition that no officer or employee in the Civil Service shall be removed or suspended except for cause as provided by law, and has been repealed by the Constitution.
• Scope of Civil Service Protection: Yes, the protection extends to the unclassified service. The entire Civil Service is contemplated by Section 4, Article XII of the Constitution, except positions which are policy-determining, primarily confidential, or highly technical in nature.
• Nature of the City Engineer Position: No. The office of city engineer is neither primarily confidential, policy-determining, nor highly technical, and therefore the petitioner is entitled to the constitutional protection against removal except for cause.
• Constitutional Majority Requirement: No. The Court was not declaring any part of Section 2545 of the Revised Administrative Code unconstitutional; rather, the particular provision was repealed by the Constitution and ceased to be operative from the time the Constitution went into effect, and therefore does not need a positive declaration of nullity by the Court.

• Validity of Removal at Pleasure: The Court found that Section 2545 of the Revised Administrative Code, which permitted the Governor General (now President) to remove at pleasure any of the enumerated officers including the city engineer, is incompatible with Section 4, Article XII of the Constitution. The two provisions are mutually repugnant and absolutely irreconcilable — one in express terms permits what the other in similar terms prohibits. Under Section 2, Article XVI of the Constitution, all laws shall remain operative unless inconsistent with the Constitution. The Court further defined "for cause" as meaning "for reasons which the law and sound public policy recognized as sufficient warrant for removal, that is, legal cause, and not merely causes which the appointing power in the exercise of discretion may deem sufficient." The cause must relate to and affect the administration of the office, and must be restricted to something of a substantial nature directly affecting the rights and interests of the public.

• Scope of Civil Service Protection: The Court declined to reconsider Lacson vs. Romero and held that the protection extends to officers in the unclassified service. Section 1, Article XII of the Constitution defines the scope of the Civil Service as embracing all branches and subdivisions of the Government, except positions which are policy-determining, primarily confidential, or highly technical in nature. This interpretation is confirmed by Commonwealth Act No. 177, enacted on November 30, 1936, to implement Article XII of the Constitution, which explains Civil Service almost in the identical words 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 Court also noted that at the time of the adoption of the Constitution, Civil Service as embracing both classes of officers and employees possessed definite legal and statutory meaning, with Section 670 of the Revised Administrative Code providing that the classified service embraces all not expressly declared to be in the unclassified service.

• Nature of the City Engineer Position: The Court held that the office of city engineer is neither primarily confidential, policy-determining, nor highly technical. A primarily confidential position denotes not only confidence in the aptitude of the appointee for the duties of the office 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. 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 specific reference to the City Engineer of Baguio, his powers and duties are carefully laid down in 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 supposed to possess a technical skill or training in the supreme or superior degree, and the duties of a city engineer are eminently administrative in character and could very well be discharged by non-technical men possessing executive ability.

• Constitutional Majority Requirement: The Court held that its judgment does not operate as an invalidation of Section 2545 of the Revised Administrative Code requiring the concurrence of two-thirds of all the members of the Court. The Court was not declaring any part of Section 2545 unconstitutional; rather, the particular provision which gave the Chief Executive power to remove officers at pleasure was repealed by the Constitution and ceased to be operative from the time the Constitution went into effect. Unconstitutionality denotes life and vigor, and unconstitutional legislation presupposes posteriority in point of time to the Constitution. A law that has been repealed is as good as if it had never been enacted, and cannot contravene or pretend to contravene constitutional inhibition. The questioned part of Section 2545 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. Consequently, the petitioner cannot be deemed to have accepted the conditions and limitations attached to the appointment under the abrogated provision.

• Security of Tenure in the Civil Service — No officer or employee in the Civil Service shall be removed or suspended except for cause as provided by law. This protection extends to both the classified and unclassified services, with the only exceptions being positions that are policy-determining, primarily confidential, or highly technical in nature. The Court applied this doctrine to hold that the City Engineer of Baguio, being in the unclassified service but not falling within any of the exceptions, could not be removed at the pleasure of the President.

• Definition of "For Cause" — "For cause" means for reasons which the law and sound public policy recognize as sufficient warrant for removal, that is, legal cause, and not merely causes which the appointing power in the exercise of discretion may deem sufficient. Officers may not be removed at the mere will of those vested with the power of removal, or without any cause. The cause must relate to and affect the administration of the office, and must be restricted to something of a substantial nature directly affecting the rights and interests of the public.

• Repeal by Constitutional Inconsistency — A statutory provision that is incompatible with a constitutional provision is repealed by the Constitution and ceases to be operative from the time the Constitution went into effect. Unlike legislation passed in defiance of the Constitution, such a provision does not need a positive declaration of nullity by the court; it is non-existent, outlawed, and eliminated from the statute book by the Constitution itself by express mandate.

• Contemporaneous Construction — The interpretation given by the legislature to constitutional provisions through implementing legislation may be applied as a contemporaneous construction, affording an index to the meaning of the Constitution as conceived by its framers. Though not conclusive, such interpretation is generally conceded as being entitled to great weight.

• Primarily Confidential, Policy-Determining, and Highly Technical Positions — These three classes of positions are excluded from the merit system, and dismissal at pleasure of officers and employees appointed therein is allowed by the Constitution. A primarily confidential position denotes close intimacy which insures freedom of intercourse without embarrassment or freedom from misgivings of betrayals of personal trust or confidential matters of state. A policy-determining position is one where the officer formulates a method of action for the government. A highly technical position requires technical skill or training in the supreme or superior degree.

• "The phrase 'for cause' in connection with the removals of public officers has acquired a well-defined concept. 'It means for reasons which the law and sound public policy recognized as sufficient warrant for removal, that is, legal cause, and not merely causes which the appointing power in the exercise of discretion may deem sufficient. It is implied that officers 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 office, and must be restricted to something of a substantial nature directly affecting the rights and interests of the public.'" — This passage defines the controlling doctrine of "for cause" as used in Section 4, Article XII of the Constitution, and is the canonical formulation of the standard for lawful removal of civil service officers.

• "The first clause is a definition of the scope of Civil Service, the men and women which section 4 protects. It seems obvious from that definition that the entire Civil Service is contemplated, except positions 'which are policy-determining, primarily confidential or highly technical in nature.'" — This passage establishes that the constitutional protection against removal except for cause extends to the entire Civil Service, including the unclassified service, with only three specified exceptions.

• "The office of city engineer is neither primarily confidential, policy-determining, nor highly technical." — This is the Court's categorical conclusion on the nature of the position at issue, which determines the applicability of the constitutional protection to the petitioner.

• "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 officers at pleasure has been repealed by the Constitution and ceased to be operative from the time that instrument went into effect." — This passage distinguishes between a declaration of unconstitutionality and a finding of repeal by constitutional inconsistency, which has significant procedural implications regarding the required number of votes.

• Lacson vs. Romero, 47 Off. Gaz., 1778 — Controlling precedent, followed. The Court in that case ruled that officers or employees in the unclassified as well as those in the classified service are protected by Section 4, Article XII of the Constitution. The Court declined the respondents' invitation to reconsider this ruling.

• U.S. vs. Sprague, 282 U.S., 716; 75 L. ed. 640; 51 S. Ct., 220; 71 A.L.R., 1381 — Cited in support of the principle of contemporaneous construction, which the Court applied to give weight to Commonwealth Act No. 177 as an index to the meaning of Civil Service as conceived by the framers of the Constitution.

• Den ex dem. Murray vs. Hoboken Land and Improv. Co., 18 How. (U.S.), 272; 15 L. ed., 372 — Cited in support of the principle of contemporaneous construction of constitutional provisions.

• Clark vs. Boyce, 20 Ariz., 544; 185 P., 136 — Cited in support of the principle of contemporaneous construction.

• Okanogan Indians vs. United States, 279 U.S., 665; 64 A.L.R., 1434; 73 Law ed., 894 — Cited for the rule of construction that words used in the Constitution are to be given the sense they have in common use.

• Rhode Islands vs. Massachusetts, 12 Pet., 657; 9 Law ed., 1233 — Cited for the proposition that courts must look to the history of the times and examine the state of things existing when the Constitution was framed and adopted.

• Mattox vs. United States, 156 U.S., 237; 39 Law ed., 409 — Cited for the proposition that the Constitution should be interpreted in the light of the law then in operation.

• State ex-rel. Mack vs. Guckenberger, 139 Ohio St., 273; 39 NE. (2d), 840 — Cited for the definition of unconstitutional legislation as a statute that attempts to validate and legalize a course of conduct the effect of which the Constitution specifically forbids.

• Section 4, Article XII, Constitution — Provides that no officer or employee in the Civil Service shall be removed or suspended except for cause as provided by law. This is the central constitutional provision applied in the case, protecting the petitioner from removal at the pleasure of the President.

• Section 1, Article XII, Constitution — Provides that a Civil Service embracing all branches and subdivisions of the Government shall be provided by law, and that appointments in the Civil Service, except those which are policy-determining, primarily confidential, or highly technical in nature, shall be made only according to merit and fitness. The Court used this provision to define the scope of the Civil Service protected by Section 4.

• Section 2, Article XVI, Constitution — Provides that all laws of the Philippine Islands shall continue in force until the inauguration of the Commonwealth of the Philippines, and thereafter such laws shall remain operative unless inconsistent with the Constitution, until amended, altered, modified, or repealed by the Congress of the Philippines. The Court applied this provision to determine that Section 2545 of the Revised Administrative Code, being inconsistent with the Constitution, ceased to be operative.

• Section 10, Article VIII, 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 that no treaty or law may be declared unconstitutional without the concurrence of two-thirds of all the members of the Court. The Court held that this provision was not applicable because the judgment did not operate as an invalidation of Section 2545 but rather as a recognition of its repeal by the Constitution.

• Section 2545, Revised Administrative Code — Authorized the Governor General (now President) to remove at pleasure any of the officers of the City of Baguio enumerated therein, one of whom is the city engineer. The Court held that this provision, insofar as it authorized removal at pleasure, was repealed by the Constitution.

• Section 2557, Revised Administrative Code — Prescribed the powers and duties of the City Engineer of Baguio, which the Court found to be essentially ministerial in character, supporting the conclusion that the position is not policy-determining.

• Sections 670 and 671, Revised Administrative Code — Defined the classified and unclassified services, respectively. The Court used these provisions to establish that Civil Service as embracing both classes of officers and employees possessed definite legal and statutory meaning when the Constitution was approved.

• Commonwealth Act No. 177 — Enacted on November 30, 1936, to implement Article XII of the Constitution. The Court applied this Act as a contemporaneous construction affording an index to the meaning of Civil Service as conceived by the framers of the Constitution.

Moran, C.J., Ozaeta, Paras, Pablo, and Montemayor, JJ., concurred in the decision of Justice Tuason.

• Justice Bengzon (concurring) — Concurred 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 that no officer or employee in the civil service shall be removed or suspended except for cause as provided by law. Justice Bengzon declined to go into the matter of alleged conflict with the Constitution, first, because the plaintiff is precluded from raising that question (citing 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; and third, because that subject need not be inquired into except when absolutely necessary for the disposition of the controversy.

• Justice Reyes (concurring) — Concurred in the opinion of Justice Bengzon.