Tayko vs. Capistrano

A judge who continues to hold office after reaching the statutory retirement age, without a successor having been appointed, remains a de facto judge; his title to office cannot be questioned by prohibition but only in a quo warranto proceeding, and his official acts are valid as to the public and third persons.

Felipe Tayko, Eduardo Bueno, Bautista Tayko, Bernardo Solde, and Vicente Elum were parties in election protests and criminal cases for violation of the election law in the Court of First Instance of Oriental Negros following the June 5, 1928 general election. Nicolas Capistrano was the respondent judge of that court, Alfredo B. Cacnio was the provincial fiscal, and Juan Gadiani was a respondent in the proceedings. Section 148 of the Administrative Code, as amended, fixed the service of Judges of First Instance and auxiliary judges until they reach sixty-five years, while section 1679 authorized the judge of the Court of First Instance to appoint an acting provincial fiscal when the provincial fiscal was disqualified, unable, or failed to discharge his duties. Section 226 of the Code of Civil Procedure governed the writ of prohibition against a judge acting without or in excess of jurisdiction.

Felipe Tayko, Eduardo Bueno, Bautista Tayko, Bernardo Solde, and Vicente Elum were parties in civil and criminal election cases in the Court of First Instance of Oriental Negros arising from the June 5, 1928 general election. Nicolas Capistrano was the respondent judge of the Court of First Instance of Oriental Negros, having been appointed to hold office during good behavior until he reached the age of sixty-five. Alfredo B. Cacnio was the provincial fiscal of Oriental Negros, and Juan Gadiani was also a respondent.

Because of the many election protests and criminal cases for violation of the election law filed in the Court of First Instance of Oriental Negros arising from the last election, Judge Sixto de la Costa was designated and acted as auxiliary judge of Oriental Negros. Petitioners alleged that between the auxiliary judge and respondent judge there was an understanding, and that the assignment of the auxiliary judge was made with this understanding, that the auxiliary judge would hear and take cognizance of all election protests and criminal actions then pending or to be filed arising from the last general election, while respondent judge would try and hear the ordinary cases pending in the court. Notwithstanding this understanding, respondent judge tried and continued to take cognizance of the election protests and criminal actions. Respondent judge declared in open court that he would try the criminal cases because the auxiliary judge refused to try them on the ground that the preliminary investigations were held before him, but petitioners alleged that the auxiliary judge did not make the statement imputed to him and was and still is willing to try the election protests and criminal cases.

Petitioners further alleged that respondent judge took great interest and active part in the filing of criminal charges against them, to the unjustifiable extent of appointing a deputy fiscal, who then filed the proper informations when the provincial fiscal refused to file criminal charges against petitioners for violation of the election law for lack of sufficient evidence. Respondent judge continued to hold the office of judge and pretended to be duly qualified and acting judge of the province, and petitioners alleged reasonable ground to believe that he would take cognizance of the cases in question unless restrained.

Petitioners also alleged that respondent judge had reached the age of sixty-five and, under section 148 of the Administrative Code as amended, was disqualified from acting as a judge of the Court of First Instance. They alleged that he was neither a judge de jure nor de facto, but continued to hold the office and to act as such judge, and that in so acting he acted and was about to act without and in excess of jurisdiction and after the loss of jurisdiction. The petition sought a writ of prohibition to enjoin respondent judge from making cognizance of the civil and criminal election cases in which petitioners were parties.

• Case-Distribution Understanding: Petitioners alleged that the assignment of the auxiliary judge to Dumaguete was made with the understanding that he would hear and take cognizance of all election contests and criminal causes for violation of the election law, while respondent judge would take cognizance of ordinary cases, and that respondent judge nevertheless tried and continued to take cognizance of the election protests and criminal actions.
• Disqualifying Prosecutorial Involvement: Petitioners alleged that respondent judge took great interest and an active part in the filing of criminal charges against them, to the unjustifiable extent of appointing a deputy fiscal who filed the proper informations when the regular provincial fiscal refused to file them for lack of sufficient evidence.
• Expiration of Term and Lack of Judicial Status: Petitioners alleged that respondent judge was already over sixty-five years of age and had automatically ceased as judge of the Court of First Instance of Oriental Negros under section 148 of the Administrative Code as amended, and that he was neither a judge de jure nor de facto.
• Jurisdictional Challenge: Petitioners alleged that in acting as a duly qualified judge notwithstanding these facts, respondent judge acted and was about to act without and in excess of jurisdiction and after the loss of jurisdiction, warranting prohibition.

• No Divestment of Jurisdiction: Respondents demurred on the ground that none of the facts alleged in the petition divested respondent judge of his jurisdiction to take cognizance of the cases referred to in the complaint.
• De Facto Judge and Prohibition Not a Substitute for Quo Warranto: Respondents argued that even admitting as true the facts alleged in paragraph 7 of the petition, respondent judge was still a de facto judge and his title to the office and his jurisdiction to hear the cases could not be questioned by prohibition, which cannot be treated as a substitute for quo warranto.

• Effect of Case-Distribution Understanding: Whether a mere understanding between respondent judge and the auxiliary judge as to the distribution of election cases deprived respondent judge of jurisdiction, such that prohibition lies.
• Disqualification by Appointment of Acting Fiscal: Whether respondent judge's active participation in the filing of criminal charges through the appointment of an acting provincial fiscal disqualified him from trying the cases.
• Expiration of Term and De Facto Status: Whether respondent judge, having reached sixty-five and ceased to be a de jure judge under section 148 of the Administrative Code as amended, remained a de facto judge.
• Availability of Prohibition to Question Title: Whether prohibition may be used to question the title to office of a judge de jure or de facto or to restrain his official acts.

• Effect of Case-Distribution Understanding: No. A mere understanding as to the distribution of cases for trial did not deprive respondent judge of the jurisdiction conferred upon him by law; under section 226 of the Code of Civil Procedure, prohibition to a judge lies only where he acts without or in excess of jurisdiction.
• Disqualification by Appointment of Acting Fiscal: No. The appointment of an acting provincial fiscal under section 1679 of the Administrative Code was within respondent judge's jurisdiction; the determination whether the fiscal failed to discharge his duty lay largely within the judge's sound discretion, and no abuse was alleged.
• Expiration of Term and De Facto Status: Yes. Although respondent judge was no longer a de jure judge under section 148 of the Administrative Code as amended, he remained a de facto judge, exercising judicial duties under color of appointment, with no successor appointed and good faith presumed.
• Availability of Prohibition to Question Title: No. The title of a de jure or de facto judge can only be determined in a proceeding in the nature of quo warranto and cannot be tested by prohibition; the official acts of a de facto judge are valid as to the public and third persons.

• Effect of Case-Distribution Understanding: A writ of prohibition to a judge of an interior court will only lie where he acts without or in excess of his jurisdiction under section 226 of the Code of Civil Procedure. A mere understanding as to the distribution of cases for trial did not deprive respondent judge of the jurisdiction conferred upon him by law. It was not alleged that another judge had taken cognizance of the cases in question or that they had been definitely assigned to trial before such other judge. The first ground therefore failed to establish any jurisdictional defect.

• Disqualification by Appointment of Acting Fiscal: Section 1679 of the Administrative Code provides that when a provincial fiscal is disqualified by personal interest to act in a particular case, or when for any reason he is unable or fails to discharge any of the duties of his position, the judge of the Court of First Instance of the province shall appoint an acting provincial fiscal. The determination of whether the fiscal has failed to discharge his duty in the prosecution of a crime must necessarily, to a large extent, lie within the sound discretion of the presiding judge. No allegation was made that such discretion was abused. The statement that the appointment was "unjustifiable" was only a conclusion of law, not an allegation of facts upon which such a conclusion could be formed, and was disregarded. In appointing an acting fiscal, respondent judge acted well within his jurisdiction.

• Expiration of Term and De Facto Status: The title to the office of a judge, whether de jure or de facto, can only be determined in a proceeding in the nature of quo warranto and cannot be tested by prohibition. Respondent judge had been duly appointed to the office of Judge of the Court of First Instance of Oriental Negros, but section 148 of the Administrative Code, as amended, provides that Judges of the Court of First Instance and auxiliary judges shall be appointed to serve until they reach the age of sixty-five years. Assuming the allegations of the petition to be true, respondent was no longer a judge de jure. He was, however, still a judge de facto. A de facto judge is one who exercises the duties of a judicial office under color of an appointment or election thereto; he differs from a mere usurper who acts without any color of right and from a de jure judge who is legally appointed and qualified and whose term has not expired. Apart from constitutional or statutory regulation, the general rule is that an incumbent holds over after the conclusion of his term until the election and qualification of a successor. When a judge in good faith remains in office after his title has ended, he is a de facto officer. Respondent judge's term may have expired, but his successor had not been appointed, and good faith being presumed, he was regarded as holding over in good faith. The auxiliary judge present in the district could not be considered the regular judge.

• Availability of Prohibition to Question Title: The remedy prayed for could not be granted. The rightful authority of a judge in the full exercise of his public judicial function cannot be questioned by a merely private suitor except in the form especially provided by law. A de facto judge assumes the exercise of a part of the prerogative of sovereignty, and the legality of that assumption is open to attack by the sovereign power alone. The official acts of a de facto judge are just as valid for all purposes as those of a de jure judge, so far as the public or third persons interested therein are concerned, in both civil and criminal cases. The principle is founded in policy and convenience, for the rights of those claiming under the proceedings of an officer with apparent authority would be unsafe if the legality of his title had to be examined in every case. The title of a de facto officer cannot be indirectly questioned in a proceeding for a writ of prohibition or in a suit to enjoin the collection of a judgment rendered by him. Having at least a colorable right to the office, his title can be determined only in a quo warranto proceeding or information in the nature of quo warranto at the suit of the sovereign.

• De facto judge — A de facto judge is one who exercises the duties of a judicial office under color of an appointment or election thereto. He differs from a mere usurper, who undertakes to act officially without any color of right, and from a de jure judge, who is in all respects legally appointed and qualified and whose term of office has not expired. An incumbent of an office generally holds over after the conclusion of his term until the election and qualification of a successor; when a judge in good faith remains in office after his title has ended, he is a de facto officer. In this case, respondent judge had reached the statutory retirement age and was no longer de jure under section 148 of the Administrative Code as amended, but because his successor had not been appointed and good faith was presumed, he remained a de facto judge.

• Prohibition — A writ of prohibition to a judge of an interior court lies only where he acts without or in excess of his jurisdiction under section 226 of the Code of Civil Procedure. A mere understanding as to the distribution of cases for trial does not deprive a judge of the jurisdiction conferred upon him by law. Prohibition cannot be used as a substitute for quo warranto to test the title to a judicial office.

• Appointment of acting provincial fiscal — Under section 1679 of the Administrative Code, when a provincial fiscal is disqualified by personal interest or is unable or fails to discharge any of the duties of his position, the judge of the Court of First Instance of the province shall appoint an acting provincial fiscal. The determination of whether the fiscal has failed to discharge his duty in the prosecution of a crime lies largely within the sound discretion of the presiding judge. In this case, no abuse of discretion was alleged, and the appointment was within respondent judge's jurisdiction.

• Collateral attack on title to public office — The title of a de facto officer cannot be indirectly questioned in a proceeding to obtain a writ of prohibition to prevent him from doing an official act, nor in a suit to enjoin the collection of a judgment rendered by him. Having at least a colorable right to the office, his title can be determined only in a quo warranto proceeding or information in the nature of quo warranto at the suit of the sovereign. The official acts of a de facto judge are valid as to the public and third persons.

• "Briefly defined, a de facto judge is one who exercises the duties of a judicial office under color of an appointment or election thereto (Brown vs. O'Connell, 36 Conn., 432)." — This is the Court's canonical definition of a de facto judge, used to classify respondent judge despite the expiration of his de jure term.
• "When a judge in good faith remains in office after his title has ended, he is a de facto officer (Sheehan's Case, 122 Mass., 445)." — This passage supplies the holdover rule applied to respondent judge, who continued in office after reaching sixty-five because no successor had been appointed.
• "The title of a de facto officer cannot be indirectly questioned in a proceeding to obtain a writ of prohibition to prevent him from doing an official act nor in a suit to enjoin the collection of a judgment rendered by him. Having at least colorable right to the office his title can be determined only in a quo warranto proceeding or information in the nature of a quo warranto at suit of the sovereign." — This states the core remedial rule: prohibition is not the proper proceeding to challenge a de facto judge's title; quo warranto is.
• "A writ of prohibition to a judge of an interior court will only lie in cases where he acts without or in excess of his jurisdiction (section 226, Code of Civil Procedure), and it is obvious that a mere "understanding" as to the distribution of cases for trial did not deprive the respondent judge of the jurisdiction conferred upon him by law." — This passage disposes of the first ground of the petition and confirms that internal case-distribution arrangements do not affect jurisdiction.

• Brown vs. O'Connell, 36 Conn., 432 — Cited for the definition of a de facto judge as one who exercises the duties of a judicial office under color of an appointment or election thereto.
• State vs. Carroll, 38 Conn., 449; Denny vs. Matton, 2 Allen [Mass.], 361; Van Slyke vs. Farmers' Mut. Fire Ins. Co., 39 Wis., 390 — Cited to distinguish a de facto judge from a mere usurper acting without color of right and from a de jure judge legally appointed and qualified whose term has not expired.
• Sheehan's Case, 122 Mass., 445 — Cited for the rule that a judge who in good faith remains in office after his title has ended is a de facto officer.

• Section 226, Code of Civil Procedure — Provides that a writ of prohibition to a judge of an interior court will only lie where he acts without or in excess of his jurisdiction. Applied to reject the claim that a mere understanding on case distribution deprived respondent judge of jurisdiction.
• Section 1679, Administrative Code — Provides that when a provincial fiscal is disqualified by personal interest or is unable or fails to discharge any of the duties of his position, the judge of the Court of First Instance of the province shall appoint an acting provincial fiscal. Applied to uphold respondent judge's appointment of a deputy fiscal as within his jurisdiction.
• Section 148, Administrative Code, as amended — Provides that Judges of the Court of First Instance and auxiliary judges shall be appointed to serve until they reach the age of sixty-five years. Applied to hold that respondent judge was no longer a de jure judge but remained a de facto judge because no successor had been appointed.

Avanceña, C.J., Johnson, Street, Malcolm, Villamor, Romualdez, and Villa-Real, JJ., concur.