Garces vs. Court of Appeals

Mandamus does not lie to enforce a claim to a public office that never became vacant, since the petitioner's right is not founded clearly in law; where the title to the office is disputed and the incumbent continues to occupy and exercise its functions, quo warranto is the proper remedy. Corollarily, a COMELEC resolution that is merely administrative — involving the choice of an appointee to an appointive position for the operational set-up of the agency — is not a "decision, order, or ruling" reviewable by the Supreme Court on certiorari under Section 7, Article IX-A of the 1987 Constitution, and the controversy is cognizable by the Regional Trial Court.

Petitioner Lucita Q. Garces and respondent Claudio Concepcion were both Election Registrars under the Commission on Elections, while respondent Salvador Empeynado served as Provincial Election Supervisor of Zamboanga del Norte. The dispute unfolded during the transition period following the 1986 change of government, under Article III, Section 2 of the Provisional Constitution (Proclamation No. 3, March 25, 1986), which provided that all elective and appointive officials and employees under the 1973 Constitution would continue in office until otherwise provided by proclamation or executive order, or upon the designation or appointment and qualification of their successors, if made within one year from February 25, 1986. In an act of auto-limitation, the government issued Executive Order No. 17 on May 28, 1986, enumerating the grounds for separation or replacement of officials under that organic provision.

Petitioner Lucita Q. Garces and respondent Claudio Concepcion both held positions as Election Registrars under the Commission on Elections, while respondent Salvador Empeynado served as Provincial Election Supervisor of Zamboanga del Norte. On July 27, 1986, Garces was appointed Election Registrar of Gutalac, Zamboanga del Norte, in replacement of Concepcion, who was in turn transferred to Liloy, Zamboanga del Norte. Both appointments were approved by the Civil Service Commission and were to take effect upon assumption of office. Concepcion, however, refused to transfer posts, having not requested the transfer, and he continued to occupy the Gutalac office. Garces, for her part, was directed by the Office of the Assistant Director for Operations to assume the Gutalac post, but she could not do so because Empeynado issued a Memorandum prohibiting her from assuming office on the ground that the position was not vacant.

On February 24, 1987, the same Office of the Assistant Director directed Garces to defer her assumption of the Gutalac post. On April 15, 1987, she received a letter from the Acting Manager of the Finance Service Department, enclosing a check to cover expenses for the construction of polling booths and addressed to "Mrs. Lucita Garces E.R. Gutalac, Zamboanga del Norte," which Garces interpreted as superseding the deferment order. Meanwhile, because Concepcion continued occupying the Gutalac office, the COMELEC en banc cancelled his appointment to Liloy.

On February 26, 1988, Garces filed before the Regional Trial Court a petition for mandamus with preliminary prohibitory and mandatory injunction and damages against Empeynado and Concepcion, among others. In the meantime, the COMELEC en banc, through a Resolution dated June 3, 1988, resolved to recognize Concepcion as the Election Registrar of Gutalac and ordered that the appointments of Garces to Gutalac and of Concepcion to Liloy be cancelled. Empeynado thereupon moved to dismiss the petition on the grounds that the COMELEC Resolution had rendered the case moot and academic and that the case was cognizable only by the COMELEC under Section 7, Article IX-A of the 1987 Constitution.

The trial court dismissed the petition for mandamus on two grounds: that quo warranto was the proper remedy, and that the "cases" or "matters" referred to in the Constitution pertain only to those involving the conduct of elections. On appeal, the Court of Appeals affirmed the dismissal. In the proceedings below, it was established as a matter of fact that Concepcion continuously occupied the disputed position and exercised the corresponding functions thereof, a circumstance the Supreme Court treated as decisive in characterizing the controversy as one involving title to office.

• Clear Legal Right to the Gutalac Post: Petitioner Garces claimed that she had a clear legal right to the Gutalac post, which she insisted was deemed vacated at the time of her appointment and qualification, the vacancy having been created by Section 2, Article III of the Provisional Constitution.
• Propriety of Raising Jurisdiction on Appeal: Garces contended that the issue of jurisdiction could not be raised for the first time on appeal, although the records revealed that the matter had in fact been tackled in the court a quo.

• No Vacancy in the Gutalac Post: Respondent Concepcion posited that he did not vacate his Gutalac post because he did not accept the transfer to Liloy.
• Moot and Academic; COMELEC Jurisdiction: Respondent Empeynado moved to dismiss the petition on the ground that it had been rendered moot and academic by the COMELEC Resolution, and that the case was cognizable only by the COMELEC under Section 7, Article IX-A of the 1987 Constitution.
• Proper Mode of Review of the COMELEC Resolution: Empeynado argued that the COMELEC Resolution cancelling Garces' appointment as Election Registrar of Gutalac should be raised only on certiorari before the Supreme Court and not before the RTC, otherwise the latter court would become a reviewer of an en banc COMELEC resolution contrary to Section 7, Article IX-A.

• Propriety of Mandamus: Whether petitioner's action for mandamus is proper.
• Jurisdiction: Whether this case is cognizable by the Regional Trial Court or by the Supreme Court.

• Propriety of Mandamus: No. Mandamus applies only where the petitioner's right is founded clearly in law and not when it is doubtful; Garces' claim to the Gutalac post was manifestly doubtful because the post never became vacant and her appointment was deferred and later cancelled. Quo warranto, not mandamus, was the proper remedy.
• Jurisdiction: The Regional Trial Court. Section 7, Article IX-A of the 1987 Constitution is inapplicable because no case or matter was filed before the COMELEC; the assailed resolution was an administrative act concerning an appointive official, and the RTC has original jurisdiction over all cases not within the exclusive jurisdiction of any court, tribunal, person, or body exercising judicial or quasi-judicial functions.

• Propriety of Mandamus: Article III, Section 2 of the Provisional Constitution provided that all elective and appointive officials and employees under the 1973 Constitution would continue in office until otherwise provided by proclamation or executive order, or upon the designation or appointment and qualification of their successors, if made within one year from February 25, 1986. That organic provision did not require any cause for the removal of an appointive official under the 1973 Constitution; the transition period envisioned an "automatic" vacancy, so that the mere appointment and qualification of the successor removed an incumbent from his post. The government, however, in an act of auto-limitation and to prevent indiscriminate dismissal of government personnel, issued Executive Order No. 17 on May 28, 1986, which enumerated five grounds for separation or replacement of elective and appointive officials authorized under Article III, Section 2: (1) existence of a case for summary dismissal pursuant to Section 40 of the Civil Service Law; (2) existence of probable cause for violation of the Anti-Graft and Corrupt Practices Act as determined by the Ministry Head concerned; (3) gross incompetence or inefficiency in the discharge of functions; (4) misuse of public office for partisan political purposes; and (5) any other analogous ground showing that the incumbent is unfit to remain in the service or that his separation or replacement is in the interest of the service. Not one of these grounds was alleged to exist, much less proven by petitioner when Concepcion was transferred from Gutalac to Liloy. Moreover, Concepcion was transferred without his consent, and a transfer requires a prior appointment; if made without the consent of the official concerned, it is tantamount to removal without valid cause, contrary to the fundamental guarantee of non-removal except for cause under Article IX-B, Section 2(3) of the 1987 Constitution. Concepcion's transfer was thus legally infirm and without effect, for he was not validly terminated, and his appointment to the Liloy post was incomplete because he did not accept it, acceptance being indispensable to complete an appointment. Consequently, Concepcion's post in Gutalac never became vacant, and under the basic precept in the law of public officers that no person, however qualified and eligible, may be appointed to an office which is not vacant, there could be no valid appointment to a non-vacant position; the incumbent must first be legally removed, or his appointment validly terminated, before another could be validly installed to succeed him. Garces' appointment was moreover ordered deferred by the COMELEC, and that deferment order was never unequivocally lifted; worse, her appointment to Gutalac was cancelled by the COMELEC en banc. These factors negated her claim to a well-defined, clear, and certain legal right to the Gutalac post; on the contrary, her right to the office was manifestly doubtful and highly questionable. Mandamus will not lie, as it applies only where the petitioner's right is founded clearly in law and not when it is doubtful, and it will not issue to give a petitioner something to which he is not clearly and conclusively entitled. Considering that Concepcion continuously occupied the disputed position and exercised the corresponding functions thereof, the proper remedy should have been quo warranto and not mandamus. Quo warranto tests title to one's office claimed by another and has as its object the ouster of the holder from its enjoyment, while mandamus avails to enforce clear legal duties and not to try disputed titles. Garces' reliance on the 1964 Tulawie case was misplaced for material and different factual considerations: in Tulawie, the disputed office of Assistant Provincial Agriculturist was clearly vacant and the petitioner's appointment was confirmed by the higher authorities, making his claim to the disputed position clear and certain, and his petition for mandamus was against the Provincial Agriculturist who never claimed title to the contested office. In the present case, there was no vacancy in the Gutalac post and petitioner's appointment, upon which she based her claim, was revoked, rendering her claim uncertain.
• Jurisdiction: Respondent Empeynado challenged the jurisdiction of the RTC, contending that this was a "case" or "matter" cognizable by the COMELEC under Section 7, Article IX-A of the 1987 Constitution, and that the COMELEC resolution cancelling Garces' appointment should be raised only on certiorari before the Supreme Court and not before the RTC, failing which the latter court would become a reviewer of an en banc COMELEC resolution. The contention was without merit. Section 7, Article IX-A provides that each commission shall decide by a majority vote of all its members any case or matter brought before it within sixty days from the date of its submission for decision or resolution, that a case or matter is deemed submitted upon the filing of the last pleading, brief, or memorandum required by the rules of the commission or by the commission itself, and that unless otherwise provided by the Constitution or by law, any decision, order, or ruling of each commission may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from receipt of a copy thereof. This provision is inapplicable because there was no case or matter filed before the COMELEC; on the contrary, it was the COMELEC's resolution that triggered the controversy. The "case" or "matter" referred to by the Constitution must be something within the jurisdiction of the COMELEC — that is, it must pertain to an election dispute. The settled rule is that "decisions, rulings, orders" of the COMELEC that may be brought to the Supreme Court on certiorari under Section 7, Article IX-A are those that relate to the COMELEC's exercise of its adjudicatory or quasi-judicial powers involving elective regional, provincial, and city officials. In this case, what was being assailed was the COMELEC's choice of an appointee to occupy the Gutalac post, which is an administrative duty done for the operational set-up of an agency. The controversy involved an appointive, not an elective, official, and hardly could such a matter call for the certiorari jurisdiction of the Supreme Court. To rule otherwise would burden the Court with trivial administrative questions best ventilated before the RTC, a court which the law vests with the power to exercise original jurisdiction over all cases not within the exclusive jurisdiction of any court, tribunal, person, or body exercising judicial or quasi-judicial functions.

• Mandamus lies only to enforce a clear legal right, not to try disputed titles — Mandamus applies only where the petitioner's right is founded clearly in law and not when it is doubtful; it will not issue to give a petitioner something to which he is not clearly and conclusively entitled. In this case, Garces' right to the Gutalac post was manifestly doubtful and highly questionable because the post never became vacant and her appointment had been deferred and cancelled, so mandamus was unavailable.
• Quo warranto as the proper remedy for disputed title to public office — Quo warranto tests the title to one's office claimed by another and has as its object the ouster of the holder from its enjoyment, whereas mandamus avails to enforce clear legal duties and not to try disputed titles. Because Concepcion continuously occupied the disputed position and exercised the corresponding functions, the proper remedy was quo warranto.
• Requisites of a valid appointment: acceptance is indispensable — Acceptance is indispensable to complete an appointment. Concepcion's appointment to the Liloy post was incomplete because he did not accept it, and consequently his transfer was legally infirm and without effect.
• No appointment to a non-vacant position — It is a basic precept in the law of public officers that no person, no matter how qualified and eligible he is for a certain position, may be appointed to an office which is not vacant; there can be no appointment to a non-vacant position, and the incumbent must first be legally removed, or his appointment validly terminated, before one could be validly installed to succeed him.
• Transfer without consent is tantamount to removal without cause — A transfer requires a prior appointment; if the transfer is made without the consent of the official concerned, it is tantamount to removal without valid cause, contrary to the fundamental guarantee of non-removal except for cause.
• Automatic vacancy under Article III, Section 2 of the Provisional Constitution — The transition period from the old to the new Constitution envisioned an "automatic" vacancy; the organic provision did not require any cause for the removal of an appointive official under the 1973 Constitution, and the mere appointment and qualification of the successor removed an incumbent from his post. This was, however, qualified by Executive Order No. 17, which enumerated five grounds for separation or replacement and which applied because it was passed prior to the issuance of Concepcion's transfer order.
• Scope of COMELEC certiorari jurisdiction under Section 7, Article IX-A — The "case" or "matter" referred to by the Constitution must be something within the jurisdiction of the COMELEC, i.e., it must pertain to an election dispute. Decisions, rulings, or orders of the COMELEC that may be brought to the Supreme Court on certiorari under Section 7, Article IX-A are those that relate to the COMELEC's exercise of its adjudicatory or quasi-judicial powers involving elective regional, provincial, and city officials. A purely administrative act — such as the choice of an appointee to an appointive position — is not reviewable thereunder.
• Residual original jurisdiction of the Regional Trial Court — The RTC has original jurisdiction over all cases not within the exclusive jurisdiction of any court, tribunal, person, or body exercising judicial or quasi-judicial functions, and is the proper forum for administrative questions that would otherwise burden the Supreme Court.

• "If the transfer was made without the consent of the official concerned, it is tantamount to removal without valid cause contrary to the fundamental guarantee on non-removal except for cause." — This passage states the ratio for the finding that Concepcion was never validly removed from the Gutalac post, which in turn negated any vacancy upon which Garces could anchor a clear legal right.
• "Corollarily, Concepcion's post in Gutalac never became vacant. It is a basic precept in the law of public officers that 'no person, no matter how qualified and eligible he is for a certain position may be appointed to an office which is not vacant.'" — This is the canonical formulation of the non-vacancy rule applied to defeat the petitioner's claim of a clear legal right, and it is the doctrinal core of the ruling on the propriety of mandamus.
• "Quo warranto tests the title to one's office claimed by another and has as its object the ouster of the holder from its enjoyment, while mandamus avails to enforce clear legal duties and not to try disputed titles." — This passage distinguishes the two extraordinary remedies and supplies the reason the petition for mandamus could not prosper.
• "The 'case' or 'matter' referred to by the constitution must be something within the jurisdiction of the COMELEC, i.e., it must pertain to an election dispute." — This defines the constitutional limitation on the COMELEC's adjudicatory jurisdiction and grounds the holding that the assailed resolution, being administrative and concerning an appointive official, was cognizable by the RTC.

• Tulawie vs. The Provincial Agriculturist of Sulu, 120 Phil. 595 — Distinguished. The petitioner relied on it, but the Court held it inapplicable because the disputed office there was clearly vacant and the appointment was confirmed by higher authorities, and the respondent never claimed title to the contested office.
• Radia vs. Review Committee Under E.O. 17, 157 SCRA 749 — Cited to support the proposition that Article III, Section 2 of the Provisional Constitution did not require any cause for the removal of an appointive official under the 1973 Constitution and that the transition period envisioned an automatic vacancy.
• Dario vs. Mison, 176 SCRA 85 — Cited for the same proposition on the automatic vacancy contemplated during the transition period.
• Palma-Fernandez vs. dela Paz, 160 SCRA 751 — Cited for the rule that a transfer requires a prior appointment and that a transfer without the consent of the official concerned is tantamount to removal without valid cause.
• Javier vs. Reyes, 170 SCRA — Cited for the rule that acceptance is indispensable to complete an appointment.
• Costin vs. Quimbo, 205 Phil. 117 — Cited for the basic precept that no person may be appointed to an office which is not vacant.
• Filipinas Engineering & Machine Shop vs. Ferrer, 135 SCRA 25 — Cited for the rule that decisions, rulings, or orders of the COMELEC reviewable on certiorari under Section 7, Article IX-A are those relating to the COMELEC's exercise of its adjudicatory or quasi-judicial powers.
• Gloria vs. de Guzman, 249 SCRA 126 — Cited to characterize the COMELEC's choice of an appointee to occupy the Gutalac post as an administrative duty done for the operational set-up of an agency.
• Lota vs. Court of Appeals, 112 Phil. 619; 2 SCRA 715 — Cited for the distinction between quo warranto, which tests title to office, and mandamus, which enforces clear legal duties and does not try disputed titles.
• University of San Agustin vs. C.A., 230 SCRA 761; Tamano vs. Manglapus, 214 SCRA 587; Sanson vs. Bamos, 63 Phil. 198; Marcelo vs. Tantuico, Jr., 142 SCRA 439 — Cited collectively for the rule that mandamus will not lie where the petitioner's right is doubtful.
• National Investment Department Authority vs. Aquino, 163 SCRA 153 — Cited for the rule that mandamus will not issue to give a petitioner something to which he is not clearly and conclusively entitled.
• Pilar vs. Secretary of Public Works, 19 SCRA 360 — Cited in connection with the remedy of quo warranto.

• Article III, Section 2, Provisional Constitution (Proclamation No. 3, March 25, 1986) — Provided that all elective and appointive officials and employees under the 1973 Constitution shall continue in office until otherwise provided by proclamation or executive order, or upon the designation or appointment and qualification of their successors, if made within one year from February 25, 1986. The Court held that this provision did not require cause for removal and envisioned an automatic vacancy upon the appointment and qualification of the successor.
• Executive Order No. 17 (May 28, 1986) — Enumerated five grounds for the separation or replacement of elective and appointive officials authorized under Article III, Section 2 of the Provisional Constitution: (1) existence of a case for summary dismissal under Section 40 of the Civil Service Law; (2) existence of probable cause for violation of the Anti-Graft and Corrupt Practices Act as determined by the Ministry Head concerned; (3) gross incompetence or inefficiency; (4) misuse of public office for partisan political purposes; and (5) any other analogous ground showing unfitness to remain in the service or that separation or replacement is in the interest of the service. The Court applied E.O. No. 17 because it was passed prior to the issuance of Concepcion's transfer order, and found that none of the grounds was alleged or proven.
• Article IX-B, Section 2(3), 1987 Constitution — Embodies the fundamental guarantee of non-removal of civil service officers and employees except for cause. The Court invoked it in holding that Concepcion's transfer without his consent was tantamount to removal without valid cause.
• Article IX-A, Section 7, 1987 Constitution — Provides that each commission shall decide by a majority vote of all its members any case or matter brought before it within sixty days from submission, and that unless otherwise provided by the Constitution or by law, any decision, order, or ruling of each commission may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from receipt of a copy thereof. The Court held the provision inapplicable because no case or matter was filed before the COMELEC, and because the assailed act was administrative rather than adjudicatory.
• Article IX-C, Section 2(2) — Cited in connection with the rule that COMELEC decisions reviewable on certiorari are those involving elective regional, provincial, and city officials.
• Section 19(6), Batas Pambansa Blg. 129, as amended by Section 1 of Republic Act No. 7691 (Expanded Jurisdiction Law) — Vests the Regional Trial Court with original jurisdiction over all cases not within the exclusive jurisdiction of any court, tribunal, person, or body exercising judicial or quasi-judicial functions. The Court relied on this provision in holding that the controversy belonged to the RTC.

Narvasa, C.J., Davide, Jr., Melo, and Panganiban, JJ., concur.